



COURT OF APPEAL FOR ONTARIO

CITATION: Lee v. Singh, 2021 ONCA 829

DATE: 20211118

DOCKET: C69281

Feldman, van Rensburg and Coroza
    JJ.A.

BETWEEN

Michael Lee

Plaintiff/Defendant
    by Counterclaim

(Respondent)

and

Shirmati Singh

Defendant/Plaintiff
    by Counterclaim

(Appellant)

Mark Singh, speaking for the appellant

Ash Mazinani on November 2 and
    Elena E. Mazinani on November 5, for the respondent

Heard: November 2, 2021 and
    November 5, 2021 by video conference

On appeal from the order of Justice Hugh
    K. OConnell of the Superior Court of Justice, dated March 11, 2021, with
    reasons at 2021 ONSC 1870.

REASONS FOR DECISION

[1]

The appellant entered into an arrangement with
    the respondent relating to the purchase of a home in Oshawa, Ontario. The
    appellant lives in the home with her spouse Mark Singh and their family. A
    dispute has arisen between the parties as to the ownership of the home. The
    respondent issued a claim in the Superior Court for possession of the property,
    arrears of rent, repayment of a loan, and damages. The respondents position is
    that he is the lawful owner of the property and has paid all carrying costs towards
    the home. The appellant filed a statement of defence and counterclaim claiming that
    the respondent holds the property in trust for her.

[2]

On March 11, 2021, a motion judge struck the
    appellants pleadings because she had not complied with previous orders of the
    Superior Court of Justice to pay occupation rent of $3,000/month. Once the
    appellants pleadings were struck, the respondent obtained default judgment for
    possession of the home on June 10, 2021.

[3]

On this appeal, the appellant claims that the
    motion judge committed several errors in striking her defence and counterclaim
    and asks that the court set aside the orders. At the conclusion of the hearing,
    the court allowed the appeal with reasons to follow. We now provide our
    reasons.

[4]

The appellant did not appear at the hearing of
    this appeal. Mr. Singh advised the court that the appellant was not able to
    argue the appeal because she had just given birth. On consent, we allowed Mr.
    Singh to appear on behalf of the appellant because we were satisfied that he
    has extensive knowledge of the history of this matter, he has appeared for the
    appellant on other occasions, and he was fully prepared to argue the appeal on
    behalf of the appellant.

[5]

Pursuant to a consent order dated March 8, 2019,
    the appellant was required to pay the respondent $3,000/month in occupation
    rent commencing March 1, 2019 until further order of the court or the consent
    of the parties. It is not disputed that the appellant has stopped complying
    with this order.

[6]

On February 4, 2021, the respondent brought a
    motion to strike the appellants pleadings because the appellant had stopped
    paying occupation rent pursuant to the March 2019 order. Based on the
    appellants submissions that she was prepared to pay the arrears owing under
    the March 2019 order, Corkery J. ordered on consent that the appellant pay the
    respondent the sum of $27,000 plus costs of $4,000 on or before February 18,
    2021, that the failure to pay that amount would result in the striking of the
    statement of defence and counterclaim of the appellant, and that if there were
    any further breaches of the March 2019 order, the respondent would have leave
    to proceed with a motion to strike the statement of defence and counterclaim
    without notice to the appellant.

[7]

The appellant did not comply with Corkery J.s
    order. The respondent brought a motion, without notice, to strike the
    appellants pleadings for failure to comply. On March 11, 2021, OConnell J.
    granted the relief and struck the appellants pleadings. The respondent then
    obtained default judgment on June 10, 2021.

[8]

The appellant raises several arguments about the
    decision of the motion judge to strike her pleadings. Her primary submission is
    that a law clerk employed by counsel for the respondent advised Mr. Singh over
    the telephone that a delay in complying with Corkery J.s order was acceptable.
    We do not accept the appellants arguments. We are satisfied that OConnell J. was
    entitled to strike the appellants pleadings based on the record before him and
    that he committed no error in doing so.

[9]

However, during oral argument, Mr. Singh advised
    the court that because he had recently found work, the appellant could satisfy
    the outstanding arrears shortly and that the litigation was ready to proceed in
    the Superior Court of Justice. Counsel for the respondent also acknowledged that
    the litigation was ready for trial and if the orders were set aside, the next
    step would be for the parties to schedule a judicial pre-trial in the Superior
    Court. According to the parties, the appellant has filed an affidavit of
    documents and examinations for discovery are complete.

[10]

The panel directed that if Mr. Singh provided
    funds to counsel for the respondent in the amount of $49,500 by noon on
    November 5, 2021, the appeal would be allowed, and the order striking pleadings
    would be set aside along with the default judgment that followed it. If Mr.
    Singh failed to make payment, the appeal would be dismissed. Counsel for the
    respondent had confirmed that this amount would cover the rent arrears to date
    as well as the outstanding costs awards. The appeal was adjourned until
    November 5, 2021.

[11]

On November 5, counsel for the respondent
    confirmed that Mr. Singh had provided the payment of $49,500.

[12]

In light of the information received from the
    parties and the fact that the appellant paid the full amount claimed in
    arrears, the orders striking the appellants pleadings should be set aside. Having
    now received the arrears, we see no identifiable prejudice to the respondent in
    proceeding with this litigation. In the circumstances of this case, the striking
    of the appellants pleadings is not a proportionate response.

[13]

For these reasons, the appeal is allowed and the
    March 11, 2021 order of OConnell J. striking the appellants pleadings and the
    June 10, 2021 order of Smith J. (as amended by Verner J. on June 28, 2021) granting
    the respondent default judgment are set aside.

[14]

While these reasons were on reserve, the court
    was advised in writing by counsel for the respondent that an incorrect figure had
    been provided by counsel for the respondent during the hearing. The respondent requests
    that the reasons for decision reflect that the appellant actually owed $58,000
    instead of $49,500, resulting in an outstanding balance of $8,500. The
    appellant objects to this request.

[15]

We would simply observe that the payment by the
    appellant of the amount the court was told was the full amount in arrears, $49,500,
    was key to our decision to set aside the order striking the appellants
    pleadings. The appellant complied with the requirement to pay $49,500. Counsel
    for the respondent confirmed the amount in arrears twice during the November 2,
    2021 hearing and, furthermore, raised no issue to the panel on November 5, 2021,
    when payment was confirmed. If a mistake was made, that will have to be proved in
    the ongoing proceedings between the parties. However, except at trial, the
    respondent may only try to claim the now-alleged past arrears in the event of a
    further breach of the Corkery J. order.

[16]

The appellant submitted that because he was successful,
    he should be awarded costs for the appeal in the amount of $2,200. We reject
    this request. The appellant has been granted an indulgence by this court and it
    would not be appropriate to award costs for the appeal. There will be no order
    for costs.


K. Feldman J.A.

K.
    van Rensburg J.A.


S. Coroza J.A.


