Toronto Registry No. D983/98-A A1
DATE: 2002-08-29
ONTARIO COURT OF JUSTICE
BETWEEN:
TZETZA BONEVA,
Applicant (Responding Party),
— AND —
STOYAN BONEV,
Respondent (Moving Party).
Before Justice Paul H. Reinhardt
Heard on 4-5 February 2002; 19 April 2002; and 17 June 2002
Reasons for Judgment released on 29 August 2002
CIVIL PROCEDURE — General — Procedure where rules are silent — Importation from Rules of Civil Procedure — Propriety of importation — Upon review of case law on authority to set aside final order obtained by default, court concluded that practice should be decided by analogy to Rules of Civil Procedure.
JUDGMENTS AND ORDERS — Setting aside — Default judgment — Grounds — Absence of party and party’s lawyer — When neither party nor party’s lawyer appeared on appointed court date, it was open to judge to conclude either that adjournment was appropriate or that there were triable issues — Judge chose to deny adjournment and to making final order of spousal support — That choice was within judge’s discretion — Absence of party and party’s lawyer was therefore not basis for setting aside final order.
JUDGMENTS AND ORDERS — Setting aside — Default judgment — Grounds — Timeliness of motion to set aside — Payor seeking to set aside default judgment of spousal support explained his delay by alleging that he had no knowledge of its making and that his lawyer had been negligent in failing to inform him — Nevertheless, documentary evidence of payor’s communication with lawyer shortly after default order was made against him revealed that he was well aware of order and was discussing means of attacking it — Court discounted payor’s explanation for his delay in bringing application to set aside default order.
STATUTES AND REGULATIONS CITED
Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended].
Family Law Act, R.S.O. 1990, c. F-3 [as amended], subsection 33(8), subsection 33(9) and subsection 37(2).
Family Law Rules, O. Reg. 114/99 [as amended], subrule 1(7), subrule 2(1), rule 10, subrule 15(14), clause 15(14)(e) and subrule 16(6).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [as amended], rule 52.01, rule 59.06, subrule 59.06(2) and clause 59.06(2)(a).
CASES CITED
Catholic Children’s Aid Society of Metropolitan Toronto v. O. (Lisa Marie) and P. (Michael) (1995), 1995 CanLII 6216 (ON CJ), 59 A.C.W.S. (3d) 916, 7 W.D.C.P. (2d) 49, [1996] W.D.F.L. 650, 9 O.F.L.R. 165, [1995] O.J. No. 3971 (Ont. Prov. Div.); affirmed at (1996), 1996 CanLII 7271 (ON SC), 139 D.L.R. (4th) 534, 12 O.T.C. 161, [1996] O.J. No. 3018, 1996 CarswellOnt 3160 (Ont. Gen. Div.); further affirmed at (1997), 1997 CanLII 4445 (ON CA), 102 O.A.C. 232, 149 D.L.R. (4th) 464, 30 R.F.L. (4th) 16, [1997] O.J. No. 3041, 1997 CarswellOnt 2742 (Ont. C.A.).
Catholic Children’s Aid Society of Toronto v. S. (Tenisha) (2002), 2002 CanLII 53318 (ON CJ), 112 A.C.W.S. (3d) 509, [2002] O.J. No. 959, 2002 CarswellOnt 798 (Ont. C.J.).
Children’s Aid Society of Toronto v. T. (Kathleen) and W. (Charles) (2000), 2000 CanLII 20578 (ON CJ), 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.).
Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 111 O.A.C. 201, 164 D.L.R. (4th) 257, 26 C.P.C. (4th) 1, 20 R.P.R. (3d) 207, [1998] O.J. No. 3240 (Ont. C.A.).
Guarantee Co. of North America v. Gordon Capital Corporation, 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, 247 N.R. 97, 126 O.A.C. 1, 178 D.L.R. (4th) 1, 49 B.L.R. (2d) 68, 15 C.C.L.I. (3d) 1, 39 C.P.C. (4th) 100, [1999] S.C.J. No. 60, 1999 CarswellOnt 3171.
Guerriero v. Paul (1990), 1990 CanLII 6690 (ON SC), 73 O.R. (2d) 25, 42 C.P.C. (2d) 318, [1990] O.J. No. 831 (Ont. H.C.).
Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545, 50 O.A.C. 176, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, [1991] O.J. No. 1478, 1991 CarswellOnt 370 (Ont. C.A.).
Khaper v. Khaper (2001), 109 A.C.W.S. (3d) 456, 15 O.F.L.R. 93, [2001] O.J. No. 4310, 2001 CarswellOnt 3859 (Ont. C.J.).
Krycki v. Hughes (2001), 107 A.C.W.S. (3d) 826, [2001] O.J. No. 3460, 2001 CarswellOnt 2996 (Ont. C.J.).
McGee v. McGee (1999), 1999 CanLII 14999 (ON SC), 50 R.F.L. (4th) 418, [1999] O.J. No. 3087, 1999 CarswellOnt 2597 (Ont. Gen. Div.).
Nelligan v. Lindsay et al., [1945] O.W.N. 295, [1945] O.J. No. 91 (Ont. H.C.).
Paul (c.o.b. Club Daytona) v. Shewnarain (1996), 9 O.T.C. 206, 5 C.P.C. (4th) 8, [1996] O.J. No. 2603 (Ont. Gen. Div.).
West v. West (2002), 2001 CanLII 28216 (ON SC), 18 R.F.L. (5th) 440, [2001] O.T.C. 422, [2001] O.J. No. 2149, 2001 CarswellOnt 1936 (Ont. Fam. Ct.).
Yue v. Earl-McIntyre, 2001 CanLII 28178 (ON SC), [2001] O.T.C. 85, 14 R.F.L. (5th) 446, [2001] O.J. No. 392, 2001 CarswellOnt 344 (Ont. S.C.).
AUTHORS AND WORKS CITED
Black’s Law Dictionary, 5th ed. (St. Paul, Minn.: West Publishing Co., 1979), sub verbo “discharge” and “set aside”.
Leroy A. Bleta ....................................................................................................... for the applicant
Johannis W.D. Bruggeman ................................................................................. for the respondent
[1] JUSTICE P.H. REINHARDT:— This is a motion to set aside the final order of Provincial Judge Mary Jane Hatton (as she was then styled), dated 12 November 1998. The primary factual foundation for this motion is the fact, which is not disputed, that neither the respondent, Mr. Bonev, nor his counsel at the time, Martin Z. Goose, were present in court on the date that Judge Hatton made her order.
[2] I wish to briefly review the chronological history of this proceeding.
1: HISTORY OF THE PROCEEDING
[3] On 19 June 1998, Tzetza Boneva brought application and an interim motion against her husband, Stoyan Bonev, for spousal support, along with other relief, returnable on 13 August 1998.
[4] Mr. Bonev responded with an answer on 1 August 1998.
[5] Mr. Bonev then brought his own motion returnable on the 13 August 1998 seeking the release of business and personal records and personal property located at the matrimonial home, 150 Cosburn Avenue, Suite 803, Toronto. He also sought the dismissal of his wife’s claim for interim relief or in the alternative, the limiting of all support to $500 per month.
[6] By order dated 13 August 1998, Judge Hatton ordered interim interim spousal support in the amount of $1,800 commencing on 1 July 1998, disclosure compliance and adjourned the balance of the application to 16 October 1998 for a settlement conference regarding the issue of support.
[7] On 13 August 1998, Leroy Bleta, who has continued to represent her throughout these proceedings, represented Mrs. Boneva.
[8] Carmen DeFacendis of the firm Thompson, MacColl and Stacey in Mississauga represented Mr. Bonev on that date.
[9] On the eve of the settlement conference, Mr. Bonev served an affidavit, dated 15 October 1998, alleging that he was unable to pay any support because of his deteriorating financial circumstances.
[10] By this date, he had retained new counsel, Martin Goose.
[11] On 16 October 1998, the case management judge, Judge Hatton, in the presence of Mr. Bleta and Mr. Goose, adjourned the settlement conference to 12 November 1998 at 2:00 p.m. and ordered that the applicant, Mrs. Boneva, serve a further and detailed written request for disclosure to the respondent.
[12] On 29 October 1998, Mr. Bleta faxed to the law office of Mr. Goose the draft orders of 13 August 1998 and 16 October 1998, for review and approval as to form and content.
[13] By letter dated 11 November 1998, Mr. Goose informed Mr. Bleta that he was not available to attend the settlement conference on 12 November 1998 and that his client was on the road and not available as well. He requested that the matter be adjourned to 20 or 24 November so that he could obtain instructions from his client and file responding material. He also requested that his letter be presented to the settlement conference judge. In his letter, he wrote:
| Thank you for the information you have faxed me at this late date. As I have advised you previously, I am not available on November 12, 1998 at 2 p.m. and would seek an adjournment for two purposes. My client has to gather the materials and I am not in a position to inform him of your latest material as he is on the road and cannot be contacted. I would suggest to you that this matter could be adjourned to November 20 or November 24, 1998, so that we may file responding material. |
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| I know that my client was instructed by me to make payments to FILSIC. If you will remember our conversation in court, I suggested that my client give your client post-dated cheques and your client thought it was better that the matter be dealt with by FILSIC. I notice in all your material you have not mentioned FILSIC. |
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| If you decide to proceed with this Motion, I ask that you present this letter to the Judge as I cannot arrange for an agent at this time. |
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| We would also point out, that the early date was at our insistence as your client wanted the date in February. However, it has been very difficult to obtain the materials indeed. |
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[14] On 12 November 1998, neither Mr. Bonev nor his counsel, Mr. Goose, was present, and Judge Hatton refused the adjournment request, filed the above letter and made a final order in default fixing spousal support at $1,800 per month with costs payable forthwith in the amount of $3,000.
[15] Judge Hatton based her decision on the following: submissions of counsel for Tzetza Boneva; the notice of application; the affidavit and financial statement of Tzetza Boneva both sworn on 17 June 1998; the affidavit of Nikolay Bonev, sworn on 11 August 1998; the affidavits of Stoyan Bonev, sworn on 1 August 1998, 10 August 1998 and 15 October 1998, and the financial statement of Stoyan Bonev, sworn on 1 August 1998. No viva voce evidence was called.
[16] Judge Hatton also ordered that the final order be enforced by the Director of the Family Responsibility Office.
[17] On 12 November 1998, Mr. Bleta faxed Mr. Goose and advised him that Judge Hatton had made a final order together with a cost award of $3,000.
[18] On 21 June 1999, Mr. Goose wrote to the Family Responsibility Office as follows:
| Re: STOYAN BONEV, Case No. 0584100, File No. 08169-98 |
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| Mr. Bonev has given me this matter to respond to you. Mr. Bonev has unfortunately been ill and attempting to attend at our office so that he can give you a formal affidavit as to his financial situation. In the meantime, he encloses his notice of assessment for 1998. As you can see, his income last year was very limited and his prospects are less this year. The order of payment was obtained by default in that Mr. Bonev did not attend at court to challenge the order. Mr. Bonev has limited funds and when he gathers enough funds, we will bring an application to vary the order. In the meantime, he proposes to pay $100.00 a week towards the arrears commencing July 1, 1999. |
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| Yours truly, |
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| MARTIN Z. GOOSE |
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[19] Although enforcement proceedings by way of a default hearing were commenced, they were discontinued on 23 September 1999 because of the Director’s inability to serve Mr. Bonev.
[20] On 1 December 1999, Mr. Bleta again faxed Mr. Goose. He confirmed that they had been in settlement discussions but rejected Mr. Goose’s proposal that the monthly spousal support payments be reduced to $1100.
[21] The Director next appeared in court on 17 February 2000 on a default hearing that was adjourned to 27 March 2000 for purposes of effecting service on Mr. Bonev.
[22] On 19, 22 and 29 January 2000, the Director attempted to serve Mr. Bonev with the notice of default, Director’s statement of arrears and blank financial statement at Apartment 1403, 45 Kingsbridge Garden Crescent in Mississauga, but was unable to effect service.
[23] On 29 February 2000, Justice Marion L. Cohen granted an order of substitutional service on the respondent by prepaid ordinary mail at that address and the matter was further adjourned to 27 March 2000.
[24] On 1 March 2000, Mr. Goose prepared a notice of motion, returnable on 8 May 2000 seeking, inter alia:
| (1) | The elimination, expungement, or cancellation of any and all arrears that have accumulated pursuant to the August 13, 1998 order of Her Honour Judge Hatton and a variation of same. |
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| (2) | The elimination or reduction of the support obligations which the respondent has to pay by reason of spousal support for the applicant, Tzetza Boneva and basing any future spousal support obligation on the respondent’s current financial capabilities; |
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| (3) | A fair and proper accounting between the parties if required; |
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| (4) | An amendment and or correction of the records belonging to the Office of Family Responsibility and the Ministry of Social Services (Ontario Works) in order to reflect the change in the respondent’s financial responsibility to the applicant; |
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| (5) | Due consideration of the respondent’s present financial circumstances, and the undue hardship which he has experienced as a consequence of being required to pay a quantum of spousal support which is far beyond his current financial capabilities; |
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| (6) | The suspension and abandonment of any and all collection and enforcement proceedings against the applicant, including the postponement of the reporting of his debt to the local credit bureau, and a refraining of any driving prohibition or restrictions which might arise as a consequence of the August 13, 1998 order of Her Honour Judge Hatton; |
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[25] Service of the notice of default and other documents by prepaid mail was effected on 14 March 2000.
[26] On 27 March 2000, Mr. Bonev appeared on the return of the default hearing before Justice Cohen, signed a consent order for disclosure prepared by the office of the Director and advised the court of his application to vary. The default hearing was further adjourned to 8 May 2000.
[27] On 8 May 2000, Mr. Goose appeared for Mr. Bonev and Mr. Bleta appeared for Mrs. Boneva. Justice Cohen dismissed the motion for a refraining order as being out of time, and ordered that Mr. Bonev prepare a proper continuing record and provide further, enumerated disclosure. The matter was adjourned on that basis to 8 June 2000.
[28] On 8 June 2000, Mr. Bonev had retained new counsel, Mr. Stanley Ehrlich, who appeared on his behalf. Mr. Bleta again appeared for Mrs. Boneva. On that date, Mr. Bonev consented to a temporary order in the default hearing requiring him to continue to pay the monthly sum of $1800 in spousal support. Justice Judith C. Beaman made an order on consent confirming the continuing obligation and the default hearing was further adjourned. No further orders regarding the quantum of spousal support have been made in the proceeding.
[29] The matter proceeded through the case management process and, on 24 and 25 May 2001, the trial of the variation application began in front of Justice David R. Main but, after 1½ days of trial, Judge Main declared a mistrial because he would be unable to complete the trial before his retirement.
[30] The Family Responsibility Office has continued to pursue the arrears in this case.
[31] By notice of motion dated 11 December 2001, Mr. Bonev, now represented by the firm of Kostyniuk and Bruggeman of Mississauga, brought an application to set aside the final order of Judge Hatton, dated 12 November 1998.
[32] In the affidavit filed in support of this motion, dated 16 October 2001, Mr. Bonev deposed that he was not told by Mr. Goose of the 12 November settlement conference date and that he did not learn of the 12 November final order until early 2000, when he discovered while driving in California that his licence was under suspension in Ontario for failing to pay spousal support.
[33] Mr. Bonev deposed that he has retained the firm of Kostyniuk and Bruggeman to bring an action for damages against Mr. Goose. He further deposed that he did not learn of the possibility of bringing a motion to set aside until so advised by Mr. Robert Kostyniuk in October of 2001.
[34] Mr. Bonev deposed that he had no ability in November of 1998 to pay other than nominal spousal support and that that situation has not changed up until the present.
2: SUBMISSIONS ON BEHALF OF Mr. BONEV
2.1: The Factual Dispute to Be Litigated
[35] Mr. Bruggeman, on behalf of Mr. Bonev, submits that the primary issue in this case is the fact that Martin Goose, solicitor for Mr. Bonev, did not attend the settlement conference. He submits that this is prima facie professional negligence and sets the stage for what followed.
[36] The factual issue in this case is the conflicting affidavit evidence regarding Mr. Bonev’s deteriorating finances. If counsel had been present before Judge Hatton, Mr. Bruggeman submits, he could have pointed out the matters that required judicial scrutiny and explained why a trial was necessary. This is precisely the purpose of a settlement conference under the Family Law Rules, O. Reg. 114/99, as amended.
[37] Mr. Bruggeman submits that the issues raised in the Ms. Ilieva’s affidavit of 30 January 2002, on behalf of her mother, Mrs. Boneva, are all issues that could only be resolved by a trial. A trial court would have to weigh the testimony of the witnesses, make findings of credibility and apply the relevant law.
2.2: The Procedural Argument Regarding a Remedy
[38] Procedurally, Mr. Bruggeman submits that the Family Law Rules do not set out a test for setting aside an order. Subrule 15(14) deals with changing an order. However, under the definition subrule 2(1), “change” when used to refer to an order does not include setting aside that order.
[39] Counsel further submits that subrule 1(7) of the Family Law Rules permits the court, where the rules do not adequately cover a matter, to give directions.
[40] These directions may include reference by analogy to these rules, by reference to the Courts of Justice Act, R.S.O. 1990, c. C-43 (as amended) and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.
[41] The respondent submits that the practice with respect to setting aside orders may be decided by analogy to three separate rules:
| (1) | rule 52.01 (failure to attend trial) of the Rules of Civil Procedure; |
| (2) | rule 59.06 (amending, setting aside or varying order) of the Rules of Civil Procedure; and |
| (3) | subrule 16(6) (order if no issue for trial) of the Family Law Rules. |
[42] Rule 52.01 of the Rules of Civil Procedure permits a judge to set aside a judgment against a party who failed to attend the trial, on such terms as are just.
[43] In the case of Guerriero v. Paul (1990), 1990 CanLII 6690 (ON SC), 73 O.R. (2d) 25, 42 C.P.C. (2d) 318, [1990] O.J. No. 831 (Ont. H.C.), Justice Joseph Potts held that the judgment should be set aside on the rare ground of solicitor’s incompetence:
| The solicitor advised Paul that he was convinced that he could get the matter adjourned in order to retain other counsel. As a result of these assurances, Paul did not attend in court on April 25, 1989. |
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| On April 29, the original lawyer appeared before O’Brien J. at the trial of the action and moved for an adjournment. O’Brien J. refused to grant the adjournment and the lawyer withdrew and the action proceeded in the absence of Paul or counsel on his behalf. |
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| Counsel for the plaintiff (respondent) relied upon Dominion Readers’ Service Ltd. v. Brant (1982), 1982 CanLII 1771 (ON CA), 41 O.R. (2d) 1, 140 D.L.R. (3d) 283 (C.A.), and both counsel agreed that that case comes the closest to the facts in this case. However, in my view, the facts are significantly different and the case can be clearly distinguished. In that case, counsel for the defendant remained at the trial and conducted cross-examination of the witnesses for the plaintiff. |
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| Grange J. stated at p. 9 O.R., p. 291 D.L.R.: |
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| A new trial based entirely upon a solicitor’s incompetence in a civil action should be rare indeed. |
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| In my view, this is such a case. This is the rare case. Paul relied entirely upon his counsel’s assurances that he would be successful in having the case adjourned. There is no evidence that the adjournment would be contested. There is no evidence as to whether or not his original solicitor even contacted the solicitors for the plaintiff advising that he would be seeking an adjournment. In any event, the plaintiff was there ready for trial with witnesses. Essentially, the position of counsel for the plaintiff is that Paul made a deliberate choice whether to attend the trial or whether to attend the meeting in Ottawa. If that had been the case I do not think this motion would have come before me. Having been assured by his solicitor that he would be successful in seeking an adjournment he did not have to make a choice between attending the trial or attending the Ottawa meeting. |
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| Accordingly, an order will go setting aside the judgment of O’Brien J. dated April 25, 1989. |
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[44] Counsel submits that, under subrule 59.06(2) of the Rules of Civil Procedure, a party may seek to have an order set aside on a motion in the proceeding for the relief claimed.
[45] In the case of Paul (c.o.b. Club Daytona) v. Shewnarain (1996), 9 O.T.C. 206, 5 C.P.C. (4th) 8, [1996] O.J. No. 2603 (Ont. Gen. Div.), Justice Sandra Chapnik granted an order setting aside the previous orders that were made without notice as a result of the consent of the plaintiff’s lawyer, without advising his client, to an order requiring that the plaintiff set the matter down for trial by the end of the following month, failing which the defendants were entitled to move without notice to have the action dismissed.
[46] In the case of Nelligan v. Lindsay et al., [1945] O.W.N. 295, [1945] O.J. No. 91 (Ont. H.C.), Justice George A. Urquhart summarised the principles governing the setting aside of a default judgment:
| The principles governing the setting aside of a default judgment are clearly set out in the judgment of Lamont, J.A. in Klein v. Schile, 1921 CanLII 107 (SK CA), 14 Sask. L.R. 220 at 221, [1921] 2.W.W.R. 78, 59 D.L.R. 102 at 103, as follows: |
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| • | The application should be made as soon as possible after the judgment comes to the knowledge of the defendant, but mere delay will not bar the application, unless an irreparable injury will be done to the plaintiff or the delay has been wilful . . . |
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| • | The application should be supported by an affidavit setting out the circumstances under which the default arose and disclosing a defence on the merits . . . |
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| • | It is not sufficient to merely state that the defendant has a good defence upon the merits. The affidavits must show the nature of the defence and set forth facts which will enable the court or judge to decide whether or not there was matter which would afford a defence to the action. . . . |
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| • | If the application is not made immediately after the defendant has become aware that judgment has been signed against him, the affidavits should also explain the delay in making the application; and, if that delay be of long standing, the defence on the merits must be clearly established. |
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[47] Justice Heather Katarynych in Catholic Children’s Aid Society of Toronto v. Tenisha S. (2002), 2002 CanLII 53318 (ON CJ), 112 A.C.W.S. (3d) 509, [2002] O.J. No. 959, 2002 CarswellOnt 798 (Ont. C.J.), recently dealt with a case involving a motion to set aside a default judgment under rule 10 of the Family Law Rules. Justice Katarynych found on the facts that there was no basis in fact or law to set aside the default judgment in the case. In reaching this conclusion, however, she concluded that the argument by analogy, advanced by Mr. Bruggeman in this proceeding, was available to permit the application to set aside in a child protection proceeding:
| [49] The setting aside of a default judgment is a discretionary order, dependent on the court’s evaluation of three factors: whether the motion was made as soon as possible; whether the circumstances giving rise to the default are adequately explained; and the defence on the merits. See Bank of Montreal v. Chu, supra; James Sturino Realty Ltd. v. Andrew Michaels Group Ltd. (1988), 1988 CanLII 4579 (ON SC), 64 O.R. (2d) 410, 28 O.A.C. 354, [1988] O.J. No. 325 (Ont. Div. Ct.); and Hunt v. City of Brantford, supra. |
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| [50] The principles of those cases are as applicable to family law cases as they are to general civil litigation. See, for example, Turoczi v. Dancs (1996), 62 A.C.W.S. (3d) 527, [1996] O.J. No. 1182, 1996 CarswellOnt. 1239 (Ont. Gen. Div.); and Saunders v. Baker (2000), 2000 CanLII 28359 (NL SC), 194 Nfld. & P.E.I.R. 152, 584 A.P.R. 152, [2000] N.J. No. 218, 2000 CarswellNfld 227 (Nfld. Tr. Div.). As a matter of common sense, those principles are apt for child protection proceedings. |
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| [51] It is a fundamental principle underlying the rules of court that cases should be determined on their merits, other things being equal, and not be derailed on a technicality. Mere inattention or forgetfulness and inability to give a good explanation for the failure to respond, though relevant to the exercise of the court’s discretion, is not necessarily fatal to the motion. What is deserving of particularly close scrutiny in whether the respondent has some merit in her defence, whether there is a triable issue. See Langor v. Spurrell (1997), 1997 CanLII 14712 (NL CA), 157 Nfld. & P.E.I.R. 301, 486 A.P.R. 301, 17 C.P.C. (4th) 1, [1997] N.J. No. 264, 1997 CarswellNfld 238 (Nfld. C.A.). |
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| [52] Importing those criteria into this case, Tenisha S. does not have to satisfy this court that she will be able successfully to defend the society’s claim. Her defence must, however, have an air of reality to it, or in the words of rule 20 of the Rules of Civil Procedure, raise a genuine issue for trial. Her onus is to demonstrate to the court that that there is a real issue in controversy that requires adjudication of the facts or the law. If she does not do that, the reopening of the case is a waste of time and delays this child’s planning unnecessarily. The principle of a right to a full hearing must be balanced with the principle that both the parties and the child should be spared the cost and disruption of further litigation if there is no genuine issue for trial. |
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| [53] If a potentially good defence is shown, she should then prima facie be entitled to have the judgment set aside so as to have a trial on the merits. It is not, however, an absolute right. In general civil litigation, the court properly considers all other circumstances of the case, including the timeliness of the motion, whether there is reasonable explanation for not filing a defence within the required timeframe, whether there will be non-compensable prejudice to the applicant if the judgment is set aside and the necessity for bringing finality to disputes. |
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[48] Mr. Bruggeman also submits that, by analogy, the test to apply to the evidence available to the settlement conference judge on a set aside should be the same as that for a summary judgment.
[49] The test for obtaining summary judgment under the Family Law Rules under subrule 16(6) is whether there is a genuine issue requiring the trial of a claim or defence, failing which the courts shall make a final order.
[50] The leading case with respect to obtaining summary judgment in Canada is the decision of Justices Frank Iacobucci and Michel Bastarache in Guarantee Co. of North America v. Gordon Capital Corporation, 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, 247 N.R. 97, 126 O.A.C. 1, 178 D.L.R. (4th) 1, 49 B.L.R. (2d) 68, 15 C.C.L.I. (3d) 1, 39 C.P.C. (4th) 100, [1999] S.C.J. No. 60, 1999 CarswellOnt 3171. On a motion for summary judgment, the applicant must show that there is not a genuine issue of material fact requiring trial. Once the moving party has made that showing, the respondent must establish his claim as being one with a real chance of success. If there is a genuine issue of credibility, a trial is required and summary judgment should not be granted.
[51] This was also the reasoning of the Ontario Court of Appeal in Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545, 50 O.A.C. 176, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, [1991] O.J. No. 1478, 1991 CarswellOnt 370, where Associate Chief Justice John Morden, speaking for the court, concluded that summary judgment should not be granted and a trial is required where there is a “genuine issue of credibility”.
| At the heart of the proceeding before us is the issue of credibility. Mrs. Haut has steadfastly maintained in her evidence that she did not receive a deposit cheque for $10,000 on October 21, 1988. The evidence on behalf of the respondent is that a cheque for $10,000 was delivered to her in the evening of October 21, 1988. |
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| It is a sensible general proposition that, if there is an issue of credibility, a trial is required and summary judgment should not be granted. This is reflected in the settled practice under Rule 56(c) in the United States. In 6 Moore’s Federal Practice, supra, at p. 56-519 the following appears: |
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| The general and well settled rule is that the court should not resolve a genuine issue of credibility at the hearing on the motion for summary judgment, whether the case be a jury or court case; and if such an issue is present the motion should be denied and the issue resolved at trial by the appropriate trier of the facts, where, to the extent that witnesses are available, he will have the opportunity to observe their demeanor. |
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| At pp. 56-521 to 56-522, the following appears in 6 Moore’s Federal Practice, supra, with respect to whether an issue of credibility exists: |
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| Judge Hutcheson’s statement as to the test to be applied in determining whether the materials favorable to the opposing party present an issue of credibility will bear repetition: |
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| To proceed to summary judgment it is not sufficient then that the judge may not credit testimony proffered on a tendered issue. It must appear that there is no substantial evidence on it, that is, either that the tendered evidence is in its nature too incredible to be accepted by reasonable minds, or that conceding its truth, it is without legal probative force. (Whitaker v. Coleman (1940), 115 F.2d 305, 306) |
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| The test has been applied and often quoted. Evidence, then, that is too incredible to be accepted by reasonable minds does not raise an issue of credibility. Conversely, if the evidence is such that a jury would not be at liberty to disbelieve it no issue of credibility is present. Or, stated differently, a summary judgment may be granted on evidence that would compel the direction of a verdict; and should be denied when a directed verdict would be improper. |
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| As the first passage indicates, the proposition that an issue of credibility precludes the granting of summary judgment applies only when what is said to be an issue of credibility is a genuine issue of credibility. In the present case Sutherland J. was satisfied that “this is one of the rare and exceptional cases where in the face of controverted evidence as to a material matter there is no genuine issue for trial” (p. 135 R.P.R.). |
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| With respect, I do not think that the evidence before the court reasonably justifies this conclusion. |
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| Sutherland J. formed the view, and it was open to him to do so on the evidence, that Mrs. Haut was an unsatisfactory witness. He also was impressed by the evidence of the witnesses who testified that the cheque had been presented to Mrs. Haut on October 21. This evidence was referred to by the respondent before us as undisputed objective evidence. With respect, I think that this puts the matter too highly. It would be open to a trier of fact to reject the evidence of Mr. Galanis and his son with respect to presenting the cheque. The acceptance of this evidence, ultimately, turns on the credibility of these witnesses and that of Mrs. Haut. |
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[52] In the case of Yue v. Earl-McIntyre, 2001 CanLII 28178 (ON SC), [2001] O.T.C. 85, 14 R.F.L. (5th) 446, [2001] O.J. No. 392, 2001 CarswellOnt 344 (Ont. S.C.), Justice Susan G. Himel discussed first the case management system, and next the issue of when it is appropriate to grant summary judgment in family law matters. She stated as follows:
| 3. The Case Management System |
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| [12] Case management has been in place in the Toronto area where this case has proceeded for a number of years. A leader in the field, the Ontario Court of Justice sitting at 311 Jarvis implemented a system of assigning a judge to supervise the progress of a case, conduct case conferences and settlement conferences and hear motions. With judicial control of the case, matters have proceeded expeditiously to some type of resolution or to a decision following a trial. It is the philosophy of this initiative that expeditious justice is in the interests of the parties and particularly, children, in family law matters. The other benefit is that one judge acquires knowledge of the case and is able to attend to management of the file through the litigation thereby ensuring consistency, reducing duplication and ultimately saving the parties and court resources a great deal of expense. The result for a case such as this matter before me is that the case management judge acquires extensive knowledge of the file through the litigation process. |
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| 4. Summary Judgment Jurisdiction |
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| [13] The Family Law Rules, O. Reg. 114/99, came into effect on September 15, 1999. Rule 16 sets out the provisions for summary judgment and provides, in part, as follows: |
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| 16.—(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. |
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| (2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. |
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| . . . |
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| (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. |
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| The jurisprudence under rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides guidance on the application of the “genuine issue for trial” test: Children’s Aid Society of the District of Nipissing v. Marielle M. (2000), 2000 CanLII 22922 (ON SC), 98 A.C.W.S. (3d) 134, [2000] O.J. No. 2541, 2000 CarswellOnt 2372 (Ont. S.C.); Children’s Aid Society of Toronto v. Kathleen T. and Charles W. (2000), 2000 CanLII 20578 (ON CJ), 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.); Crawford v. Crawford and Crawford (2002), 101 A.C.W.S. (3d) 1047, [2000] O.J. No. 4746, 2000 CarswellOnt 4765 (Ont. Fam. Ct.); F.I. v. K.F. (2000), 2000 CanLII 22875 (ON SC), 95 A.C.W.S. (3d) 108, [2000] O.J. No. 479, 2000 CarswellOnt 455 (Ont. Fam. Ct.); Bedard v. Huard (2000), 2000 CanLII 22563 (ON SC), 5 R.F.L. (5th) 282, [2000] O.J. No. 969, 2000 CarswellOnt 1129. These cases concerning rule 20 are referred to below. | ||
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