Fridays with Rogers Partners
At our weekly Friday meeting, Katrina Taibi discussed the recent decision of the Ontario Superior Court in Chevrier v. Orsanic, 2022 ONSC 6508.
In this case, one of the defendants brought a motion to:
- set aside a noting in default against her;
- allow her to file a Statement of Defence and Crossclaim; and,
- strike an Affidavit she previously swore.
On September 2, 2017, the defendant, Orsanic, was involved in a single vehicle accident while driving an ATV, with the plaintiff, Chevrier, as a passenger. Both sustained serious injuries. The defendant, Papineau, was Orsanic’s common-law spouse, and there was a debate about which of them owned the ATV at the time of the incident.
On February 1, 2018, Orsanic pled guilty to several violations of the Highway Traffic Act. As part of the plea, she adopted an Agreed Statement of Facts, admitting to being the owner and operator of the ATV at the time of the accident.
On September 10, 2018, Chevrier sued Orsanic, Papineau, and Dominion Insurance (Chevrier’s insurer). On April 12, 2019, an order was made adding Intact Insurance (Orsanic’s insurer) as a statutory third party.
On March 11, 2021, the plaintiff’s claim was settled at mediation for $450,000 and paid by Dominion and Intact. The insurers sought to pursue subrogated claims against Orsanic. On March 19, 2021, Orsanic was noted in default.
This motion was initiated by Orsanic on June 10, 2021, and was the first notice to the other parties that she wished to file a Statement of Defence or strike an earlier Affidavit she had provided to Papineau’s lawyer in which, among other things, she admitted to being the owner of the ATV at the time of the accident.
Issue #1 – Setting Aside a Noting of Default:
Rule 19.03(1) of the Rules of Civil Procedure states:
19.03 (1) The noting in default may be set aside by the court on such terms as are just.
In Intact Insurance Company v. Kisel, the Ontario Court of Appeal stated:
When exercising its discretion to set aside a noting of default, a court should assess “the context and factual situation” of the case. It should particularly consider such factors as the behaviour of the plaintiff and the defendant; the length of the defendant’s delay; the reasons for the delay; and the complexity and value of the claim. These factors are not exhaustive.
Application of the Law
The Court set out three considerations for whether to set aside the noting in default:
- Delay in taking steps to file a Statement of Defence;
- The parties’ conduct surrounding the defendant’s failure to file a Statement of Defence; and,
- Prejudice to the parties if the noting in default is or is not set aside.
This motion was brought within a short time after Orsanic was noted in default, which would not typically attract concern. However, the delay at issue was the 3 years since the Statement of Claim was served. The court noted that it was particularly difficult to understand why Orsanic did not file a Statement of Defence since consulting with counsel in mid-2020.
The Court found that “while this gap in the evidence is troubling, it is not, in and of itself, fatal to the Defendant Orsanic’s motion. The Court does not, as a general rule, penalize a party for the default of their counsel.”
Prior to this motion, Orsanic claimed she purchased the ATV from Papineau two days before the accident. However, Orsanic denied this on the motion, claiming that she signed the Bill of Sale several weeks after the accident when Papineau insisted in a scheme to try to protect Papineau’s assets.
Dominion and Intact were innocent parties in this action. They had no knowledge of the alleged scheme and settled the plaintiff’s claim in good faith.
The Court found that Orsanic’s mental health issues and alcohol abuse may explain some of her conduct, but did not neutralize it. Further, she admitted to attempting to perpetrate a fraud, which did not support her position on this motion.
Orsanic argued that permitting her defence to proceed would not impact Dominion nor Intact, who are simply focused on collection, and that allowing her the defend the action may even enhance their position by granting access to Papineau’s assets. However, the Court noted that Papineau is no longer a party to the litigation and has been granted a full and final release.
The worst case scenario for Dominion and Intact, both innocent parties, would be if the alleged scheme was realized. In contrast, there would be very little prejudice to Orsanic if litigation proceeds without her defence. She would likely be found to be at least 1% liable for the accident even if she defends the action, which will expose her to the full amount of the judgement.
If the Court was to grant Orsanic’s motion to set aside the noting in default, it would visit substantial prejudice on the innocent parties who relied on her decision not to defend this proceeding. Therefore, Orsanic’s motion to set aside the noting in default was dismissed.
Issue #2 – Striking Out a Pleading, Affidavit, or Other Document:
Rule 25.11 of the Rules of Civil Procedure states:
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
a) may prejudice or delay the fair trial of the action;
b) is scandalous, frivolous, or vexatious; or,
c) is an abuse of process of the court.
In Allianz Global v. Attorney General of Canada, the Court stated the following:
 […] striking an affidavit is different from striking a pleading. Different purposes are served by pleadings and affidavits and different rules apply. Specifically, affidavits are the evidentiary record for use on a motion or an application and striking the affidavit or portions of it in advance of the main hearing is the narrowing or pruning of the evidentiary record. […]
Application of The Law
Given the Court’s decision not to set aside the noting in default, Orsanic’s request to strike her earlier Affidavit was moot. However, the Court concluded, “the use, if any, to be made of the Affidavit is appropriately left to any future judicial officers who are asked to consider it. That is not a decision which can or should be made in a vacuum.”
 Rules of Civil Procedure, R.R.O. 1990, Reg. 194 under Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 19.03 [Rules of Civil Procedure].
 Intact Insurance Company v. Kisel, 2015 ONCA 205 at para 13.
 Chevrier v. Orsanic, 2022 ONSC 6508 at para 42 [Chevrier].
 Rules of Civil Procedure, supra note 1, s. 25.11.
 Allianz Global v. Attorney General of Canada, 2016 ONSC 29 at para 11.
 Chevrier, supra note 4 at para 65.