Park v. Park, 2011 ONSC 4234

• Judge: Matlow, Heeney and Pomerance, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 31, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONSC 4234;(2011), 283 O.A.C. 229 (DC)

Park v. Park (2011), 283 O.A.C. 229 (DC)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. SE.009

Jae Sun Park and Keun Jon Park (plaintiffs/respondents) v. Hae Kyung Park and Young Bin Park (defendants/appellants)

(DC 11-270; 2011 ONSC 4234)

Indexed As: Park v. Park

Court of Ontario

Superior Court of Justice

Divisional Court

Matlow, Heeney and Pomerance, JJ.

July 28, 2011.

Summary:

This action arose out of disputes between members of the Park family relating to a residential property and the recovery of certain belongings left by the wife at the property. Counsel for the defendants decided she could not properly deliver a notice of intention to defend or a statement of defence until the defendant wife's capacity was resolved. The plaintiffs noted the defendants in default and moved for an order requiring the defendants to release the wife's belongings.

The Ontario Superior Court granted an interlocutory order. The defendants were granted leave to appeal. The husband and wife were now divorced and the wife's belongings had been recovered. As a result, the appeal raised legal issues relating to the granting of the interlocutory order rather than to the disputes between the parties.

The Ontario Divisional Court held that the errors of law and denials of procedural fairness to the defendants required that the interlocutory order be set aside. The court also commented on the tactical conduct of both counsel which led to the bringing of the appeal.

Barristers and Solicitors - Topic 841

Duty to court - Liability for costs - General - Defendants' counsel (Knudsen) decided she could not properly deliver a notice of intention to defend or a statement of defence until the defendant wife's capacity was resolved - Plaintiffs' counsel (Mouland) decided not to wait any longer for Knudsen to deliver a statement of defence and proceeded with a motion for interlocutory relief - The Ontario Divisional Court commented on the tactical conduct of both counsel - Knudsen ought to have sought consent to an extension of time - Mouland ought not to have presented an order in the form she drafted to Knudsen and the motions judge - "[T]ime, effort, money and court resources were wasted because counsel did not act prudently and exercise good judgment. These factors may be relevant to our disposition of costs" - See paragraphs 40 to 44.

Barristers and Solicitors - Topic 1509

Relationship with client - General - Tactical decisions or errors by counsel - [See Barristers and Solicitors - Topic 841 ].

Barristers and Solicitors - Topic 4009

Relations with other lawyers - General - Notice of default proceedings - [See Barristers and Solicitors - Topic 841 ].

Practice - Topic 5610

Judgments and orders - Default judgments - Interlocutory default judgments - Effect of - The defendants had been noted in default - A motions judge denied defendants' counsel an opportunity to make submissions with respect to the plaintiffs' motion - The Ontario Divisional Court held that the decision reflected an error of law and also resulted in procedural unfairness - Neither Civil Procedure rule 19.02 (1) or rule 19.02 (3) deprived a counsel for defendants who had been noted in default from making submissions on their behalf in response to a motion brought against them - The making of submissions did not fall within the scope of "take any other step" in rule 19.02 (1) (b) - As well, the fact that a defendant who had been noted in default was "not entitled to notice of any step in the action and need not be served with any document" in rule 19.02(3) did not mean that counsel could not independently ascertain the time and place of a motion and attend and make submissions - "[T]here has to be clearer language in the rule to lead to an interpretation that the fundamental right of a counsel to speak on behalf of his or her own client had been taken away" - See paragraphs 21 to 26.

Practice - Topic 5617

Judgments and orders - Default judgments - Bars - Failure of defendant to be heard - The defendants had been noted in default - A motions judge denied defendants' counsel an opportunity to make submissions before hearing the plaintiffs' motion, with respect to whether the defendants' motion to set aside the noting in default of the defendants should be heard before the plaintiffs' motion - The Ontario Divisional Court set aside the order in appeal - "Although it was within the discretion of the motions judge to decide when the motions should be heard and the order in which they should be heard, it was necessary that his discretion be exercised judicially. If the defendants' motion were successful, they would no longer be restricted by consequences of being noted in default set out in rule 19.02 and they would be entitled to deliver material in opposition to the plaintiffs' motion. This decision by the trial judge reflects an error of law and fails to meet the requisite standard of review, correctness. It also resulted in procedural unfairness to the defendants" - See paragraphs 18 to 20.

Practice - Topic 5780

Judgments and orders - Interlocutory or interim orders or judgments - Stay, revocation, variation or reversal of - The Ontario Divisional Court held that the motions judge erred by granting an order that far exceeded in scope the order that was proposed in the plaintiffs' notice of motion - "It cannot be said that the notice of motion served on the defendants gave meaningful notice to the defendants of the order that the plaintiffs stated that they would seek or of the order that the motions judge granted. If the notice of motion had described the order sought in the same language as the order that was granted, the defendants would have had an opportunity to consider it and, if so inclined, to assert their opposition to it differently" - In the result, the court set aside the order in appeal - The motions judge's decision reflected an error of law and failed to meet the requisite standard of review, correctness - See paragraphs 27 to 30.

Practice - Topic 5780

Judgments and orders - Interlocutory or interim orders or judgments - Stay, revocation, variation or reversal of - The Ontario Divisional Court held that the motions judge erred by granting relief in his interlocutory order in terms that were "excessive, unlimited in time and duration and not supported by the evidence" - In the result, each of the decisions by the motions judge as reflected in the order in appeal, reflected errors of law and each failed to meet the requisite standard of review, correctness - The court set aside the interlocutory order - See paragraphs 31 to 36.

Practice - Topic 5780

Judgments and orders - Interlocutory or interim orders or judgments - Stay, revocation, variation or reversal of - The Ontario Divisional Court held that the motions judge erred by failing to provide reasons for his decision that would allow, if required, for a meaningful review on an appeal - The court, nevertheless, was able to adjudicate on this appeal because the errors involved discreet issues of law or because they were otherwise patent and obvious or both - That failure by the motions judge reflected an error of law and failed to meet the requisite standard of review, correctness - In the end result, the court set aside the interlocutory order - See paragraphs 37 to 39.

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See all Practice - Topic 5780 ].

Practice - Topic 6196

Judgments and orders - Setting aside default judgments (incl. noting in default) - General - [See Practice - Topic 5610 and Practice - Topic 5617 ].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 19.02(1), rule 19.02(3) [para. 23]; rule 37.06 [para. 27].

Counsel:

Joan M. Mouland, for the plaintiffs/respondents;

Howard L. Shankman, for the defendants/appellants.

This appeal was heard on May 31, 2011, at Hamilton, Ontario, before Matlow, Heeney and Pomerance, JJ., of the Ontario Divisional Court. In reasons written by Matlow, J., the Court delivered the judgment, released on July 28, 2011.