In a rather unusual case, an Ontario Superior Court judge has set aside a default judgment that was obtained at an uncontested trial where the defendant intentionally decided not to show up.
In September, 2015 the lawsuit was set down for trial for the week of April 18, 2016. In the first week of March, 2016, the defendant’s lawyer informed her that they would not represent her at trial and the defendant signed a Notice of Intention to Act in Person shortly thereafter.
The defendant tried to obtain new counsel without success from March 4 to March 18. She then wrote to the plaintiff’s lawyer on March 22, 2016 requesting an adjournment of the trial. The request was refused on the basis that the defendant had allegedly “fired” her lawyers for tactical reasons.
A pre-trial conference was held on April 18, 2016, the day before the trial was to begin. The defendant attended with her mother and presented the pre-trial conference judge with a doctor’s note stating that the defendant was unable to conduct the trial herself and required a lawyer. The defendant asked the pre-trial conference judge to adjourn the trial. The pre-trial conference judge refused the request and advised the defendant that she would have to make the request to the trial judge. The pre-trial conference judge also advised that such relief would be extremely unlikely and that, if granted, it would come at a heavy cost.
The defendant left the pre-trial devastated and did not believe she would receive a fair hearing at trial. She did not attend the trial the following day and the trial judge struck her defence and counterclaim and awarded judgment and costs to the plaintiff.
Shortly after the trial, the defendant moved for an order setting aside the judgment. The defendant asserted that her failure to attend was due to the fact that she has generalized anxiety disorder and could not attend the trial without a lawyer.
The judge hearing the motion extensively canvassed the jurisprudence and determined that the applicable test required the defendant to (a) make the application to set aside the judgment as soon as reasonably possible; (b) that it be supported by evidence setting forth a reasonable explanation for the failure to attend, and; (c) that it also be supported with evidence of a defence on the merits.
The motion judge held that notwithstanding that the defendant’s decision to not attend the trial was “intentional”, justice required setting aside the default judgment so that the trial could proceed on the merits.
The court ruled that “in the circumstances of the present case, preserving Stacey’s access to justice requires the court to apply Rule 52.01(2) as a mechanism that permits a person with a recognized disability to proceed to a trial of the action on the merits, with legal representation, where her initial failure to attend is reasonably attributable to her heightened emotional response to her lawyer’s removal from the case on the eve of trial, and the pronouncements of the pre-trial conference judge, amplified by her psychological disorder.”
Interestingly, the motion judge did not insist that the defendant pay the costs thrown away of the uncontested trial, although the costs of the motion itself were to be awarded after further written submissions and as such those costs may be still be awarded in favour of the plaintiff.