Legal Blog

Why should a Defendant noted in default deserve notice?

Tuesday, October 02, 2007

Vointsev v. Irina International Tours Ltd.²⁰⁰⁷ O.J. No. 3626

Vointsev was injured on a tour bus in Toronto in July 2005. The Defendants, Irina were put on notice in September 2005 about the Plaintiffs intention to seek legal action. The Defendant insurer responded by way of correspondence indicating they were going to investigate the matter.

From there, a series of correspondence was exchanged between Plaintiffs counsel and the Defendants insurance company, Lombard. Eventually, the correspondent stopped for some unknown reason and Lombard never responded. Despite, Plaintiff counsels requests neither, Lombard or the Defendant, Irina International Tours ever responded.

The Plaintiff had no further option but to issue and serve a Statement of Claim in July 2006.

Again, neither Lombard or the Defendant Irina International Tours responded. Eventually, the Plaintiff after numerous indulgences noted the Defendant in default.

A trial was held on September 2007 and it was undefended. Justice Thorburn presided over the matter and refused to permit Plaintiffs counsel from filing any medical reports.

Justice Thorburn stated the Defendant was not served with a Notice of Intention indicating the medical reports would be relied on at trial.

Plaintiffs counsel objected and stated he did not have to serve the Notice of Intention since the Defendant was in default. At this point Justice Thorburn, requested authority to that effect.

Plaintiff counsel adjourned the trial returned a few days later and cited Rule 19.02(2)(3) of the Rules of Civil Procedure. This rule clearly sets out that when a Defendant is noted in default he or she is no longer entitled to notice of any steps in the action.

Justice Thorburn then stated, that Rule 19.02(2)(3) was in conflict with section 52 and 53 of the Evidence Act.

Plaintiffs counsel then, had the matter stood down for a few hours to search for additional information.

Plaintiff?s counsel returned and argued that in such situations the Rules of Civil Procedure should supplement the Act. Moreover, pursuant to 1.04 of the Rules of Civil Procedure, the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Justice Thorburn did not accept this view and ruled against the Plaintiff by not allowing the medical reports to be filed. The medical reports the Plaintiff was seeking to rely on were key pieces of evidence that document and support his claim for damages.

This is a very unfortunate ruling. In this case Plaintiffs counsel satisfied their due diligence and were still penalized for no other reason other than failing to notify a Defendant noted in default.

At the end of the day the trial judge did not construe the Rules in a just and expeditious and least expensive manner. In fact, exactly the opposite happened.

Now the injured Plaintiff is left again with no relief and still having to face legal obstacles.

Why does a Defendant who is noted in default deserve any notice? It was the Defendant?s intentional and conscience decision to not act. More importantly, those that drafted the Rules of Civil Procedure had considered this issue and for that reason make it absolutely clear that if you're noted in default you don?t deserve any further notice.

The obligation on a Plaintiff to continue to notify and serve a Defendant noted in default is onerous and quite frivolous.

The case of Vointsev v. Irina International Tours Ltd. was argued by Harv Lewin of Neinstein & Associates.