They failed to clear the ice on their property despite a city order
The Ontario Superior Court of Justice has upheld a default judgment against the property owners who failed to remove ice from their property, which resulted in a slip and fall injury.
In Brown v. Dhaliwal, 2023 ONSC 947, Randy Brown alleged that he fell on the stairs leading to his basement apartment at Jasvir and Mandeep Dhaliwal's property. Brown sustained injuries because of the slip and fall accident. He sued the Dhaliwals, arguing that he fell on ice and snow, which had not been cleared despite Brampton's order requiring the removal of all ice from walkways around the house.
The defendants were noted in default. The court pointed out that the Dhaliwals did not take immediate steps to set aside the judgment. They submitted their claim to their insurer and waited months to determine if their insurance would cover the claim. The insurer ultimately declined their claim. The Dhaliwals then brought a motion for an order to set aside the noting in default against them.
Grounds to set aside a default judgment
The Ontario Superior Court explained that the test to set aside a default judgment is to determine whether the interests of justice favour granting the order. The court must consider the promptness of bringing a motion, any plausible excuse or explanation for the defendant's default, and the existence of facts that could establish that the defendant has an arguable defence on the merits.
The superior court found that the defendants ignored the plaintiff's claim, hoping it would disappear. The court said in its reasons for judgment, "I am deeply troubled by the defendants' cavalier attitude towards this litigation, their corresponding obligations, and effectively, their continued disregard for the rules."
Delay in defending the claim
The court found that the defendants did not provide any plausible explanation for their failure to respond to any of Brown's communications and to defend the claim promptly. They were silent on several critical issues, including the letters from the plaintiff about his accident and Brampton's order to remove the snow and ice from their premises.
Based on the evidence, the court found that the defendants were aware of the claim but chose to ignore it. Further, they only took steps to set aside the default judgment two years later. The court also found that they misrepresented the timeline of their insurance claim to justify the delay in bringing an action in court. The court also found nothing in the defendants' interaction with the insurer that demonstrated any urgent intention to settle the case.
The court emphasized that the defendant must act promptly after discovering the default judgment. They did not have the luxury of time to wait and see if their insurer would accept or deny their claim.
No arguable defence on the merits
The court found numerous weaknesses in the defendants' proposed defence. The defendants' primary assertion is that the accident never occurred. They claimed they did not know who Brown was, that he was never a tenant at their premises and that they did not see anything to suggest that somebody fell on their property on the alleged accident date.
The court said the defendants' allegations were "bald with little to no details." The court explained that the plaintiff is not required to be a tenant to advance a negligence claim under the Occupiers' Liability Act. The defendants also suggested that somebody would have seen an ambulance arrive at their premises if an accident had occurred. However, the court pointed out that Brown never called an ambulance.
The defendants further asserted that the property was well always maintained, and they denied that there was ever any ice that could have caused a person on the premises to fall. However, the defendants failed to explain whether they had complied with Brampton's order to remove all ice from walkways on their property.
The court said that a meritorious defence would be one where the defendants put their best foot forward, acknowledged the existence of the municipality's order and then outlined the steps they took to clear the ice. The court found that the defendants failed to advance such a meritorious defence. Considering the cumulative weaknesses in the defendant's case, the court ultimately decided to dismiss their motion to set aside the default judgment.