Mario D. Faieta

The appellant, 1679676 Ontario Inc., appealed a Property Standards Order issued by the City of Toronto concerning three apartment buildings.

The order cited defects related to lighting and building access security.

The court, hearing the matter de novo, modified the order by deleting items related to lighting that the appellant had already complied with.

However, the court confirmed the remaining items, rejecting the appellant's argument that the three buildings constituted a single "complex" for security purposes under the Toronto Municipal Code.

The court affirmed the requirement for individual building security measures, including self-closing/locking doors and two-way communication systems for each building.

The Plaintiff, Enercare Inc., brought a motion to strike portions of the Defendant's (Energy Canada Home Services Inc.) Statement of Defence and Counterclaim (SDC).

The motion sought to strike allegations of anticompetitive conduct, fraudulent misrepresentation, negligent misrepresentation, and unjust enrichment.

The court struck the allegations of anticompetitive conduct, fraudulent misrepresentation, and unjust enrichment, granting leave to amend.

The claim for negligent misrepresentation was struck without leave to amend, as the court found no reasonable chance of success, particularly regarding a duty of care between competitors.

Costs were awarded to the Plaintiff.

The defendant, RBC General Insurance Company, sought leave to bring a motion for summary judgment under Rule 48.04 after the action was set down for trial.

The plaintiff, Lourdes Prabaharan (Boniface), opposed the motion.

The defendant aimed to determine if the plaintiff's damages were covered under OPCF-44R, which requires corroborative evidence for claims involving an unidentified automobile, potentially limiting coverage from $1 million to $200,000.

The court applied the considerations from *Dickson v. Di Michele* regarding leave to bring a motion post-trial list, focusing on whether it would be just, expeditious, and proportionate.

The court found that even if successful, the motion would not extinguish the need for a trial, and there was no explanation for the delay in bringing the motion earlier.

The court dismissed the defendant's motion for leave, finding it would not secure a just, most expeditious, and least expensive determination.

The Applicant, having successfully obtained judgment for damages in a prior application, sought partial indemnity costs.

The Respondent challenged the quantum of legal fees, arguing they were excessive and should be reduced by 25%.

The court, applying the factors under Rule 57.01 of the Rules of Civil Procedure and the principle of proportionality, found the Applicant's claimed time reasonable.

The Respondent's conduct, including delays in delivering records and cross-examinations, was noted as unnecessarily lengthening the proceeding.

The court dismissed the Respondent's request for a reduction and awarded the Applicant the full amount of claimed partial indemnity costs.

The plaintiff, a former nursing student, sued the defendants (individual employees and two educational institutions) for various torts after being wrongfully accused of academic fraud.

The defendants brought a motion to strike portions of the amended statement of claim.

The court struck the claims for personal liability against individual defendants, breach of fiduciary duty, and defamation, but granted leave to the plaintiff to amend the claim within 45 days.

The court found that the plaintiff failed to plead sufficient particulars for personal liability of employees, failed to establish the elements for a fiduciary duty, and did not plead that the defamatory words were spoken or written by the university defendants.

Costs were agreed upon by the parties.

This is an appeal from an arbitration decision concerning a priority dispute between two insurers, Allstate and Intact, regarding statutory accident benefits for Ming Wu Yan.

The central issue was whether Yan was "principally dependent for financial support or care" on her daughter or son-in-law, which would make her an insured person under Allstate's policy.

The court upheld the arbitrator's finding that Yan was principally financially dependent, dismissing Allstate's appeal.

The court affirmed the arbitrator's decision not to impute monetary value to Yan's caregiving services and to exclude her foreign pension income, which was unavailable in Canada, from the dependency analysis.

The court also confirmed that the test for financial dependency requires a holistic "big picture" approach, not solely a mathematical calculation.

The Applicant, a restaurant operator, sought damages for breach of an Agreement of Purchase and Sale (APS) and unpaid interim rent from the Respondent, who intended to purchase the Applicant's assets and lease assignment.

The Respondent failed to complete the purchase, arguing the APS was invalid due to a missed closing date and lack of landlord consent.

The court rectified the closing date, found the Respondent waived strict compliance with deadlines, agreed to pay interim rent, and that the Applicant delivered the landlord's consent.

The Respondent's failure to complete the APS constituted repudiation.

Judgment was awarded to the Applicant for damages and rent.

The plaintiff, hired under a fixed-term agreement, was terminated after less than three months.

She brought a motion for summary judgment seeking damages for the unexpired term and potential renewal, arguing she was an employee and her termination was in bad faith.

The defendant argued she was an independent contractor or legally terminated within probation.

The court found the plaintiff was an employee (applying issue estoppel from an ESA officer's decision) but dismissed her action, concluding that the early termination clause in the fixed-term agreement was clear and unequivocally applied, and no bad faith damages were warranted.

The defendant requested an order under Rule 2.1.01 of the Rules of Civil Procedure to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process.

The plaintiff's action alleged negligence related to a prescription drug and defamation by the Deputy Attorney General.

The court, applying the robust interpretation of Rule 2.1, found the pleading lacked clarity and particulars for defamation and considered the doctrine of absolute privilege.

The court decided to initiate the Rule 2.1 process, directing the Registrar to give notice to the plaintiff, staying the motion, and restricting further filings pending the outcome of the written hearing.

The defendants brought a motion under Rule 2.1.01 of the Rules of Civil Procedure to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process.

The plaintiff's statement of claim alleged a staged motor vehicle accident, falsified police reports, and a conspiracy to harm him, claiming damages for negligence, breach of the Police Services Act, breach of the City of Toronto Act, conspiracy, malicious falsehood, negligent investigation, breach of the Ontario Human Rights Code, and violations of the Canadian Charter of Rights and Freedoms.

The court, applying guidance from the Ontario Court of Appeal in *Scaduto*, found it appropriate to initiate the summary procedure under Rule 2.1.01.

The Registrar was directed to issue a Form 2.1A notice to the plaintiff, inviting written submissions on why the proceeding should not be dismissed, and the motion was stayed pending this review.

Wawanesa Mutual Insurance Company and Wahaj Ahmed brought a motion to compel Romaiya Ahmed, Shi Shang, and Jian Yang to deliver full and final releases following a settlement agreement to dismiss claims against Wawanesa and Wahaj on a 'without costs' basis.

The court found that the delivery of a full and final release is an implied term of settlement unless otherwise agreed, and no such agreement was made.

The court granted the motion, ordering the delivery of the releases.

The Defendant, Woodcliffe Corporation, sought partial indemnity costs of $13,291.85 for a motion, claiming 34.8 hours for newly retained counsel.

The Plaintiff, Mitchell Cohen, argued these hours were unreasonable and disproportionate.

The court, exercising its discretion under section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, considered the principles of indemnity, reasonable expectations of the unsuccessful party, and proportionality.

The court found the time spent by Woodcliffe's counsel excessive, particularly due to the retention of new counsel, and awarded $6,000 in costs, deeming it fair and reasonable given the average complexity of the issues and the plaintiff's reasonable expectations.

The Defendant successfully moved to set aside a default judgment obtained by the Plaintiff.

This endorsement addresses the Defendant's claim for substantial indemnity costs.

The Plaintiff, self-represented, opposed the costs, citing impecuniosity and discontinuance of the action.

The court considered factors under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality.

Despite the Plaintiff's unreasonable conduct and refusal to settle, the court found the Defendant's claimed legal fees excessive for a straightforward motion.

The court awarded the Defendant $8,000 in costs on a substantial indemnity basis.

The defendant, The University of Western Ontario, brought a second motion to strike the plaintiff's Further Amended Statement of Claim.

The plaintiff alleged the university failed to provide satisfactory post-graduate training, leading to his failure of a qualifying examination.

The motion sought to strike claims for breach of contract and breach of fiduciary duty, and argued that the actions fell within academic discretion.

The court ordered the pleadings for breach of contract (paragraphs 8, 11, 44) and breach of fiduciary duty to be struck, both with leave to amend.

The court found it was not plain and obvious that the breach of contract claim failed due to academic discretion immunity, but advised the plaintiff to plead material facts more clearly.

The court clarified that the relationship between a university and its students is not inherently fiduciary and required specific pleading of fiduciary elements.

The plaintiff, Mohammed Siddeeq Arif, sued for damages after being injured during a rock climbing course.

The defendants, Zen Climb and Halton Region Conservation Authority (HRCA), moved for summary judgment to dismiss the action, arguing that Arif had signed two releases of liability and voluntarily assumed the risks.

The court granted summary judgment, finding that Arif was bound by the releases and that the defence of *volenti non fit injuria* applied, as he voluntarily assumed the risks of rock climbing.

The court also denied the plaintiff's request to file further expert evidence or adjourn the motion, emphasizing the plaintiff's failure to put his "best foot forward" in preparing for the summary judgment motion.

The College of Veterinarians of Ontario sought an interlocutory injunction to prevent Birgit Johnston and her business, Cutting Edge K9 Oral Hygiene, from practicing veterinary medicine and holding themselves out as such, specifically concerning anesthesia-free dog teeth cleaning.

The respondents also moved for an adjournment and transfer of the main application.

The court dismissed the College's motion for an interlocutory injunction, finding that while there was a serious issue regarding the practice of dentistry, the College failed to establish irreparable harm or that the balance of convenience favoured granting the injunction.

The main application was adjourned pending the respondents' motion to transfer.

This decision addresses the determination of costs following a one-day trial where the Plaintiffs were awarded judgment against the Hicks Defendants.

Both parties sought costs, with the Plaintiffs claiming $64,325 and the Hicks Defendants claiming substantial indemnity costs from the date of their 2015 offer to settle.

The court considered multiple offers to settle, finding the Hicks Defendants' 2015 offer rescinded by a subsequent 2016 offer and invalid due to a material error.

Applying Rule 49.10 and Rule 57.01(1) of the Rules of Civil Procedure, the court awarded the Hicks Defendants partial indemnity costs of $10,000 from May 12, 2016.

The Plaintiffs were awarded $7,500 for Ezzat F. Gindi's self-representation costs and $11,000 for legal fees incurred.

After offsetting, the Hicks Defendants were ordered to pay the Plaintiffs a net sum of $8,500, inclusive of disbursements and HST.

This appeal concerned the interpretation of Regulation 283/95 under the Insurance Act, specifically whether an insurer disputing liability for statutory accident benefits must provide notice of its dispute to the insured person within the same 90-day period it provides notice to the other insurer.

The arbitrator had found that late notice to the insured was permissible.

The court, applying a purposive approach to statutory interpretation, held that the 90-day period for notifying other insurers also applies to notifying the insured, as indicated by the word "also" in the Regulation and to ensure the insured's rights to participate in the dispute are not nullified.

The court also confirmed that relief from forfeiture is not available for statutory time limits under this regulatory scheme.

The appeal was allowed, and the respondent's dispute was barred due to late notice to the insured.

The plaintiff obtained default judgment against the defendant for wrongful dismissal.

The defendant moved to set aside the default judgment, arguing a plausible excuse for default and arguable defenses, and that the plaintiff had acted unreasonably by obtaining default judgment without notice during ongoing settlement discussions.

The court applied the five factors under Rule 19.08 of the Rules of Civil Procedure, finding that the defendant acted promptly, had a plausible excuse based on an understanding to suspend litigation, and raised arguable defenses.

The court also found that the plaintiff's conduct in obtaining default judgment without notice during settlement discussions was not in the interests of justice.

Consequently, the default judgment was set aside, and the plaintiff's motions to lift a stay and amend the judgment were dismissed as moot.

Case management was ordered. interesting_citations_summary: > This decision provides a practical application of the five-factor test for setting aside default judgment under Rule 19.08, emphasizing the importance of promptness, plausible excuse, arguable defense, relative prejudice, and the integrity of the administration of justice.

It highlights that a course of conduct indicating a suspension of litigation for settlement purposes can constitute a plausible excuse for default, and that obtaining default judgment without notice during such a period can be viewed as contrary to the interests of justice. final_judgement: > The default judgment granted to the plaintiff was set aside.

The plaintiff's motions to lift the stay and amend the default judgment were dismissed as moot.

Case management was ordered for the action. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 4215 file_number: "CV-13-486705" source: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4215/2016onsc4215.html" keywords: - Default judgment - Setting aside - Rule 19.08 - Rules of Civil Procedure - Wrongful dismissal - Human rights - Disability benefits - Settlement discussions - Administration of justice - Case management areas_of_law: - Civil Procedure - Employment Law - Human Rights Law cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" - title: "Employment Standards Act, 2000, S.O. 2000, c. 41" url: "https://www.ontario.ca/laws/statute/00e41" - title: "Human Rights Code, R.S.O. 1990, c.

H.19" url: "https://www.ontario.ca/laws/statute/90h19" case_law: - title: "Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca194/2014onca194.html" - title: "Intact Insurance Company v. Kisel, 2015 ONCA 205, [2015] O.J. No. 1473" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca205/2015onca205.html" --- # Court File and Parties **COURT FILE NO.:** CV-13-486705 **DATE:** 20160624 **ONTARIO SUPERIOR COURT OF JUSTICE** **BETWEEN:** MONIQUE SAVIN Plaintiff – and – GRANITE CLUB Defendant **Counsel:** Monique Savin, on her own behalf Allyson M. Fischer for the Defendant **HEARD:** June 22, 2016 **M. D. FAIETA, J.** --- # INTRODUCTION [1] The Plaintiff was employed by the Defendant for seven months.

Her employment was terminated without cause on March 26, 2012.

The Plaintiff subsequently brought an application before the Human Rights Tribunal against the Defendant.

That application was withdrawn on November 28, 2013.

This action for wrongful dismissal was commenced on August 13, 2013.

The Plaintiff also brought an action on August 13, 2013 against Manulife Financial (Court File CV-13-486703), being the Defendant’s insurer of short term disability and long term disability benefits, for payment of disability benefits.

The action against Manulife was settled in April 2016. [2] Justice Goldstein granted default judgment with respect to the action against Granite Club on April 6, 2016 (the "Default Judgment").

His endorsement states: Granite Club never defended this action and was noted in default.

Ms. Savin moves for default judgment.

In my view she is entitled to liquidated damages of $125,385 (see para. 15 of her affidavit).

There is, however, insufficient evidence to support a claim for unliquidated damages of $100,000 and that part of her motion is denied.

Costs in the amount of $750 are awarded as partial indemnity costs. [3] On April 20, 2016, Justice Dunphy stayed the execution of the Default Judgment by an endorsement, which reads as follows: Plaintiff has signed default judgment allegedly without notice to defendant following lengthy settlement and mediation procedures.

Defendant is moving to set aside and has a motion date scheduled for June 22, 2016 that has been obtained speedily.

The Plaintiff did not appear this am but left a note indicating her opposition but not agreeing to preserve the status quo pending the defendant’s motion.

In my view the defendant is moving diligently and has advanced grounds to set aside default judgment that are not frivolous.

There is a chance of success and the status quo should be preserved.

Accordingly, I am ordering a stay of execution procedures on the judgment until the motion to set aside is heard or further order of the court.

The plaintiff has alleged no prejudice and I can see none.

The plaintiff has acted unreasonably in my view and a costs award in favour of the defendant is appropriate.

Costs of $750 payable forthwith. [4] The Plaintiff brings a motion to lift the stay issued by Justice Dunphy and to amend the Default Judgment to obtain a judgment for unliquidated damages.

The Defendant brings a motion for an Order to set aside the Default Judgment.

For the reasons described below, I have set aside the Default Judgment.

As a result, the Plaintiff’s motions are dismissed as moot. # ANALYSIS [5] Under [Rule 19.08 of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194), judgment against a defendant who has been noted in default may be set aside or varied by the court on such terms as are just.

Whether the interests of justice favour setting aside a default judgment requires the consideration of the following factors: (a) Was the motion brought promptly after the defendant learned of the default judgment? (b) Does the defendant have a plausible excuse or explanation for the default? (c) Does the defendant have an arguable defense on the merits? (d) What is the potential prejudice to the defendant should the motion be dismissed, and the potential prejudice to the plaintiff should the motion be allowed? (e) What would be the effect of any order the court might make on the overall integrity of the administration of justice? [6] The above factors are not rigid rules.

Not all of the above factors have to be satisfied in order to set aside a default judgment.

However, a court must be satisfied that it is just to set aside a default judgment in the circumstances. [1] ## Factor #1: Was the motion brought promptly after the defendant learned of the default judgment? [7] On April 6, 2016, the Plaintiff delivered a copy of the Default Judgment to counsel for the Defendant demanding payment. [8] On April 8, 2016, counsel for the Defendant advised the Plaintiff that the Defendant would bring a motion to set aside the Default Judgment.

She asked that the Plaintiff not proceed with enforcement proceedings. [9] On April 12, 2016, counsel for the Defendant and the Plaintiff exchanged correspondence regarding attending CPC court to schedule the motion for setting aside the Default Judgment. [10] On April 18, 2016, counsel for the Defendant attended CPC Court.

Justice Firestone scheduled the motion to set aside default Judgment for June 22, 2016.

His endorsement states: Motion to set aside default judgment fixed for June 22, 2016 for 1½ hours.

Timetable signed by me to apply.

Plaintiff is self-represented and was notified of today’s attendance and is not present.

Moving party to serve a copy of this order on the Plaintiff. [11] In my view, the Defendant brought this motion promptly after learning of the Default Judgment. ## Factor #2: Does the defendant have a plausible excuse or explanation for the default? [12] Donna D’Andrea had carriage of this action for the Defendant.

She states: It was always my understanding that the parties had an agreement that defence was required while we were attempting to resolve this matter first by way of mediation then through discussion following mediation.

In fact, as of April 6, 2016, the date on which I received notification that the Plaintiff had obtained default judgment against the Granite Club, it remained my understanding that no defence was required.

My understanding was based on various discussions and written communications with counsel on this issue (which were confirmed in writing at Exhibits 28 and 32 to Joanne Hogg’s affidavit sworn on April 28, 2016) as well as the parties’ conduct since I began having discussions with counsel to work toward a resolution. (Affidavit, paragraph 5) [13] A Notice of Intent to Defend was served on March 4, 2014. [14] A Notice of Change of Lawyers was received on March 17, 2014. [15] An Amended Statement of Claim was served on March 21, 2014.

Ms. D’Andrea advised that a motion to strike portions of the Amended Statement of Claim may be necessary. [16] By letter dated April 16, 2014, Ms. D’Andrea advised Plaintiff’s counsel, Ian Hurley, as follows: We are writing further to our telephone discussion in respect of the above noted matter.

Our client intends to Defend the Claim.

However, there are several paragraphs in the Statement of Claim that require amendment prior to the filing of our client’s Statement of Defence.

If the Plaintiff is not willing to amend the Claim, we will have no option but to bring a Motion to have parts of the Claim struck.

It is our intention to review with you the paragraphs of the Claim that we believe require amendment before we schedule a date in Motions Court.

In the interim, on a without prejudice basis, Granite Club is agreeable to attending an early mediation before mediator Michael Silver.

We are prepared to temporarily dealy addressing the portions of the Claim that require amendment.

We also do not intend to file a Statement of Defence prior to Mediation.

We will provide a Mediation Brief to Mr. Silver in advance of the mediation.

This was the agreement we had reached with Mr. Muller at Share Lawyers and trust that you will be agreeable to proceeding in the same manner.

In these circumstances we do not expect that you wisll take any steps to have our client noted in Default. [Emphasis added] [17] There was no reply to the above letter. [18] Mediation did not take place on October 16, 2014 as scheduled as the Plaintiff ended her retainer with counsel a few weeks earlier.

The Plaintiff retained another lawyer in November 2014.

Counsel for the Plaintiff and Ms. D’Andrea spoke on February 2, 2015.

It was Ms. D’Andrea’s understanding that mediation would be scheduled and that she would not be proceeding with a motion to strike the Claim nor would she be required to file a Statement of Defence.

Mediation was scheduled for August 27, 2015.

Although this action did not settle at mediation, the parties agreed to continue settlement discussions. [19] On December 3, 2015, the Plaintiff delivered a Notice of Intention to act in Person. [20] On December 7, 2015, the Plaintiff sent the following email to Ms D’Andrea: I wish to pursue a discontinuance, thus resolving the matters. [21] On December 14, 2015, the Plaintiff sent the following email to Ms. D’Andrea: Would you reply to my email about my self representation and your client’s thoughts about next steps.

I suspect I should receive some release from you on your client’s behalf.

I have not obtain [sp] this to review.

Please send. [22] On December 17, 2015, Ms. D’Andrea sent Minutes of Settlement, Consent to Order Dismissing Action without Costs and a draft Order dismissing action without costs for the Plaintiff’s signature. [23] The Plaintiff responded on February 17, 2016.

She stated: Mediation last year was unsuccessful.

Thus, your inclusion of Minutes of Settlement in your email was irrelevant.

Your terms of dismissal or discontinuance without costs are unreasonable. [24] Prior to sending the above email, the Plaintiff noted the Defendant in default on February 2, 2016, without notice and without subsequently advising the Defendant that this step had been taken. [25] Ms. D’Andrea states that the Plaintiff did not advise her that she would be pursuing her action, would be moving to note the Defendant in default or that she required the Defendant’s Statement of Defence. [26] The Plaintiff states that none of her former counsel agreed to waive the Defendant’s requirement to file a Statement of Defence.

However, the course of conduct since this action was commenced suggests otherwise.

It appears that the parties had responsibly put their resources towards making best efforts to resolve this action rather than towards litigating it. [27] I accept the Defendant’s submission that it had attempted to defend this action in the most cost-effective manner by attempting to reach a settlement prior to incurring the cost of a motion to strike the Statement of Claim and filing a Statement of Defence. ## Factor #3: Does the Respondent have an arguable defence to the application on the merits? [28] The Plaintiff’s Amended Statement of Claim makes the following claims against the Defendant.

Wrongful Dismissal [29] The Plaintiff claims that she became disabled due to major depressive disorder, post-traumatic stress disorder and anxiety during her employment with the Defendant.

The Plaintiff claims that she was dismissed without cause on the day after she advised the Defendant that she was suffering from a psychiatric disability.

The Plaintiff also claims that she was told that her disability benefits would end on that day. [30] The Plaintiff claims that she was terminated without cause.

She seeks compensation in lieu of reasonable notice, any statutory entitlements that are owed under the [Employment Standards Act](https://www.ontario.ca/laws/statute/00e41) as well as any employment/fringe benefits that she would have received during the period of reasonable notice. [31] Joanne Hogg is the Defendant’s Director of Human Resources.

She states that the Plaintiff was paid 4 weeks’ pay to assist while she searched for new employment.

Further, the Defendant continued to pay premiums for disability insurance, life insurance and other insurance until April 2, 2012.

The Defendant paid the premiums for medical and dental benefits until April 24, 2012.

Ms. Hogg states that these payments and benefits exceeded the Plaintiff’s entitlement under her employment agreement.

Human Rights Code claim [32] The Plaintiff seeks damages under the [Human Rights Code](https://www.ontario.ca/laws/statute/90h19) on the basis that the Defendant discriminated against her based on her disability, in that, her termination was motivated by the fact that the Plaintiff had commenced a medical leave and the Defendant had failed to accommodate the Plaintiff’s disability. [33] Ms. Hogg states that the Plaintiff was terminated due to performance issues and unsubstantiated allegations against managers which irreparably damaged the employment relationship.

Ms. Hogg also states that the decision to terminate the Plaintiff was made before she raised any medical issues.

Disability Benefits Claim [34] The Plaintiff claims that the Defendant interfered with her ability to collect disability benefits from Manulife Financial to which she was entitled.

The Plaintiff claims damages for loss of disability benefits from the Defendant in the event that it is determined that she is not entitled to disability benefits. [35] Ms. Hogg states that she fully cooperated with the Plaintiff’s application for short term disability benefits. [36] The Plaintiff’s own evidence is that she has settled her action against Manulife Financial for disability benefits.

Conclusion [37] In my view, the Defendant raises arguable defences to the Plaintiff’s claim. ## Factor #4: Relative Prejudice [38] The Plaintiff states: … I was correctly, legally, justly awarded Default Judgment and costs – this is money I can collect on now.

Not only would I have to again prove my case on merits but also endure the costs to do so, endure further intentional and deliberate massive delay by the defendant, which are not steps taken in the administration of justice. [39] The Defendant submits that it will be prejudiced if the Default Judgment is not set aside because it will become liable for claims that it disputes and may have no obligation to pay. [40] In my view the Plaintiff is the author of her own alleged prejudice.

While the parties chose to try to mediate and settle their differences, the Plaintiff decided to litigate rather than mediate without notifying the Defendant of her change in approach until after she had obtained Default Judgment. ## Factor #5: Administration of Justice [41] While the parties had pursued a course of conduct whereby they had chosen to suspend litigation while attempting to settle their differences, the Plaintiff (while in receipt of settlement documents that she had requested) unilaterally decided to litigate without informing the other party, as noted above.

Such conduct is obviously not in the “interests of justice”. # CONCLUSIONS [42] In my view, the circumstances described above justify that the Default Judgment issued by Justice Goldstein be set aside. [43] The Defendant shall provide its costs submissions by June 29, 2016.

The Defendant shall provide any responding costs submissions by July 6, 2016.

The costs submissions shall be no more than two pages in length exclusive of an outline of costs and any offer(s) to settle that were made in respect of this motion. [44] Further, given the various appearances before this court and given that the Granite Club has filed a Notice of Intent to Defend, I have ordered case management of this action pursuant to [Rule 77.05(2) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) without seeking the consent of the parties.

It is my hope that such oversight will assist the parties in making this process more efficient and effective. --- Mr. Justice M. Faieta Released: June 24, 2016

The Applicant, FIP Munroe Inc., assigned its rights and obligations under an Agreement of Purchase and Sale (APS) to the Respondent, CC Capital Inc. A few days before closing, the Vendor claimed $100,000.00, which the Respondent subsequently withheld from the Assignment price payable to the Applicant.

The application sought a determination on whether the Respondent was entitled to deduct this $100,000.00 allowance.

The court, applying principles of contractual interpretation, found that the allowance was not an "adjustment" as defined in the APS and that the Assignment Agreement did not provide for such an adjustment based on Lease obligations.

The court concluded that withholding the amount would result in a windfall for the Respondent, as the allowance was an advance to be repaid by the Tenant through increased rent.

The application was granted, ruling that the Respondent was not entitled to withhold the $100,000.00.