Court File and Parties

Court File No.: 27231/16 Date: 2016-10-14 Ontario Superior Court of Justice

Between: KARL SPEERS Plaintiff – and – SOLAR LOGIX INC. Defendant

Counsel: M. Shoemaker, for the Plaintiff No one appearing, for the Defendant

Heard: October 13, 2016

RASAIAH J.

Reasons for Order on Default Judgment

[1] Mr. M. Shoemaker appeared before me today on behalf of the Plaintiff.

[2] The Defendant was paged. The Defendant did not respond to the page.

[3] The defendant failed to deliver a statement of defence and was noted in default by the registrar.

[4] The claim was not exclusively for a debt or liquidated demanded money and was not therefore an appropriate case for the registrar to sign judgment under Rule 19.04 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194.

[5] The plaintiff therefore brought a motion seeking default judgment against the defendant pursuant to Rule 19.05 of the Rules of Civil Procedure.

[6] I have reviewed the motion record seeking default judgment.

[7] The basis of the claim is breach of contract. The facts are set out in the affidavit of Steven Shoemaker, sworn September 15, 2016 and I will not repeat them here.

[8] The Plaintiff is seeking damages that amount essentially to return of the deposit he made on account of the contract in question that never came to fruition as a result of the Defendant’s failure to perform the terms of the parties’ contract within the time frame of the Independent Electricity System Operator contract.

[9] The plaintiff also seeks pre-judgment and post-judgment interest and costs.

[10] Rule 19.02(1) of the Rules of Civil Procedure sets out the consequences of noting default. The defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim.

[11] Rule 19.05(3) of the Rules of Civil Procedure provides that on a motion for judgment, the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented.

[12] Rule 19.06 of the Rules of Civil Procedure provides that a plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

[13] The Court must determine if the evidence entitles judgment: Nikore v. Jarmain Investment Management Inc. (2009), 2009 ONSC 46655, 97 O.R. (3d) 132, 180 A.C.W.S. (3d) 603 (S.C.J.).

[14] In Elekta Ltd. v. Rodkin, [2012] CarswellOnt 3928 (ONSC) Brown J. stated, at para. 14:

Accordingly, on a motion for default judgment the inquiry undertaken by the court is the following:

(i) What deemed admissions of fact flow from the facts pleaded in the Statement of Claim?

(ii) Do those deemed admissions of fact entitle the plaintiffs, as a matter of law, to judgment on the claim?

(iii) If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitles it to judgment on the pleaded claim?

[15] McLachlin C.J.C. wrote in Jedfro Investments (U.S.A.) Ltd. v. Jacyk Estate, 2007 SCC 55, [2007] 3 S.C.R. 679 (S.C.C.) at para 14:

The ways in which a contract can be discharged are well established. It may be discharged by performance, by agreement, by frustration, and by repudiatory or fundamental breach. In addition to these major categories, it is possible to end a contract by merger, alteration or cancellation of a written instrument, and in particular circumstances not relevant here, such as by the death of a party (in the case of a personal contract), bankruptcy and winding up. (See Chitty on Contracts (29th ed. 2004), ch. 21-25.)

[16] I am satisfied based on the materials filed and the submissions made today that judgment should be granted based on the deemed admissions that flow from the facts pleaded in the Statement of claim, the law on breach of contract, and the adduced admissible evidence set out in the affidavit of Steven G. Shoemaker filed.

[17] Deemed admissions flow entitling the Plaintiff to judgment, namely the parties had a contract; consideration was provided and accepted; no work was completed on the contract at all and further by the date by which the Independent Electricity System Operator required an Electrical Safety Authority connection. Time expired. The Defendants did failed to meet the terms of the contract or rectify the breach. On these facts the contract has been breached. The amount of damages requested, as stated above, reflects the deposit provided by the Plaintiff. It is appropriate in this case, having received no benefit from the contract and the non-performance, that the Plaintiff receive the damages claimed. The Plaintiff seeks no other damages.

[18] The Plaintiff submitted a bill of costs, inclusive of fees, taxes and disbursements, in the amount of $2,282.89. The time spent and rates charged are not unreasonable. The legal issues were very straightforward in this case. The amount claimed in my view is an amount the defendant could reasonably expect to pay in relation to the steps taken in this proceeding. The defendant chose not to defend the claim, and accordingly given the damages issue, the motion was required to obtain judgment.

[19] The Plaintiff claims pre-judgment and post-judgment interest in accordance with the Courts of Justice Act R.S.O. 1990, c. C.43, as amended. The materials do not explain why he is claiming pre-judgment interest from June 23, 2015, which is the date set out in the draft order filed. The materials do not establish this date as the date the cause of action arose, namely the date of the breach. The deposit he provided was given to the Defendant September 18, 2015. The breakdown it appeared started to occur on or around October 21, 2015, when the Defendant stated that work has begun or would be imminent but nothing was ever started and thereafter the Defendant failed to respond. That being said, I am of the view in this case that the Plaintiff was deprived of his money from the date he paid the deposit and that interest should run from that date in these circumstances.

[20] Based on the above, I order that:

1. The Defendant shall pay to the Plaintiff, damages in the sum of $29,988.39 together with pre-judgment interest thereon in accordance with the Courts of Justice Act R.S.O. 1990, c. C.43, as amended for the period commencing September 18, 2015 to the date of this Order at the rate of 1 percent per year and post-judgment interest thereafter from the date of this Order in accordance with the Courts of Justice Act R.S.O. 1990, c. C.43, as amended at the rate of 2 percent per year.
2. The Defendant shall pay costs to the Plaintiff inclusive of taxes, fees and disbursements, in the amount of $2,282.89.

Rasaiah J. Released: October 14, 2016