Court File and Parties

COURT FILE NO.: CV-19-00626825 DATE: 20230607 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ON DECK CAPITAL, INC ., ON DECK CANADA HOLDINGS INC. and ON DECK CAPITAL CANADA, ULC Plaintiff AND: MORLEY BARNABY Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Michael A. Katzman, for the Plaintiff

READ: June 6, 2023

Endorsement

[1] The plaintiff On Deck Capital, Inc. (the “plaintiff”) brings a motion for default judgement in the amount of $95,208.75 against the defendant Morley Barnaby (the “defendant”) in this simplified procedure action.

[2] The essence of the claim is that the plaintiff loaned funds to 1187095 Alberta Ltd. (the “Company”) which loans were secured by a guarantee given by the defendant.

[3] The Company has made an assignment in bankruptcy, which stays the claim against it; the plaintiff seeks recovery of amounts advanced to the Company which remain outstanding and which the defendant guaranteed.

Service Issues

[4] The Statement of Claim was issued on September 15, 2019 and served on the defendant on January 13, 2020.

[5] The defendant did not defend and was noted in default on March 11, 2020.

[6] The plaintiff served the defendant in accordance with Centa J.’s endorsement dated March 13, 2023.

Consequences of noting in default

[7] Pursuant to r. 19.02, having not defended the proceeding, the defendant is deemed to admit the truth of all allegations of fact made in the Statement of Claim.

[8] However, pursuant to r. 19.06 a plaintiff is not entitled to judgment on a motion for judgment or at a trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

[9] As well, the plaintiff must still prove its damages.

The test on a motion for default judgment

[10] The test on a motion for default judgement was set out in Elekta Ltd. v. Rodkin, 2012 CarswellOnt 2928 (ONSC) as follows: A. What deemed admissions of fact flow from the facts pleaded in the Statement of Claim? B. Do those deemed admissions of fact entitle the plaintiffs, as a matter of law to judgement on the claim? C. If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitled it to judgement on the pleaded claim?

The deemed admissions

[11] The Statement of Claim sets out the following facts which are deemed admitted:

• The plaintiff’s predecessor entered into loan agreements with Fix Auto which were guaranteed by the defendant. The rights pursuant to these loan agreements were assigned to the current plaintiff.
• Fix Auto defaulted on the loan agreements on or about October 16, 2018 which has not been cured.
• Despite repeated demands for payment, the defendant has not paid the amount due

Evidence filed

[12] The defendant also filed evidence which also supports the relief claimed and the quantum of the damages sought.

[13] In particular, the plaintiff provided evidence which showed that the total amount outstanding pursuant to the loan agreements as of the date of the issuance of the Statement of Claim was $95,208.75.

[14] I am satisfied that the plaintiff is entitled to an award in the amount of $95,208.75 as claimed together with the contract rate of 24.67 % commencing April 17, 2020.

Costs

[15] The plaintiff has requested costs on a partial indemnity basis in the amount of $2,279.72. together with disbursements in the amount of $1,097.11. I find these costs fair and reasonable and am awarding them.

[16] Order to go in the form signed by me.

[17] Post judgment interest at the Courts of Justice Act rate shall apply.

Justice Papageorgiou Date: June 7, 2023