Court File and Parties
CITATION: ADT Security Services Canada, Inc. v. Fluent Home Ltd., 2023 ONSC 4360
DIVISIONAL COURT FILE NO.: CV-17-00576133-0000
DATE: 20230726
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ADT SECURITY SERVICES CANADA, INC. and ADT CANADA INC., Plaintiffs
AND: FLUENT HOME LTD. and GRAHAM WOOD, Defendants
BEFORE: D.L. Corbett J.
COUNSEL: John K. Downing and Brian Whitwham, for the Plaintiffs
Natalia Vandervoort, for the Defendants
HEARD: at Toronto by ZOOM, July 26, 2023
ENDORSEMENT
D.L. Corbett J.
[1] The plaintiffs move for judgment on an alleged settlement of this action, alleged to have been agreed in judicial mediation during a pre-trial conference before M.A. Sanderson J. on April 14, 2023. The motion came on before me, as the case management judge, after the parties appeared before Sanderson J. on June 2, 2023, and Her Honour concluded that she would not hear an opposed motion for judgment.
[2] Counsel for the plaintiffs wrote to me on July 6, 2023, seeking an appointment for this motion, and attaching the Notice of Motion. I directed the parties to agree upon a schedule for exchange of motion materials by July 11th. I was advised by counsel on July 11th that the plaintiffs’ motion materials were served on July 6th, and that the defendants did not intend to serve responding materials. I then provided the parties with potential hearing dates, and the parties agreed that the motion would be heard on July 26th. I confirmed this hearing date with the parties on July 17th.
[3] At the return of the motion, counsel for the defendants advised that she is instructed by the defendants that (a) they intend to oppose the motion for judgment; (b) counsel for the defendants will be seeking to get off the record (and may be necessary witnesses on the motion for judgment, having been present during the pre-trial conferences); (c) the defendants were currently seeking to retain new counsel for the motion; and (d) on the basis of the foregoing, the defendants were requesting an adjournment of the motion for judgment.
[4] On the motion materials before me, settlement was reached before Sanderson J., it was only on this basis that Her Honour vacated imminent trial dates (in May 2023), and the fact of settlement was confirmed again during the conference before Her Honour on June 2, 2023. The terms of settlement appear to be unambiguous – payment of a certain amount by the defendant Fluent to ADT ($1,650,000). In correspondence between counsel after the settlement there were negotiations of details, such as the precise date(s) by which payment would be made, and the precise terms of a release, but there does not appear to have been disagreement about the core terms of the settlement.
[5] The defendants have been aware of this motion since July 6, 2023, at the latest. They participated in setting the schedule for this motion. On July 10th they advised that they would not be delivering motion materials. They gave the court no advance notice that they would seek to adjourn the motion, and the court understands that the first notice given to plaintiffs’ counsel about the adjournment request was on July 25th. The plaintiffs’ request for judgment has been known to the defendants since at least early June. No evidence was delivered in support of the request for an adjournment. No evidence was delivered identifying a basis for opposing final judgment in accordance with the apparent settlement. No information was provided on when the defendants expect to have new counsel and will be able to argue the motion for judgment.
[6] On the face of the materials before me, the defendants are abusing the court’s process to delay the day they will face a payment order to which they agreed before Sanderson J. But I will give them the benefit of the doubt, notwithstanding the foregoing. I will give them a chance to retain counsel and deliver materials setting out some arguable basis for opposing the motion for judgment. However, I will not give them this opportunity as a means to further delay payment without any basis in the record for further delay before this court.
[7] For these reasons, order to go as follows:
(a) on an interim basis, the defendant Fluent Home Ltd. shall immediately pay ADT the amount of $1,650,000.00, by payment to “Miller Thomson LLP in trust”;
(b) any payments pursuant to para. (a), above, shall be held in trust pending further order of this court;
(c) the defendants shall serve, file and upload to CaseLines any materials upon which they rely to oppose final judgment in this case by August 9, 2023;
(d) the plaintiffs may serve, file and upload to CaseLines any reply materials by August 16, 2023;
(e) this motion for judgment shall be returned before D.L. Corbett J. on August 23, 2023, at 10:00 am, by ZOOM.
(f) the defendant Fluent shall immediately pay costs of this motion, to date, in the amount of $10,000.00, inclusive. These costs must be paid in full prior to the return of this motion, failing which the motion may be adjourned until payment of these costs has been made in full.
[8] On the basis of this interim order, ADT may seek to enforce the order for payment of the agreed settlement amount. To the extent that ADT is successful in enforcement efforts, the funds will be held in trust pending return of the motion for judgment before me. To the extent that the defendants find the interim order burdensome, they have it in their control to expedite proceedings in this court by retaining new counsel and delivering their motion materials. In this way, the defendants will still have a chance to raise their objections to the motion for judgment, but will gain no advantage by further delaying that motion.
[9] I have devised the schedule for return of the motion without benefit of input from the defendants. If they require more time, or wish an abbreviated schedule, I am amenable to consider adjusting the schedule, it being understood that the plaintiffs may pursue enforcement of the interim payment order in the meantime.
[10] I have signed an order reflecting this endorsement, and court staff is asked to expedite its issuance and entry.
Released: July 26, 2023