SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Elekta Ltd., Plaintiff

AND:

Timothy Rodkin, Kathleen Thornton, Julie Waldriff a.k.a. Julie Smith a.k.a. Julie Josh Kennedy, Just A Kid Productions, Inc., Law Enforcement Canada Media Group, Robert Rodkin a.k.a. Bob Rodkin, Gail Smith, Cindy Doucette, John Doe and Jane Doe, Defendants

BEFORE: D. M. Brown J.

COUNSEL: I. Nishisato, for the Plaintiff

No one appearing for the Defendant, Timothy Rodkin

HEARD: February 29, March 13 and March 23, 2012; correspondence from counsel dated April 2, 2012.

supplementary REASONS FOR DECISION (motion for default judgment)

[ 1 ] Following the release of my Reasons dated April 2, 2012 ( 2012 ONSC 2062 ), I received a letter from Elekta’s counsel enclosing a form of judgment for issuance. Elekta’s counsel requested that I include in the judgment two provisions not dealt with in my Reasons.

[ 2 ] First, Elekta requested that the judgment include a provision stating that it arose out of fraud and was not released by a discharge from bankruptcy pursuant to section 178 of the Bankruptcy and Insolvency Act . While such relief was requested by Elekta in paragraph 2 of its Notice of Motion for default judgment, it was not requested in its Amended Statement of Claim dated January 30, 2012. Default judgment cannot be granted for relief not sought in the originating process. Moreover, in my view in an action for fraud it is not proper to seek an order declaring that the judgment is not released by a discharge from bankruptcy. Such a declaration is more properly made in proceedings under section 178 of the BIA . Paragraph 22 of my Reasons were clear on their face as to the basis for granting partial default judgment in the amount of $12,459,784, and those Reasons will inform any consideration of the application of BIA s. 178.

[ 3 ] Second, Elekta seeks to include an order that it is not required to pay Rodkin the separation payment provided for in the termination agreement dated September 7, 2011. Such relief was included in paragraph 1(j) of its prayer for relief in its Amended Statement of Claim. However, such relief was not requested in its notice of motion for default judgment. Since it was not requested on the motion, I cannot grant it, at least on this record.

[ 4 ] I have amended the submitted order accordingly, and I have signed it.

D. M. Brown J.

Date : April 17, 2012