Armdale Estates Inc. v. Falcon Group International Inc., 2013 ONSC 19661

CITA­TION: Armdale Estates Inc. v. Falcon Group International Inc. et al. ONSC 2218

COURT FILE NO.: CV-11-442507

­DATE: 2013/04/15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Armdale Estates Inc. v. Falcon Group International Inc. and Emmanuel de Guzman

BEFORE: MASTER WIEBE

HEARD: March 27, 2013

COUNSEL: William Murray for the defendant, Falcon Group International Inc. (moving party)

Jeff Van Bakel for the plaintiff (responding party)

ENDORSEMENT

(Motion to set aside default judgment and other related relief)

1. This is a motion by the defendant, Falcon Group International Inc. (“Falcon”), to set aside a noting in default, default judgment, Notice of Garnishment and any Writ of Seizure and Sale that may have been issued pursuant to the said judgment. The plaintiff, Armdale Estates Inc. (“Armdale”), opposes the motion and, in the alternative, submits that, if the court is inclined to set aside the default judgment, Falcon should be obligated first to post the full amount of the judgment with the court to the credit of this action.

2. Falcon filed an affidavit of the president of Falcon, Emmanuel de Guzman (“de Guzman”). Armdale filed an affidavit of Brent Whitby, a partner with Kirkor Architects & Planners (“Kirkor”), the architectural firm on the subject project. Armdale also filed the affidavit of Michelle Dietz, a clerk in the firm of the plaintiff’s counsel. There were not cross-examinations. Both parties filed facta and books of authorities.

I. Factual context:

3. The underlying action is one for repayment to Armdale of $42,000, being the total of 6 invoices that Falcon endered to Armdale between November 24, 2008 and August 27, 2010 and that were paid by Armdale. Armdale alleges that the invoices were a misrepresentation, as no services as described in the invoices were in fact rendered. Falcon alleges that these services were rendered and the invoices properly paid.

4. The following are the key facts I gleaned from the affidavits for the purpose of this motion:

• In February, 2008, Armdale retained Kirkor to provide architectural services to Armdale for the design of a project Armdale was constructing, a 37 storey residential complex in Mississauga, Ontario (“the Project”). It was Kirkor’s responsibility to coordinate the design team, which included the engineers. Mr. Whitby had carriage of the matter for Kirkor.

• In October, 2008, Armdale retained Falcon to provide engineering service in relation to the Project. Falcon’s scope of work included the preparation of detailed mechanical, electrical and fire protection design drawings, schematics and specifications to enable Armdale to complete the design of the project.

• Armdale instructed the engineers on the Project, including Falcon, to accept instructions from Kirkor. This was not disputed in the de Guzman affidavit.

• Mr. Whitby deposed that, because of development issues, the Project was halted in November, 2008, and that he gave instructions to the engineers to halt work at that time. He stated that this included Falcon and that the halt order was given by him to a Ms. Mary Baird, the Falcon office manager. Receipt of the halt order at this time is disputed by Falcon. Mr. de Guzman deposed that the information about the Project being “on hold” was given to him, Mr. de Guzman, no sooner than 27 months later, in March, 2011, and that this information came from the president of Armdale, Frank Dodaro. Yet, Falcon produced no evidence refuting the Whitby evidence that the halt order had been given to Ms. Baird in November, 2008. I therefore find that the halt order had been given to Falcon through Ms. Baird in November, 2008.

• Mr. Whitby further deposed that he discussed this matter every two weeks thereafter with Ms. Baird, and that he consistently advised Ms. Baird that the work was halted until site plan approval issues were resolved. There is no evidence from Falcon disputing this. I therefore draw the inference that Falcon (through Ms. Baird) received these instructions from Mr. Whitby.

• Falcon issued invoices dated November 24, 2008, October 13, 2009, November 13, 2009, January 19, 2010, April 7, 2010 and August 27, 2010. Interestingly, the de Guzman affidavit does not contain these invoices; they were produced by the plaintiff through Mr. Whitby’s affidavit. All of these invoices are stated to be for “mechanical/electrical engineering consulting services.” There is on each invoice a further paragraph concerning “calculations” followed by the work the calculations apparently pertained to. The amount billed on each invoice was for a base amount containing “000” at the end. The first invoice dated November 24, 2008 has a further paragraph as follows: “10% Retainer fee as per terms and agreement.” Interestingly, neither party produced a copy of the governing contract.

• Mr. de Guzman deposed that the Falcon invoices reflected that work of preparing preliminary schematics and specifications, and that Falcon expected to revise the details of this work once it received the final layout and drawings for the Project. He deposed further that this was done because Armdale had “fast tracked” the Project, and that this preliminary work would allow Armdale to resume the Project quickly. Mr. Whitby’s affidavit in response states that this alleged work was “hypothetical at best.” He states that without more advanced information from others, Falcon could not have done any of the work alleged in the invoices, and, with the halt order, Falcon should neither have done any work nor rendered any invoices. In argument, Mr. Van Bakel pointed out that Falcon failed at the motion to produce any corroboration of its alleged work, such as draft schematics and specifications, and that this was a telling omission in light of the questionable nature of the invoices, a point with which I agree.

• Yet, it is undisputed that Armdale paid the Falcon invoices, and at the motion Armdale provided no evidence explaining why it did so during the halt order. Furthermore, it is also undisputed that at a meeting in March, 2011, Mr. de Guzman produced to Armdale what he claimed were the Flacon preliminary drawings and specifications which gave rise to the invoices. I therefore do not have sufficient evidence to determine whether or not the claimed Falcon work was done or whether the invoices were proper and payable under the governing contract or at all.

• Mr. Whitby deposed that in March, 2011 an anonymous source advised him and Mr. Dodaro that Falcon had rendered “false invoices.” A meeting between Messrs. Whitby, Dodaro and de Guzman was quickly convened. The parties are in agreement that the meeting took place and that Mr. de Guzman brought the drawings and specifications he claimed Falcon had worked on to the meeting. Mr. de Guzman states that he showed these documents to Messrs. Whitby and Dodaro. Mr. Whitby stated in his affidavit that Mr. de Guzman refused to allow any meaningful examination of same. It appears therefore that Mr. de Guzman brought drawings and specifications to this meeting.

• Mr. de Guzman stated in his affidavit that, because the Project was on hold, he offered in this March, 2011 meeting a “temporary refund” of $20,000 to be rebilled once the Project was underway, an offer he stated Armdale did not accept. Mr. Whitby stated, on the other hand, that there was in fact an agreement whereby Falcon would refund the $20,000 to be rebilled later when the project was underway, and that Falcon did not provide the refund. Appended to Mr. Whitby’s affidavit is an email from Falcon to Kirkor dated March 23, 2011 confirming Mr. Whitby’s version of what transpired. I note in particular the statement in the Falcon email that the $20,000 was “not yet considered earned.” Therefore, I find Mr. Whitby’s be the more credible version of what happened at this meeting.

• It is undisputed that, by letter dated December 15, 2011, Armdale terminated the Falcon contract due to the alleged improper invoices, and gave notice that it intended to sue Falcon for the recovery of the money paid.

• Armbale had its Statement of Claim in this matter issued on December 21, 2011. Named as defendants are both Falcon and Mr. de Guzman. Ms. Dietz’s affidavit indicates that the Statement of Claim was served on Falcon in the afternoon of January 12, 2012 by way of a process server leaving a copy of same with one, Nicholle Cullen, at Falcon’s head office. Ms. Cullen admitted to the process server that she was an “Office Manager” at Falcon. In his affidavit, Mr. de Guzman did not deny that Ms. Cullen received the Statement of Claim at that time. Therefore, it is undisputed that Falcon was served with the Statement of Claim on January 12, 2012.

• Mr. de Guzman in his affidavit tried to explain the company’s failure to act. He asserted that Ms. Cullen did not pass the Statement of Claim to him or inform him of it. There is no corroboration of this rather puzzling assertion – no affidavit from Ms. Cullen, no explanation of Ms. Cullen’s level of experience or relationship with Mr. de Guzman, who after all is the president of Falcon, and no explanation of the company policy concerning the receipt of court documents such as this.

• The credibility of this statement is further degraded when considered in the context of the other events brought out in Ms. Dietz’s affidavit. In the evening of the day of the service on Falcon, January 12, 2012, the process server attempted service of the Statement of Claim on Mr. de Guzman personally at his last known place of residence. There was no answer. At 2:30 p.m. the next day, January 13, 2012, the process attended at the Falcon head office to serve Mr. de Guzman, and Ms. Cullen advised that he had “left for the day.” The process server attended at the same office on January 16, 2012 and was given the same message by Ms. Cullen. A third attempt was made at the same office on January 17, 2012 and this time Ms. Cullen stated that “she was advised to tell the process server that Mr. de Guzman was not available and that the process server should leave the premises.” This indicates that Mr. de Guzman was indeed aware of the existence of the Statement of Claim and its contents at this time, particularly as this was happening just a month after Armdale had sent the letter threatening a lawsuit to recover the monies paid on the invoices. I find Mr. de Guzman’s assertion that he was not informed of the Statement of Claim by Ms. Cullen as lacking any credibility. Falcon chose not to act in response to the Statement of Claim.

• It is undisputed that on February 2, 2012 Armdale obtained Default Judgment against Falcon in the amount of $42,064.32 plus $1,150 for costs, and that on March 12, 2012 Armdale obtained a Notice of Garnishment in relation to the Default Judgment and served it on Falcon’s bank, the Toronto-Dominion Bank.

• According to Ms. Dietz’s affidavit, the Notice of Garnishment and supporting affidavit were delivered by mail to Falcon on March 13, 2012. Mr. de Guzman states in his affidavit that the first time he became aware of the judgment against Falcon was when he reviewed this mail on March 19, 2012. These are undisputed facts.

• In his affidavit, Mr. de Guzman admitted that he essentially did nothing about the judgment against Falcon for 1 ½ months. He gave the following as reasons for this lapse: he did not think that there was any action Falcon could take to set aside the judgment; and he was distracted from doing anything by the work of looking for new premises for Falcon and then eventually moving Falcon to new premises, which he stated took about a week after April 19, 2012. Again, I find that this explanation lacks credibility. Firstly, to understand Falcon’s rights, all Mr. de Guzman had to do was to hire a lawyer, something he had no trouble doing later when he was personally served with the Statement of Claim and when other Falcon relation litigation was at issue. Secondly, as to the move, this surely would not have occupied so much time as to make a timely visit to a lawyer impossible, if in fact Mr. de Guzman was concerned about overturning the judgment. This all indicates, and I find, that Mr. de Guzman simply chose to delay.

• In his affidavit, Mr. de Guzman stated “in or about the last week of April, 2012” he began his search for a lawyer concerning other Falcon related litigation. He stated that the first firm he approached, Mills and Mills, which was not a law firm. That firm, he stated, referred him to several lawyers. These referrals, according to Mr. de Guzman, were either too busy or too expensive. It took Mr. de Guzman until May 23, 2012, a month after he began his search, to find and “retain” a lawyer, Andrew Faith of the firm of Polley Faith. With the exception of the “retainer,” these facts are largely undisputed and I accept them.

• As to this “retainer,” Mr. de Guzman alleged that there was one with Andrew Faith. Mr. de Guzman alleged that he gave Mr. Faith a copy of the garnishment documents along with the documents in the other lawsuit. Mr. de Guzman alleged that Mr. Faith gave him assurances that Mr. Faith would assign the file to another lawyer in the firm, Angus Rennie, and that Mr. Rennie would move to set the judgment aside. However, Mr. de Guzman then stated that almost 7 weeks later, on July 10, 2012, when Mr. Rennie called him about Mr. de Guzman’s personal defence to the action (as he had been finally personally served with the Statement of Claim on June 27, 2012), Mr. Rennie advised that the Polly Faith firm had not been retained to defend the action and that Polly Faith required a retainer fee, a fee that Mr. de Guzman found to be too expensive. Mr. de Guzman stated that he thought that the default judgment had been set aside by this time. Because of the expense of the demanded retainer, Mr. de Guzman stated that he went looking for another lawyer.

• The retainer and even the belief of a retainer of Mr. Faith are assertions that lack credibility. There is no corroboration of the alleged retainer – no retainer agreement, no retainer advance, no correspondence evidencing a retainer or any other aspect of these alleged facts, and no affidavit from anyone at Polly Faith as to these alleged facts. These are serious allegations of inaction against a law firm that are entirely uncorroborated and self-serving. In argument, Mr. Murray confirmed that Falcon had lodged no official complaint about the Polly Faith firm. There is not enough evidence for me to find that there was a retainer, or even a belief of a retainer, of Mr. Faith. Therefore, I also find it difficult to believe that Mr. de Guzman also believed that the default judgment had been set aside. It appears more likely, and I find, that Mr. de Guzman was again simply delaying.

• According to Mr. de Guzman’s affidavit, on or about July 10, 2012 someone at Falcon named Victoria de Brun called Falcon’s present lawyer, William Murray, to act in this matter for both Falcon and Mr. de Guzman personally. There is then a statement that Mr. Murray was too busy and did not get retained until July 16, 2012. There is then a statement that, because he was advised by Mr. de Guzman that the default judgment had been set aside, Mr. Murray prepared a Statement of Defence for both Falcon and Mr. de Guzman on July 17, 2012. Mr. de Guzman stated that Mr. Murray called a lawyer at the firm representing the defendant, Damon Stoddard, before the defence was served and learned for the first time that the default judgment against Falcon had not been set aside. Mr. Murray then proceeded to act for Mr. de Guzman only and delivered a Statement of Defence for him on July 27, 2012. The only corroboration of any of this was the filed de Guzman Statement of Defence which is indeed dated July 27, 2012.

• There was then a further delay before the within motion was brought. According to Mr. de Guzman, Mr. Murray was concerned that Falcon and Mr. de Guzman get separate representation (as their interests were not necessarily aligned) and on July 20, 2012 advised Mr. de Guzman to get separate counsel for Falcon. According to Mr. de Guzman, it took him, Mr. de Guzman, over 3 weeks, namely until August 11, 2012, to decide not to do so, retain Mr. Murray for Falcon as well as for himself, and meet Mr. Murray to begin preparing this motion. These are undisputed facts.

• This motion was initially brought on August 16, 2012 with an initial return date of November 27, 2012. The motion material contains a draft Statement of Defence for Falcon. The motion record was served on August 27, 2012. It was subsequently adjourned to March 4, 2013. The Responding Motion Record was served in February, 2012. The motion was adjourned again to March 27, 2013.

• Ms. Dietz’s affidavit indicates that an Execution Search conducted In Toronto on January 31, 2013 indicated that two Writs of Seizure and Sale, other than the one obtained by the plaintiff, had been filed as against Falcon: one in the amount of $75,020.17 with a start date of February 2, 2012; and the other in the amount of $9,413.98 with a start date of June 7, 2012. Falcon filed no evidence explaining the genesis of these two other writs, why they had not been satisfied and whether they would be satisfied in the future. I draw the inference that Falcon does not intend to satisfy them.

5. As a general statement, as can be seen from these comments, I found Mr. de Guzman’s affidavit generally to lack necessary corroboration and believability.

II. Test for setting a default judgment aside:

6. The Court of Appeal set out the test for setting aside a default judgment in the case of HSBC Securities (Canada) Inc. v. Firestar Capital Management Corp. 2008 ONCA 894 at paragraph 21. G. Epstein, J. stated that the court must determine three things:

a) Whether the motion was brought without delay after the defendant learned of the default judgment;

b) Whether the circumstances giving rise to the default were adequately explained, and

c) Whether the defendant has an arguable defence on the merits.

7. The Court made several other significant points. The motions court can consider and reject the evidence offered to explain the default and any delay in bringing the motion to set aside the default judgment. The Court also held that “inattention and inaction” were not adequate explanations for the default and the delay in bringing the motions, and that the motions court was entitled to assess the credibility of the evidence in this regard. Finally, concerning the issue of merits, the Court held that the motions court was entitled to “take a good hard look at the merits” in order to determine whether the moving party had an arguable defence.

8. In Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007), 2007 ONCA 333, 87 O.R. (3d) 479 at para. 2, the Court of Appeal held that the motions court should also weigh the potential prejudice to the moving party in having the motion dismissed against the prejudice to the responding party in allowing the motion, all with a view to maintaining the overall integrity of the administration of justice.

9. I now apply these principles to the facts on this motion.

III. Circumstances giving rise to the default:

10. Falcon tried to explain the default by blaming an Office Manager, Nicholle Cullen, for not forwarding the Statement of Claim she received on January 12, 2012 along to the president, Mr. de Guzman. Firstly, as stated above, there is no credibility to this assertion. Mr. de Guzman had been served with a letter from the plaintiff a month earlier, which letter stated that the within lawsuit would be commenced. Therefore, he knew a Statement of Claim would be served soon on the company in relation to the impugned invoices. In addition, there was no evidence from or about Ms. Cullen and the company that would give any credibility to her alleged failure to bring the Statement of Claim to the attention of the company president. Then there was the clear evidence that Mr. de Guzman evaded service of the Statement of Claim when the process servers attempted to serve him personally with the Statement of Claim at his residence and office addresses at this same time. At the office, the process server attempted get Ms. Cullen to set up a meeting between the process server and Mr. de Guzman, and she eventually replied that “she was advised” that Mr. de Guzman was not available and that the process server should leave. This all strongly indicates that the Statement of Claim was brought to Mr. de Guzman’s attention directly or indirectly, that he knew of its contents, and that he simply wanted to avoid it.

11. Secondly, even if Ms. Cullen did not bring the Statement of Claim to Mr. de Guzman’s attention, this is not an adequate explanation for the default. By Ms. Cullen taking delivery of the Statement of Claim, service of the Statement of Claim on Falcon was complete under the Rules of Civil Procedure. This is something that any company operating in this province must know. If the company did not have adequate rules and procedures in place to insure a timely response to such an important court document, that is the responsibility of the company, not the plaintiff.

12. A deliberate choice by the defendant not to defend can, in itself, be grounds for the denial of the motion to set aside the judgment; see Martinez de Morales v. Lafontaine-Rish Medical Group Ltd. 2009 ONCA 87 (Ont.C.A.) at para. 1, and CN Railway v. Gateway Reload Inc. 2006 CarswellOnt 6976 (Master), at para. 15.

IV. Delay in bringing the motion:

13. As stated above, Falcon essentially delayed 5 months after Mr. de Guzman said he learned of the default judgment on March 19, 2012 to retain a lawyer and commence this motion. This is simply too long, and does not meet the requirements of this part of the test.

14. Mr. de Guzman had a series of explanations for the delay: in the first 1 ½ months he stated that he was too distracted by the Falcon move and also did not know that Falcon could do anything about the judgment; the next 1 month he said he spent looking for a lawyer for other litigation and not finding one because they were not available or too expensive; the next 1 ½ months he said he spent retaining lawyer Andrew Faith to, in part, move to set the judgment aside and expecting that that was being done before Polly Faith surprised him by denying the retainer; and the last 1 month he said he spent retaining Mr. Murray the bulk of which time was spent he said following Mr. Murray’s advice and considering hiring another lawyer to represent Falcon’s separate interest, which advice Mr. de Guzman ended up rejecting. As stated above, I have found the explanations for the first period of delay and the third period of delay as not being credible; Falcon was simply delaying during this time. As to the explanations for the second period of delay and the fourth period of delay, while credible, are not acceptable. Mr. de Guzman should have been looking for a lawyer to set aside the judgment with all deliberate speed and neither of these two periods of delay show that that was done. In general, it appears that Mr. de Guzman took no serious steps to set aside the judgment until after he was personally served with the Statement of Claim, and even then the steps were slow.

15. Where the explanations for the delay in bringing the motion are unacceptable, a delay of 5 months is unacceptable. In Canadian Imperial Bank of Commerce v. Petten 2010 ONSC 6725 (Ont.S.C.) a delay of 4.5 months was found to be unacceptable. In CN Railway v. Gateway Reload Inc. 2006 CarswellOnt 6976 (Master), Master Abrams found a 5 month delay to be unacceptable. A more acceptable period would have been one month; see Hanratty v. Woods 2009 CarswellOnt 4879 (Ont.Sup.Crt.) at para. 4.

V. Merits of the case:

16. The question of whether Falcon has an arguable defence is more difficult. On the one hand, there is evidence that casts doubt on the validity of the 6 impugned invoices:

• These invoices were produced after Falcon had received a halt work order from the lead architect, Kirkor.

• The invoices are questionable in nature. They are general in their description of the alleged work and the amounts billed are all in rounded numbers.

• Mr. Whitby gave evidence that Falcon could not have done the work described, as this would have required more advanced information from others, which did not exist.

• Falcon produced in its motion record none of the alleged drawings and specifications it maintains justified the impugned invoices.

• Mr. de Guzman’s refused to allow the drawings and specifications to be examined in detail at the March, 2011 meeting.

• Falcon’s acknowledged in its March 23, 2011 email that $20,000 worth of the invoices, almost half of the total, “was not yet considered earned.”

• Falcon did not produce a copy of the governing contract. Mr. Murray argued strenuously that at least the first invoice, allegedly for the 10% retainer fee, was proper and payable. I have no way of determining this without seeing the contract.

17. On the one hand, there is circumstantial evidence in support of some defence:

• Mr. de Guzman produced drawings and specifications at the March, 2011 meeting which he stated was the work that justified the 6 impugned invoices.

• The most telling evidence is that Armdale paid the invoices in full during the halt work order. There was no explanation from Armdale for this conduct. Mr. Van Bakel argued that this was a mistake on the part of either Armdale or Kirkor, or both; but there is no evidence of that. For all I know, Armdale may have ignored the halt work order and separately instructed Falcon to continue working on the preliminary drawings and specifications in order to make sure that the re-start of the Project went quickly. An affidavit from Mr. Dodaro could have addressed this issue, but there was no such affidavit.

• Even Mr. Whitby stated that the Falcon work was “hypothetical at best.”

18. While the standard is that of an “arguable defence,” the motions judge is obligated to take a good hard look at the merits. Furthermore, the onus rests with the moving party to establish whether an arguable defence exists; see M.J.Dixon Construction Ltd. v. Hakim Optical Laboratory Ltd. 2009 CarswellOnt 1671 (Master) at para.49. In addition, as Master Abrams commented in the CN Railway case at paragraph 28, the evidence adduced must satisfy the motions court “with that clearness which is necessary where [a motion] is brought after so great a delay.”

19. In the circumstances, I find that the plaintiff has shown that it has a weak potential defence on the merits, particularly given the unexplained payment of the invoices by Armdale. But, as pointed out by Justice Corbet in the Canadian Imperial Bank of Commerce case at paragraph 24, a weak defence is itself insufficient to allow the motion where the other aspects of the test have not been met.

VI. Prejudice:

20. This last aspect of the test requires that I balance the potential prejudice to the defendant should I not grant the motion against the potential prejudice to the plaintiff should I grant it, all with a view to maintaining the overall integrity of the administration of justice. A factor to consider in this regard as justifying a denial of the motion is whether other creditors are takings enforcement steps against the defendant, which would in that event raise the prospect that the plaintiff may not have assets to collect upon if forced to litigate its claim. That is certainly the case here, where the Dietz affidavit indicates that two other creditors of Falcon have obtained judgments against Falcon that total almost $85,000 and that have not been satisfied for over 13 months.

21. Against this evidence, I balance the prejudice to the defendant in having its opportunity to prove its albeit weak defence denied. Master Dash in 1317621 Ontario Inc. v. Krauss 2008 CarswellOnt 4621 (Master) at paragraph 30 held that Rule 19.08(1) allowed the court to impose “such terms as are just” in setting aside a default judgment, terms such as maintaining in place writs of seizure and sale. I think that I will exercise my discretion in this case accordingly, but with stricter terms.

22. Mr. Murray made an argument that the default judgment against Falcon (and the deemed admissions of Falcon triggered thereby) would risk inconsistent judgments, as the action against Mr. de Guzman remained. Yet, as Mr. Van Bakel pointed out, the allegations against Mr. de Guzman are somewhat different from the allegations against Falcon. Mr. de Guzman is alleged to have personally guaranteed the repayment of the invoices. Furthermore, if the deemed admissions by Falcon compromise Mr. de Guzman’s defence, this is a risk that Falcon appears to have wilfully run.

VII.Ruling:

As a result, I make the following ruling:

a) Falcon will have 30 days from the date of this ruling to pay the full amount of the judgment, namely $43,214.32, plus $10,000 as security for the plaintiff’s costs, in cash by way of certified cheque into court to the credit of this action.

b) Should Falcon do so, it will be at liberty to obtain an order on short notice of no less than 2 business days, setting the default judgment aside and setting aside all writs of seizure and sale, garnishments and other enforcement processes obtained to that point.

c) The plaintiff will be entitled to all costs thrown away in that event, to be paid in 15 days from the date of the payment into court.

d) Should Falcon fail to do so, this motion will be deemed dismissed.

e) In the meantime and until the said security has been posted, the plaintiff is at liberty to pursue all of its rights to enforce the default judgment without restriction. In the event Falcon posts the security as ordered herein, any recovery obtained as a result of enforcement on the default judgment up to $10,000 will be held as further security for costs herein to be dealt with by the trial judge.

If any party seeks costs of this motion and if costs cannot be agreed upon, any party seeking costs shall serve and file a brief written submission of 3 pages or less in length on or before April 29, 2013. Any responding submissions shall also be 3 pages or less, and must be served and filed on or before May 13, 2013. Any reply submissions shall be 1 page or less, and must be served on or before May 20, 2013. The submissions must be filed with the Cost Outlines that have been exchanged. The material shall be filed directly with my Assistant Trial Coordinator, Al Noronha, at the 6th Floor, 393 University Avenue, Toronto, and shall be accompanied with an affidavit of service.

MASTER C. WIEBE