SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-12-5825-00
DATE: 2013/04/08
RE: CIBC Mortgages Inc. and Shamshad Balroop and Satt Balroop
BEFORE: The Honourable Justice Kofi Barnes
COUNSEL:
R. Aisenberg, for the Plaintiff
S. Balroop, S. Balroop for the Defendants, in person
E N D O R S E M E N T
[1] The Defendant seeks an order to set aside a default judgement and order to deliver to the Plaintiffs possession of land with a municipal address of 2 Wilby Crescent, Toronto, Ontario, M9N 1E5.
[2] Upon reading the affidavits of Laura White for the Plaintiff, the affidavit of Shakeel Balroop, hearing the submissions of the Plaintiff’s counsel and that of the unrepresented Applicants and after appling the applicable test set out in Bayview Financial, L.P. v. Spartan Collision Corporation, 2007 14301 (ON SC) and Lenski’s v. Roncailoi (1992) II.C.P.C. (30) 99 (Ont.C.J.Gen.Div.), I conclude that the Applicants’ motion to set aside the default judgement should be dismissed.
[3] The main chronology in this case is as follows:
(i) The Plaintiffs filed and served a statement of claim on January 17, 2013.
(ii) The Plaintiff provided the Applicants with a waiver of defence on February 11, 2013. This was done on February 5, 2013.
(iii) On February 11, 2013, the Defendants mailed a Notice of Intent to Defend to the Plaintiff and also mailed a copy to the Brampton Court House.
(iv) The Plaintiff denies ever receiving the Notice of Intent to Defend.
[4] An Affidavit of Service was filed with the court indicating service of the Notice of Intent to Defend on the Plaintiffs on February 11, 2013. For the purposes of this motion, I will accept that the Applicants filed a Notice of Intent to Defend on February 11, 2013 and had until February 21, 2013 to file a Statement of Defence.
[5] On February 13, 2013, the Plaintiffs informed the Applicants that they had until February 20, 2013 to file their Statement of Claim.
[6] On February 21, 2013 the Applicants sent, via regular mail, a copy of their Statement of Defence to the Plaintiffs and also to the Court.
[7] On February 25, 2013, the Applicants served, via fax, the Statement of Defence on the Plaintiffs.
[8] An agent of the Applicants attended at the courthouse on February 23, 2013, to file the Statement of Defence. He was informed that the Notice of Intent to Defend had not been processed by the Court due to a backlog and that the default judgment had been signed by the Registrar on February 22, 2013.
[9] Applicable Test
The applicable test on a motion to set aside a default judgement is as follows (see Bayview Financial, L.P. v. Spartan Collision Corporation 2007 ONCA 683:
i. Did the Applicant move to set aside the default judgment as soon as possible after they became aware of the judgement?
[10] The Applicants became aware of the default judgment on February 25, 2013. It would appear from the affidavit of Laura White that as of March 14, 2013, the Applicants had decided not to bring a motion to set aside the default judgment, however, the Applicants are unrepresented and upon a review of the correspondence between the parties, I am satisfied that the Applicants moved to seek an order to set aside the default Judgment as soon as it was possible for them to do so.
ii. Does the Applicants’ affidavit set out the circumstances under which the default arose that gives rise to a plausible explanation for the default?
[11] The main Applicant, Shamshad Balroop, was in hospital during a portion of the time period, getting medical treatment. There were a number of discussions between the Applicants and the Plaintiffs in the hopes that the Applicants would obtain a mortgage to discharge the monies owed.
[12] At some point, it became clear that the financing may not be forth coming, the Applicants moved to try to file the Statement of Defence on time. I am satisfied that the reason given for the delay is plausible one.
iii. Do the Applicants set forth facts to support the conclusions that there is at least an arguable case to present on its merits?
The Applicant, have defaulted on a mortgage and have provided no evidence to demonstrate to this court that there is at least an arguable case to present on its merits, i.e. the Applicants have failed to show that there is a genuine and arguable defence on the merits and the Applicants’ motion fails for this reason.
[13] On the specific facts of this case, the efforts between the parties to permit the Applicants to obtain financing to discharge the debt, the fact that the Applicants are unrepresented and the reason why the Notice of Intent to Defend failed to come to the attention of the court in a timely manner and the efforts by unrepresented Applicants to file the Statement of Defence, albeit on the very last day, all lead this Court to conclude that this is not the appropriate case for a cost award. No order is made as to costs.
[14] In the affidavit of Shakeel Balroop, the Applicants indicate they have arranged financing to satisfy the outstanding debt, therefore this Court orders that the Plaintiff shall not act on the Default Judgment for 20 days from the date of this Order i.e. until April 28, 2013.
[15] This is to allow the Applicants time to finalize financing to pay off the debt, failing which, the default Judgment may be enforced at the discretion of the Plaintiffs.
BARNES J.
DATE: April 8, 2013
COURT FILE NO.: CV-12-5825-00
DATE: 2013/04/08
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: CIBC Mortgages Inc. and Shamshad Balroop and Satt Balroop
BEFORE: The Honourable Justice Kofi Barnes
COUNSEL: R. Aisenberg, for the Plaintiff
S. Balroop, S. Balroop for the Defendants, in person
ENDORSEMENT
Barnes J.
DATE: April 8, 2013