ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-396204-0000
DATE: 20150716
BETWEEN:
ABDUL NASIR
Plaintiff
– and –
1690293 ONTARIO INC., also known as AMNA INC., and MOHAMMAD SOHAIL QAZI also known as SOHAIL QAZI also known as MUHAMMAD SOHAIL and HOMELIFE/UNITED REALTY INC., BROKERAGE
Defendants
Brian Diamond, for the Plaintiff
Muhammad Qazi in person
HEARD: June 30, 2015
G. Dow, j
reasons FOR DECISION
[1] The defendant, Muhammad Qazi, seeks an order setting aside the default judgment granted by Justice Stinson on September 21, 2010. The plaintiff opposes this motion.
[2] Mr. Qazi represented himself and 1690293 Ontario Inc., also known as Amna Inc., the corporation by which Mr. Qazi operated his Just a 99 Cent Store, 849 Jane Street, Toronto, which he attempted to sell to the plaintiff in May, 2009. As a result of issues with regard to unpaid inventory, clearance certificates and other representations made, the agreement did not close and the plaintiff-purchaser commenced this action on February 2, 2010, for losses and damages incurred.
[3] The first ground raised by Mr. Qazi was that he was never served with the Statement of Claim. The evidence is the claim was personally served on Mr. Qazi and 1690293 Ontario Inc. at 3575 Kaneff Crescent, Apartment 2208, Mississauga, by leaving a copy with a Farjana Ismail at that address, who appeared to be an adult person residing in that household (Exhibit L of the affidavit of Abdul Nasir sworn September 15, 2010) and by mailing a copy to the same address in accordance with r. 16.03(5) of the Rules of Civil Procedure. Mr. Qazi advises he was no longer residing at that address as of that date, having moved to Saskatchewan. However, the plaintiff’s material includes Corporation Profile Records from September, 2010, identifying the 3575 Kaneff Crescent, Apartment 2208 address as the registered address of the corporation and Mr. Qazi as a director. This would make service effective, particularly as it applies to the corporation. Given the additional evidence below and the application of the relevant legal principles, it is not necessary to determine whether service on Mr. Qazi was effective on that basis or on that date.
[4] Judgment was obtained September 21, 2010, while Mr. Qazi was a resident of Saskatchewan. Mr. Qazi moved back to Stoney Creek before, January 10, 2012, when, as deposed by Mr. Qazi in paragraph 30 of his affidavit sworn April 13, 2015 (which the Court permitted him to refer to in the circumstances), the plaintiff saw the defendant at Flemington Square Shopping Mall in East York. This contact, which apparently resulted in an altercation, also presumably resulted in the plaintiff obtaining a current address for Mr. Qazi. The plaintiff, as a judgment creditor, proceeded to serve an appointment to examine Mr. Qazi, as a judgment debtor, in aid of execution. The examination proceeded March 1, 2012. The result was that Mr. Qazi was fully aware of the action and judgment against him by that date.
[5] Plaintiff’s counsel submitted that Mr. Qazi raised no issue about the lack of service or awareness of the action and default judgment during his examination, relying on the reporting letter his firm sent to the plaintiff March 18, 2012, detailing the information obtained (Exhibit G to the affidavit of Kevin Klayman sworn May 6, 2015).
[6] As a result, the Court concludes that it should not set aside the existing judgment of Justice Stinson. The first reason is Mr. Qazi’s explanation for the passage of time between becoming aware of the judgment and moving to set it aside is insufficient. He raises his inability to afford counsel then as now but indicates he has gained some legal acumen by completing a paralegal course. He is currently seeking certification as a paralegal by the Law Society of Upper Canada. While a unique argument, it does not accord with the law, which as noted in Mr. Qazi’s brief of authorities includes the decision of Embro v. Stojadinovich et al., [2009] O.J. No. 796, a decision of this Court February 20, 2009, which interpreted r. 19.08 as including a requirement that the motion to set aside judgment be brought without undue delay. No case presented by either party sanctions the setting aside of a judgment more than three years after it was discovered. In fact, judicial comment was made in Embro v. Stojadinovich et al. that eight months was too long in the circumstances.
[7] Regarding Mr. Qazi claiming to have a triable defence on the merits, the Court notes his proposed or draft statement of defence only raises (in paragraphs 11 through 16) that the plaintiff, Mr. Nasir, “breached the terms of the agreement when he unilaterally terminated the Agreement” and that Mr. Qazi should not be “personally liable for the conduct of the Vendor.” However, the draft statement of defence admits paragraphs 9 and 10 of the statement of claim which references the covenant by the seller (in this case 1690293 Ontario Inc. and Mr. Qazi) to indemnify the plaintiff “against all liabilities, claims and demands in connection with the purchased business.” In this regard, the plaintiff’s materials include details of Mr. Qazi failing to have or deliver the required PST clearance certificate and having failed to pay for inventory in the store contrary to what had been represented.
[8] In addition, Mr. Qazi’s position on having a triable defence is undermined by his evidence in paragraph 33 of his affidavit which states, “Finally, I am still not in a position to pay this off in full.” The Court is reinforced in its conclusion by the apparent scrutiny of Justice Stinson in his assessment of the damages as part of granting default judgment. Judgment was granted against the corporate defendant in the amount of $2,917.66 and as against Mr. Qazi in the amount of $12,072.66 with credit given to Mr. Qazi for the $15,000 deposit refunded to the plaintiff. Costs were fixed as against both defendants in the amount of $5,018.73.
[9] As a result, Mr. Qazi’s motion is dismissed. Counsel for the plaintiff submitted a costs outline of $3,293.02 inclusive of fees, HST and disbursements. The claim for costs is made on a partial indemnity basis. It appears to the Court both the time claimed, being 17.9 hours and the hourly rate of $150, are reasonable and thus this amount is awarded payable by the defendant, Mr. Qazi, to the plaintiff, Mr. Nasir.
Mr. Justice G. Dow
Released: July 16, 2015
COURT FILE NO.: CV-10-396204-0000
DATE: 20150716
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ABDUL NASIR
Plaintiff
– and –
1690293 ONTARIO INC., also known as AMNA INC., and MOHAMMAD SOHAIL QAZI also known as SOHAIL QAZI also known as MUHAMMAD SOHAIL and HOMELIFE/UNITED REALTY INC., BROKERAGE
Defendants
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: July 15, 2015