Court File and Parties

COURT FILE NO.: CV-16-549471 DATE: 20170601 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 347154 Ontario Ltd., Plaintiff AND: 2465443 Ontario Ltd., Defendant

BEFORE: Carole J. Brown, J.

COUNSEL: Krista R. Chaytor, for the Plaintiff No one appearing for the Defendant

HEARD: May 31, 2017

Endorsement

[1] The plaintiff moves for default judgment in the amount of $84,081.53 arising from an action for default on a commercial lease.

[2] The statement of claim was served June 17, 2016. The defendant was noted in default on July 14, 2016. The defendant subsequently served a notice of intent to defend on July 15, 2016 and a statement of defence on August 2, 2016.

[3] The plaintiff sent numerous letters to the defendant to explain that the defendant had been noted in default, was precluded from filing a defence and that the landlord would seek default judgment if the tenant did not seek to set aside the noting in default. It further agreed to set aside the noting in default on the defendant’s fulfilment of certain conditions.

[4] This correspondence was sent on February 10, 2017, and subsequent follow-up correspondence was sent March 30, 2017, April 11, 2017 and April 18, 2017. No reply to any of the correspondence was ever received and the defendant did not agree to fulfil any of the conditions set forth in the plaintiff’s correspondence of February 10, 2017, which indicated that it would be prepared to set aside the noting in default on fulfilment of such conditions by the defendant.

[5] A Notice of Motion was served on the defendant on April 18, 2017 as evidenced by the affidavit of service produced in Court. Telephone messages were left at the defendant tenant’s telephone number on April 19, 20 and 21, 2017, again indicating the plaintiff landlord’s intention to bring this motion for default judgment. The Motion Record was served on May 16, 2017, again as evidenced by an affidavit of service provided to the Court. No response was received regarding any of the correspondence forwarded to the defendant nor to the telephone messages left. No response from the defendants was heard as regards the Notice of Motion or the Motion Record. No one appeared in Court on behalf of the defendant today.

[6] Ms. Chaytor advised the Court that she had received a letter by facsimile on May 30, 2017 at 18:34 advising that the defendant had not received the motion record until May 28, would not be present in Court on May 31 and requesting an adjournment. I reviewed the correspondence sent.

[7] Given the circumstances of this case, and the number of letters, telephone calls and notices to the defendant commencing February 2017 regarding the plaintiff’s intention to proceed with this motion, and the lack of any response from the defendant until May 30, this Court determined that the motion should, in all of the circumstances, be heard.

[8] The plaintiff has provided a significant volume of documentation evidencing the commercial tenant’s defaults pursuant to the lease, as set forth in the supporting affidavit of the president of the plaintiff and the exhibits attached thereto. Based on the evidence before this Court, and a perusal of the lease and documents, I am satisfied that the defendant was in default on the lease, that the appropriate notice regarding default and intention to pursue claims against the tenant pursuant to the lease was provided and that the landlord plaintiff has taken all reasonable steps to mitigate its damages and to lease the premises to a new tenant. Based on those efforts to mitigate, the plaintiff was able to secure a new tenant, with a new lease commencing August 1, 2016, with basic rent payable from October 1, 2016. Based on the lease provisions, the evidence of the defendant’s defaulting on the lease, the amounts not paid by the tenant regarding expenses and costs and the difference between the original basic rent and the new rent for the remainder of the original term, less the amounts received as a result of the securing of a new tenant, all as set forth in the calculation of amounts owing at Tab 2 V of the Motion Record, I am satisfied that the plaintiff’s claim for $84,081.53 is owing by the defendant.

[9] The plaintiff also seeks its costs of the action and this motion in the amount of $14,931.62, inclusive of disbursements and HST, which I grant.

[10] I grant default judgment in the amount of $84,081.53 and costs of $14,931.62, payable by the defendant to the plaintiff. Default Judgment to go as signed.

Carole J. Brown, J.

Date: June 1, 2017