Court File and Parties

Barrie Court File No.: CV-17-1000 Date: 20190718 Ontario Superior Court of Justice

Between: 1605041 ONTARIO LIMITED, Applicant – and – 2424033 ONTARIO LTD., Respondent

Counsel: R. Christopher M. Belsito, for the Applicant Emilio Bisceglia, for the Respondent

Heard: June 28, 2019

Reasons for Decision

MULLIGAN, J.:

[1] This matter proceeded by way of trial heard May 15 and 16, 2018. For Reasons released on November 27, 2018, Judgment was granted in favour of the Respondent, 2424033 Ontario Ltd. (242).

[2] The Respondent now brings a motion under r. 59.06(1) of the Rules of Civil Procedure on the basis that there was a calculation error with respect to certain missed mortgage payments said to have fallen due up to the date of the Reasons for Judgment. The Applicant, 1605041 Ontario Limited (160), opposes the relief sought.

[3] In addition, counsel for 160 brings a motion to be removed from the record.

[4] For reasons given orally at this hearing, counsel’s application to be removed from the record was denied. Counsel for 160 served and filed a response to 242’s motion record and made submissions with respect to 242’s motion at this hearing.

[5] Rule 59.06(1) of the Rules of Civil Procedure gives the court limited scope to correct errors or omissions from judgments. That rule provides that “an order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.”

[6] The grounds for the relief sought by 242 are set out in its Notice of Motion. For ease of reference, paragraphs 3 to 8 provide context for the relief sought, these paragraphs provide as follows:

3. At paragraph 51 of the Reasons, His Honour calculates the amount outstanding on the Second Mortgage of which 2424033 Ontario Ltd. is the Mortgagee and 1605041 Ontario Limited is the Mortgagor;
4. The calculations of the amount owing under the Second Mortgage only include 11 missed monthly interest payments of $3,250.00;
5. It was an undisputed fact at trial that the last monthly interest payment 1605041 Ontario Limited made on the Second Mortgage was the December 2016 payment ( para. 122 of the Request to Admin of 2424033 Ontario Ltd. dated April 24, 2018 which is an admitted fact by 1605041 Ontario Limited in its Response to Request to Admit dated May 12, 2018 );
6. Therefore, from January 2017 up to the date of the Reasons (namely November 2018), 1605041 Ontario Limited had failed to make a total of 23 monthly payments of $3250 to 2424033 Ontario Ltd. under the Second Mortgage, not 11 monthly payments as indicated in 160’s Schedule “B” Chart attached to the Reasons;
7. Therefore, the total amount of missed payments is $74,750.00, not $35,750;
8. Therefore, the total owing on the Second Mortgage (the 242 Mortgage) should be corrected to reflect an additional $39,000.00 outstanding in missed payments for a total owing on the Second Mortgage of $395,200, not $356,200.00;

[7] Attached to the Reasons for Judgment was Schedule “B” which dealt, in part, with non-payments due. However, that chart was not updated as to the number of payments missed by the date of trial, or with the continuing missed payments until the date of Judgment.

Position of 1605041 Ontario Limited

[8] 160 responds that r. 59.06(1) of the Rules of Civil Procedure is narrow in scope and has no application here. As 160 concludes in its Factum at para. 15, “it is the Applicant’s [160] contention that this motion appears, on it’s face, to be frivolous, vexatious or otherwise and abuse of process of the court within the meaning of Rule 2.1(01) of the Rules of Civil Procedure.”

Analysis

[9] In Millwright Regional Council of Ontario Pension Trust Fund (Trustees of) v. Celestica Inc., 2013 ONSC 1502, Perell J. considers the scope and context of r. 59.06(1) of the Rules of Civil Procedure at paras. 30 to 33 as follows:

[30] Rule 59.06 (1) is designed to amend judgments containing a slip or error, errors which are clerical, mathematical or due to misadventure or oversight. The rule is designed to amend judgments containing a slip, not to set aside judgments resulting from a slip in judicial reasoning… Rule 59.06 (1) is not designed to be a disguised means to review errors in the making of the Reasons for Decision; rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment.

[31] Generally speaking the court’s inherent and statutory jurisdiction to amend an order or judgment is limited to: (1) cases of fraud; (2) where there has been a slip in drawing up the order; and (3) where there has been an error in the order expressing the manifest intention of the court from its reasons for decision… The rule is only operative in exceptional circumstances given the public interest in the principle of finality to the litigation process.

[32] Under rule 59.06(1) of the Rules of Civil Procedure, the Court has the power to amend an order where there has been an error in expressing the manifest intention of the Court.

[33] The rule permits amendments where the order obviously or indubitably does not reflect what the court intended to do, either by error or oversight.

[citations omitted]

Conclusion

[10] I am satisfied that the moving party, 2424033 Ontario Ltd., is entitled to the relief sought. By way of its request to admit, 1605041 Ontario Limited did not dispute the date upon which mortgage payments stopped. The Reasons for Judgment ought to have reflected the missed payments which continued after the date of the Schedule “B” summary, to the date of trial and the date of Judgment. I am satisfied that the Judgment ought to be amended to reflect 23 missed monthly payments of $3,250, rather than the 11 monthly payments reflected on Schedule “B”. Therefore, the total amounts of missed payments is $74,750. In the result, the amount required to discharge the second mortgage is $395,200.

Costs

[11] The Respondent, 2424033 Ontario Ltd., was the successful party on this motion. However, the costs for the trial have not yet been determined. The parties are now entitled to make submissions with respect to this motion and the trial itself. The Respondent, 2424033 Ontario Ltd. has 20 days to make brief written submissions not exceeding 5 pages, together with a Bill of Costs. 1605041 Ontario Limited thereafter has 15 days to file a response. Thereafter, 2424033 has 10 days for a brief reply, not exceeding 2 pages. Submissions may be made to my judicial assistant in Barrie.

Mr. Justice G.M. Mulligan Released: July 18, 2019