Court File and Parties

COURT FILE NO.: CV-17-583628 DATE: 20190725 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: George Antonopoulos, Plaintiff – and – Charles Khabouth, Alan Thomas Smith, and 1675323 Ontario Inc dba Ink Management, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Robert Smith, for the Defendants, Charles Khabouth and 1675323 Ontario Inc. dba Ink Management

HEARD: July 25, 2019

Endorsement

[1] It is now 11:00 a.m. and counsel for the Plaintiff has not appeared in court. The motion is to set aside a noting in default dated September 17, 2018 and a default judgment issued on December 21, 2018.

[2] This matter first came to motions court on July 5, 2019. On that date, only Mr. Smith was in attendance, as counsel for the Plaintiff, Mr. Ian McLaine, had at that point been administratively suspended by the Law Society. The motion was adjourned and re-scheduled for July 18, 2019.

[3] I can see from the endorsement that on July 5th, Mr. Smith advised Dow J. of the issue with Plaintiff’s counsel. Dow J. directed him to personally serve the Plaintiff with the motion materials and the endorsement containing the return date of July 18th. Mr. Smith has filed an affidavit of service demonstrating that the Plaintiff has been served. As a courtesy, he also emailed Mr. McLaine to advise him of the new date set for the hearing.

[4] Mr. Smith advises me that he has been told by Mr. McLaine that he has now resolved his matter with the Law Society and is back in good standing (although Mr. Smith has indicated that this status has not yet been updated on the Law Society’s website, which still shows Mr. McLaine as suspended). In any case, Mr. McLaine responded to Mr. Smith’s email saying that he was willing to appear on July 18th but that he would be seeking an adjournment as he had other matters to attend to and had not had a chance to prepare.

[5] Mr. Smith consented to the adjournment requested by Mr. McLaine and attended himself on July 18th to speak to the matter. Kimmel J. indicated in her endorsement of that date that the motion was adjourned on consent due to Mr. McLaine not being in a position to attend to argue it. Kimmel J. adjourned the motion to today.

[6] Mr. Smith emailed Mr. McLaine a copy of Kimmel J.’s endorsement with the new return date. Mr. McLaine emailed him back acknowledging that he had received it. The series of emails has been filed with the court by Mr. Smith, with some redactions due to settlement discussions contained in those emails.

[7] The motion to set aside the default judgment is itself a result of some form of miscommunication. The judgment was issued this past December, after Master Sugunasiri issued an Order dated August 14, 2018 “validating” service of the Statement of Claim on the Defendants. I am not sure under the circumstances what is meant by “validating” the service, and either is Mr. Smith. However, Mr. Smith advises me, and the affidavit by the Defendant, Charles Khabouth, confirms, that the Defendants were never served with the Statement of Claim. Mr. Smith states that they were unaware of the action against them until two months ago, when they went to purchase some equipment for their business and were told by a credit rating agency that there was an outstanding judgment against them.

[8] Ordinarily, I would be reluctant to grant an order in the absence of one of the counsel who seemingly was intending to appear at the hearing. However, the series of miscommunications in this matter is mysterious and has already prejudiced the Defendants. In any case, the relief they are seeking – setting aside the default judgment – does not prejudice the Plaintiff in that it simply allows the action to proceed on its merits. After setting aside the default judgment, the usual time lines in the Rules of Civil Procedure will apply to the action.

[9] The noting in default dated September 17, 2018 and the default judgment dated December 21, 2018 are hereby set aside.

[10] Mr. Smith seeks $700 in costs for his attendance today and the preparation of the motion record. That seems a modest and reasonable amount for the effort he has put in. The Plaintiff shall pay the Defendants, Khabouth and 1675323 Ontario Inc., costs in the all-inclusive amount of $700.

[11] There will be an Order to go as submitted by Mr. Smith today and amended by me.

Morgan J. Date: July 25, 2019