COURT FILE NO.: 17-72052

DATE: 2019/08/15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Manotick Concrete Ltd., Plaintiffs

AND

Daniel Boissonneault and Daniel Dubois, Defendants

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Félix Poliquin-Boutin, Counsel for the Plaintiffs

Katrina Anders, Counsel for the Defendant, Daniel Boissonneault (not appearing)

Kurt Anders, Counsel for the Defendant Daniel Dubois

HEARD: August 8, 2019

ENDORSEMENT

[1] The defendant Daniel Dubois seeks to set aside a default judgment dated September 18, 2017.

[2] The judgment is in the amount of $48,876.50 plus costs of $1,298.43.

[3] The judgment was against both Mr. Dubois and his co-defendant Daniel Boissonneault.

[4] The judgment against Mr. Boissonneault was set aside on consent on November 2, 2018.

Background

[5] Mr. Dubois and Mr. Boissonneault co-own a property at 3120 Roger Stevens Drive, North Gower, Ontario. In his submissions, Mr. Dubois’s lawyer said that Mr. Dubois and Mr. Boissonneault both live at that address.

[6] On March 31, 2015, the plaintiff, Manotick Concrete Ltd., provided Mr. Boissonneault with a quotation for work related to basement and garage floors at the property.

[7] On April 6, 2015, Manotick emailed a revised quotation and a contract to Mr. Boissonneault and asked him to sign the contract and to return it with a $2,000.00 deposit.

[8] In an affidavit in response to the Mr. Dubois’s motion, Manotick’s president, Vincenzo Trombretta, says that Mr. Boissonneault did not sign the contract but that Manotick proceeded to do the work on the basis of a verbal agreement.

[9] Manotick issued two invoices to Mr. Boissonneault, one dated April 14, 2015 in the amount of $39,377.98 and another dated May 22, 2015 in the amount of $9,720.83.

[10] Both invoices were in Mr. Boissonneault’s name.

[11] Mr. Trombetta says that after receiving the invoices, Mr. Boissonneault brought a Certificate of Aboriginal Status card to Manotick’s offices and asked for a tax credit to be applied to the invoices. Mr. Trombetta attached to his affidavit a photocopy of Mr. Boissonneault’s status card and an invoice that combined the amounts of Manotick’s two previous invoices and deducted approximately $3,500.00 in provincial tax.

[12] Mr. Boissonneault did not pay Manotick’s invoice.

[13] After a collection agency was unable to encourage Mr. Boissonneault to pay the invoice, Manotick issued its statement of claim against Mr. Boissonneault and Mr. Dubois on March 21, 2017, claiming damages for breach of contract and, alternatively, on the basis of quantum meruit.

[14] Mr. Boissonneault and Mr. Dubois were both noted in default and default judgments were obtained on September 18, 2017.

[15] On September 30, 2018, Manotick’s lawyers served Mr. Boissonneault and Mr. Dubois with notices of an examination in aid of execution scheduled for October 30, 2018. In early October, a lawyer retained by Mr. Boissonneault contacted Manotick’s lawyers and asked to have the default judgment against Mr. Boissonneault set aside. Manotick consented to an order setting aside the judgment against Mr. Boissonneault.

[16] Mr. Dubois did not attend the October 30, 2018 examination in aid of execution.

Mr. Dubois’s Position

[17] Mr. Dubois says that he had nothing to do with Manotick. In his affidavit in support of the motion, Mr. Dubois notes that Manotick’s quotation, contract and invoices are all addressed to Mr. Boissonneault and do not mention Mr. Dubois.

[18] Mr. Dubois also notes that the March 31, 2015 quotation Manotick provided to Mr. Boissonneault was not signed. He says that on the same day that Manotick gave Mr. Boissonneault the quotation, it provided a quotation and a contract for the work at 3120 Roger Stevens Drive to Roger (sic) Lamais. Mr. Dubois says that the quotation was accepted by Roger Lamais on April 6, 2016 (sic).

[19] Mr. Dubois also says that Mr. Boissonneault engaged the services of Remi Lamais Construction for certain improvements at 3120 Roger Stevens Drive. Mr. Dubois says that Mr. Boissonneault paid Remi Lamais Construction in full for its work. Mr. Dubois says that he verily believes that Remi Lamais Construction entered into a contract with Manotick and that Remi Lamais Construction either paid or attempted to pay Manotick for its labour and materials.

[20] Mr. Dubois attached to his affidavit a letter dated March 10, 2019, which is not on a company letterhead and which reads as follows:

My name is Remi Lamais, I understand that there is a outstanding account between Lamais Construction and Manotick Concrete, I entered into a contract with Manotick Concrete in April 2015 for the construction of Mr. Daniel Boissonneaults home at 3120 Roger Stevens Dr. I have been paid in full for the job, I have provided full payment by cheque to Manotick Concrete Aug 2015. One year and a half later my bank voided the cheque for not being cashed. I was never contacted about this account. Therefore I have not breached my contract with Manotick Concrete in 2015, four years ago. For further communication feel free to contact me.

Remi Lamais Construction

1971 St. Laurent Blvd APT 406

Ottawa Ontario K1G3P8

613.903.2030

[21] The name “Remi Lamais” appears in handwriting at the end of letter of March 10, 2019. The signature does not resemble the signatures on the quotation or the contract that Mr. Dubois says were signed by Roger Lamais and Remi Lamais respectively.

[22] In his affidavit, Mr. Dubois says that he has a good defence to Manotick’s action.

Analysis

[23] The parties agree that a court must consider the following factors when deciding whether to exercise its discretion under Rule 19.08(1) to set aside a default judgment:

• Whether the motion was brought promptly after the defendant learned of the default judgment;
• Whether the defendant has a plausible excuse or explanation for the default;
• Whether the defendant has an arguable defence on the merits;
• The potential prejudice to the defendant if the motion is dismissed and the potential prejudice to the plaintiff if the motion is granted; and
• The effect of any order the court might make on the overall integrity of the administration of justice.

[24] The five factors are not rigid rules; the court must decide whether, in the particular circumstances of the case, setting aside the judgment would be just. (Intact Insurance Company v. Kisel, 2015 ONCA 205 at para. 14.)

[25] I will consider each of the factors in turn and then decide whether setting aside the default judgment against Mr. Dubois would be just in the circumstances.

1. Was the motion brought promptly after the defendant learned of the default judgment?

[26] Mr. Dubois said in his affidavit that the first time he became aware of the statement of claim and default judgment was when he was told that he could not mortgage the property because there was an execution registered against his name.

[27] He did not mention when this happened.

[28] On March 22, 2019, Mr. Dubois’s lawyer[^1] informed Manotick’s lawyers that Mr. Dubois had retained him to set aside the default judgment.

[29] Two weeks earlier, on March 8, 2019, Mr. Boissonneault’s lawyer had sent a fax to Manotick’s lawyers, demanding that the writ of execution that had been registered against Mr. Boissonneault in relation to the default judgment be set aside immediately.

[30] I infer that it was in early March of 2019 that Mr. Dubois and Mr. Boissonneault tried to mortgage their property and discovered that Manotick’s outstanding judgment against Mr. Dubois and the writs against both of them were going to be a problem.

[31] Mr. Dubois offers no explanation as to why he did not take steps to set aside the default judgment at the same time as Mr. Boissonneault in the fall of 2018. Mr. Dubois’s affidavit is also silent about the notices of examination in aid of execution Manotick’s lawyers served on Mr. Boissonneault and Mr. Dubois on September 30, 2018. Mr. Dubois does not say that he did not receive the notice of examination. He does not explain why he did not appear at the October 30, 2018 examination.

[32] The notices of examination in aid of execution served on Mr. Boissonneault and Mr. Dubois clearly state that a judgment was entered against them on September 18, 2017.

[33] Mr. Dubois knew or should have known about the default judgment when he was served with the notice of examination in aid of execution and could have taken steps to set it aside at that time, just as Mr. Boissonneault did.

[34] Mr. Boissonneault retained counsel at most four days after being served with the notice of examination; Mr. Dubois waited almost six months.

[35] I find that Mr. Dubois did not move promptly to set aside the default judgment after learning about it.

2. Does the defendant have a plausible excuse or explanation for the default?

[36] Mr. Dubois’s explanation for his failure to defend Manotick’s action is that he was never served with the statement of claim.

[37] It is certainly odd that two copies of a statement of claim, in which two people who live together are named as co-defendants, would be left with an adult member of the house in which the two co-defendants live and that another copy of the statement of claim would be sent to each of the co-defendants, at the same address, the following day, and yet neither co-defendant would defend the action and one would maintain that he did not become aware of the statement of claim until almost two years later.

[38] Mr. Dubois’s contention that he did not know about Manotick’s statement of claim until he tried to mortgage the Roger Stevens Drive property is difficult to accept, particularly given other frailties in his evidence, such as his failure to address the notices of examination in aid of execution that were served on September 30, 2018, to which I referred above.

[39] That said, it would not be the first time that a statement of claim, such as this one, served by an acceptable alternative to personal service in accordance with the Rules of Civil Procedure[^2], did not meet its mark at the time it was served. It is for this reason, and to ensure that a defendant has actually received the statement of claim, that there is growing acceptance that it is a best practice for plaintiffs to serve in-default defendants with notice of a motion for default judgment, although notice is not technically required. (Casa Manila Inc. v. Iannuccilli, 2019 ONSC 7083 at paras. 11 -13 per Sanfilippo J.)

[40] Based on the evidence before me, I cannot fairly determine when Mr. Dubois first became aware or first could have become aware of the statement of claim.

3. Does the defendant has an arguable defence on the merits?

[41] Mr. Dubois did not include a draft statement of defence in his response to Manotick’s motion.

[42] In his affidavit, he appears to raise two defences to Manotick’s claim: (1) That he did not communicate with or enter into a contract with Manotick; and (2) That Mr. Boissonneault entered into a contract with Remi Lamais Construction, that Remi Lamais Construction entered into a contract with Manotick, that Mr. Boissonneault paid Remi Lamais Construction and that Remi Lamais Construction either paid or was supposed to pay Manotick. In his oral submissions on the motion, Mr. Dubois’s lawyer elaborated by explaining that Manotick should have pursued Remi Lamais Construction for payment but did not do so and that now any such claim would be statute-barred.

[43] I find that Mr. Dubois has an arguable defence to Manotick’s claim in contract. There was no evidence that he entered into a written or oral contract with Manotick. It was Mr. Boissonneault who communicated with Manotick.

[44] For the following reasons, however, I have disregarded Mr. Dubois’s evidence in respect of the defence he raised relating to Remi Lamais Construction:

a. Mr. Dubois’s evidence in respect of Remi Lamais Construction does not comply with Rule 39.01(4) of the Rules of Civil Procedure, which says that an affidavit on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit. It is not enough to say, as Mr. Dubois said more than once, “I am informed and verily do believe...” Deponents to affidavits must specifically identify the source of the information they rely upon; verily believing, on its own, is not enough; and

b. The March 10, 2019 letter purportedly signed by Remi Lamais and attached to Mr. Dubois’s affidavit is hearsay.

[45] Further, Mr. Trombetta of Manotick says that, before they were disclosed in conjunction with this litigation in March of this year, he had never seen the quotation or the contract attached to Mr. Dubois’s affidavit that Mr. Dubois said were signed by Roger Lamais and Remi Lamais. Mr. Trombetta says that he was the one at Manotick who dealt directly with Mr. Boissonneault, that he was on site when the work was done at 3120 Roger Stevens Drive and that he never encountered anyone named Remi Lamais.

[46] I find that the defence Mr. Dubois’s raised based on the involvement of Remi Lamais is not an arguable defence.

[47] Mr. Dubois maintains that he should not have been included as a defendant to Manotick’s action because there is no claim against him in Manotick’s statement of claim.

[48] It is not true that there is no claim against Mr. Dubois in Manotick’s statement of claim. In its statement of claim, Manotick claims damages from both defendants for breach of contract and alternatively on the basis of quantum meruit. Manotick pleads that by providing services and materials, it enhanced the value of the defendants’ property and that the defendants received this benefit and were unjustly enriched at the expense of and to the detriment of Manotick.

[49] In his affidavit, Mr. Dubois does not dispute that Manotick did the work at 3120 Roger Stevens Drive or that he has an ownership interest in the property. He does not question the quality of the work that was done. He does not claim to have personally paid anything for the work Manotick did.

[50] Mr. Dubois has raised no arguable defence to Manotick’s claims under the doctrines of quantum meruit and unjust enrichment.

4. The potential prejudice to the defendant if the motion is dismissed and the potential prejudice to the plaintiff if the motion is granted

[51] If Mr. Dubois had arguable defences to Manotick’s claims for both breach of contract and quantum meruit, there would be significant prejudice to him if his motion were to be dismissed. Mr. Dubois has, however, raised no arguable defence to the quantum meruit claim. As he has raised no defence to one of Manotick’s claims, he cannot realistically argue that he would be prejudiced by being deprived of the opportunity to deliver a statement of defence to Manotick’s action.

[52] There is evidence that Mr. Boissonneault and Mr. Dubois wish to mortgage their property. If the motion is granted, Manotick’s writ of execution against Mr. Dubois is lifted and Mr. Boissonneault and Mr. Dubois register a mortgage, Manotick will potentially be prejudiced. This is because of the reduced equity in the property that would be available to satisfy a future judgment and because Mr. Boissonneault and Mr. Dubois may be less motivated to pay a judgment in the future than they are now, when Manotick’s writ of execution is standing in the way of their desired mortgage.

5. The effect of an order setting aside the default judgment on the integrity of the administration of justice

[53] The following facts are in evidence on this motion:

• Manotick performed work at 3120 Roger Stevens Drive and was not paid for it.
• Mr. Boissonneault and Mr. Dubois co-own and live at 3120 Roger Stevens Drive.
• Mr. Boissonneault denies that he had a contract with Manotick. Both Mr. Boissoneault and Mr. Dubois say that Manotick’s contract was with Remi Lamais Construction. However, after receiving Manotick’s two invoices, which were in Mr. Boissonneault’s name, Mr. Boissonneault asked Manotick to apply a tax credit to the invoices and Manotick did so.
• Manotick served a statement of claim on both defendants in accordance with the Rules of Civil Procedure.
• Manotick obtained a default judgment against both defendants in accordance with the Rules of Civil Procedure.
• Manotick served notices of examination in aid of execution on both defendants in accordance with the Rules of Civil Procedure.
• Mr. Boissonneault responded promptly to his notice of examination by asking to have the default judgment against him set aside. Manotick agreed to do so.
• Mr. Dubois did not respond to his notice of examination either by asking to have the default judgment against him set aside or by attending the examination in aid of execution.
• Almost six months after the notice of examination was served on Mr. Dubois, and only after he learned that the writ of execution was preventing him from mortgaging the Roger Stevens Drive property, Mr. Dubois asked Manotick to set aside the default judgment against him.
• Mr. Dubois said that he did not receive the statement of claim but does not say that he did not receive the notice of examination.
• Mr. Dubois does not explain why he did not attend the examination.
• Mr. Dubois does not explain why he did not take steps to set aside the default judgment at the time Mr. Boissonneault did so.
• Mr. Dubois acknowledges that he is a co-owner of 3120 Roger Stevens Drive and that Manotick provided labour and materials at that address.
• Mr. Dubois does not say that he paid Manotick or anyone for the work.
• Mr. Dubois has expressed no surprise, anger, consternation or concern that he is being sued for a debt to Manotick which remains unpaid and which he says Remi Lamais was to have paid on his behalf.

[54] I conclude that it would shake the integrity of the justice system if, on these facts, the default judgment against Mr. Dubois were to be set aside. With this backdrop, a plaintiff could have no faith in the system if a defendant, after thumbing his nose at the plaintiff’s collection efforts until they began to inconvenience him, were to be given an opportunity to defend the plaintiff’s action.

[55] Even if I were to order Mr. Dubois to pay Manotick’s costs to date and to pay the full amount of the judgment into court as conditions of setting aside the default judgment, because Mr. Dubois has raised no arguable defence to Manotick’s quantum meruit and unjust enrichment claims, setting aside the judgment would merely add to the delay, expense and frustration for Manotick. Further, as I noted above, Mr. Boissonneault’s and Mr. Dubois’s intention to mortgage the property at 3120 Roger Stevens Drive could affect Manotick’s efforts to realize on a future judgment.

Conclusion

[56] Having considered the five relevant factors, I have concluded that, in these circumstances, it would not be just to set aside the default judgment against Mr. Dubois.

[57] Mr. Dubois’s motion is dismissed.

Costs

[58] The issue of costs was addressed briefly at the hearing of the motion.

[59] Manotick’s counsel presented two costs outlines, one for the costs of the action, which would have represented the costs “thrown away” had I set aside the default judgment and the other for the costs of the motion.

[60] Mr. Dubois’s counsel did not prepare a costs outline. He argued that Manotick should have consented to Mr. Dubois’s motion and that if any costs are to be awarded to Manotick, they should be awarded in the cause.

[61] Counsel may have an opportunity to make further submissions with respect to costs, should they wish to do so.

• Manotick may deliver further written submissions of no more than three pages in length within 14 days of the date of this decision;
• Mr. Dubois may deliver written submissions in response of no more than three pages in length within seven days of the date of receipt of Manotick’s submissions or, if Manotick does not deliver further written submissions, within 21 days of the date of this decision; and
• If Mr. Dubois delivers written submissions, Manotick may deliver reply submissions of no more than three pages in length within seven days of the date of receipt of the Mr. Dubois’s submissions.

[62] The costs submissions may filed by sending them to me, care of the trial coordinator.

Madam Justice Heather J. Williams

Date: August 15, 2019

COURT FILE NO.: 17-72052

DATE: 2019/08/15

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Manotick Concrete Ltd., Plaintiffs

AND

Daniel Boissonneault and Daniel Dubois Defendants

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Félix Poliquin-Boutin, Counsel for the Plaintiffs

Katrina Anders, Counsel for the Defendant, Daniel Boissonneault (not appearing)

Kurt Anders, Counsel for the Defendant Daniel Dubois

ENDORSEMENT

Madam Justice Heather J. Williams

Released: August 15, 2019

[^1]: Mr. Dubois’s lawyer is the father of Mr. Boissonneault’s lawyer and they practise in the same law firm. Mr. Dubois’s lawyer emphasized that he did not represent Mr. Boissonneault; he said that he and his daughter share office space but practise independently and do not share information about each other’s files.

[^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194