Court File and Parties

COURT FILE NO.: CV-18-00602755-0000 DATE: 2020/03/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: WEINS CANADA INC. Plaintiff

and - ENSIL CORPORATION Defendant

Counsel: Doug Bourassa for the Plaintiff Mauro Carabetta for the Defendant

HEARD: In writing

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] The Plaintiff, Weins Canada Inc. successfully brought a summary judgment motion against Ensil Corporation for breach of a commercial lease. I granted Wein Canada a summary judgment of $106,614.13 plus costs of $10,000. See Weins Canada Inc. v. Ensil Corporation, 2019 ONSC 5406.

[2] Although the Statement of Claim claimed pre-judgment and post-judgment interest at the contractual rate of interest set out in the lease, on the summary judgment motion, in its factum, Weins Canada claimed only the arrears of rent. There was no mention in the factum that a claim was being made for interest at all.

[3] Weins Canada proceeded to take out an Order in accordance with my Reasons for Decision. In its draft order, Weins Canada asserted a term ordering Ensil to pay prejudgment and post judgment interest in accordance with the lease between the parties.

[4] The contractual rate of interest is defined in the lease as “an interest rate equal to the lesser of the prime rate charged by the Royal Bank of Canada to its most creditworthy customers from time to time plus four (4%) percentage points per annum or the maximum rate permitted by law.

[5] Ensil refused to approve the Order as to form and content. Its position was that prejudgment interest and post-judgment interest were not part of my Order and I am functus officio.

[6] Without any supporting affidavit or factum and relying only on the pleadings and proceedings herein, Weins Canada brought a motion in writing for an Order fixing the interest rate on the judgment at the contractual rate of Royal Bank of Canada's prime rate plus 4% per annum. I was not advised what is the Royal Bank of Canada’s prime rate.

[7] A judge is considered to be functus officio when the Order is drawn up and entered. [1] In the immediate case, the Order has not been entered and I am not functus officio.

[8] Until an order is formally entered in the court record, the court has a broad discretion to vary or withdraw it, if it is in the interests of justice to do so. [2] In Holmes Foundry Ltd. v. Point Edward (Village), Laidlaw J.A. stated: “It is well settled in law that an order can always be withdrawn, altered or modified by a judge either on his own initiative or on the application of a party until such time as the order has been drawn up, passed and entered.” [3]

[9] However, the circumstances in which a court may vary an order are limited. Generally speaking, a court may vary an order where: (a) there are new facts arising or discovered after the order was made that might probably have altered the judgment and could not with reasonable diligence have been discovered sooner; or (b) there has been an error in expressing the manifest intention of the court. [4] Ultimately, a party seeking to set aside an order is required to show circumstances in the interests of justice that warrant deviation from the fundamental principle that a final order unless appealed marks the end of the litigation. [5]

[10] In the immediate case, I have been provided with no evidence or reason to vary or amend or add to what I said in my Reasons for Decision. I dismiss the motion.

[11] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order. The parties may submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.

Perell, J., Released March 18, 2020