Advant Leasing Limited v. Kozicki, 2020 ONSC 4292
COURT FILE NO.: CV-19-629081 DATE: 20200713
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ADVANT LEASING LIMITED, Plaintiff AND: JOSEPH MARK KOZICKI AND KOZICKI PRODUCE LTD., Defendants
BEFORE: Sanfilippo J.
COUNSEL: Neil P. Gill, for the Plaintiff No one appearing, for the Defendant (Not served)
IN WRITING: July 13, 2020
ENDORSEMENT
1The Plaintiff, Advant Leasing Limited (“Advant Ltd.”), brought this motion in writing without notice to the Defendants, Joseph Mark Kozicki and Kozicki Produce Ltd. (Kozicki Ltd.”) for judgment in accordance with the Statement of Claim issued in this Simplified Procedure action, initiated pursuant to Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg., 194. The Plaintiff relied on a Notice of Motion dated November 28, 2019 and a supporting affidavit sworn November 26, 2019, although the materials were filed on June 12, 2020.
2The Plaintiff did not file a “Request to Schedule Short, Opposed Motion”, further to the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, Regarding the Expanded Operations of the Ontario Superior Court of Justice, dated May 13, 2020 and effective May 19, 2020, and the Toronto Region’s Notice to the Profession setting out the “Toronto Expansion Protocol for Court Hearings During the COVID-19 Pandemic”. Accordingly, there has been no triage determination of the manner and process for the hearing of this motion for default judgment at this time, including whether the motion should be determined in writing or with oral argument.
3I have concluded that this motion may be heard in writing, but after service on the Defendants of the motion record, including any supplementary motion materials, and after provision of a time for response, in accordance with a procedure that I will now explain.
A. This Action
4The Plaintiff issued its Statement of Claim on October 11, 2019. The Plaintiff alleged that it entered into two Lease Agreements with the Defendant, Mr. Kozicki, as follows:
(a) On October 11, 2017, Lease No. 14378 for the lease of a used 4-axle Live Bottom Trailer bearing vehicle identification number ending in 4014 (the “1st Trailer Lease”)
(b) On October 11, 2017, Lease No. 14379 for the lease of one used 4-axle Live Bottom Trailer bearing vehicle identification number ending in 0358 (the “2nd Trailer Lease”).
5Additionally, the Plaintiff alleged that on April 1, 2019, it entered into a third lease with both Defendants, Mr. Kozcki and Kozicki Ltd., for the lease of one used 2006 tractor, having vehicle identification number ending in 3654 (the “Tractor Lease”).
6In an affidavit sworn November 26, 2019, Mr. Jason Bonneville, the President of Advant Ltd., deposed that on September 19, 2019, Advant Ltd. served Mr. Kozicki and Kozicki Ltd. with a Notice pursuant to section 63 of the Personal Property Security Act, R.S.O. 1990, c. P.10, alleging default in payment of all three Leases. [1]
7The Plaintiff pleaded that, as of the date of the issuance of the Statement of Claim on October 11, 2019, Mr. Kozicki owed $25,104.70, inclusive of HST, on the 1st Trailer Lease and the 2nd Trailer Lease. Mr. Bonneville deposed that as of November 21, 2019, the amount owing had increased to $30,253.38, with interest and costs. [2]
8The Plaintiff pleaded that Mr. Kozicki and Kozicki Ltd. were jointly and severally liable to the Plaintiff in the amount of $78,383.86 on default in payment of the Tractor Lease. The Plaintiff also claimed interest at the Lease rate of 24% per annum and costs. The Plaintiff alleged that subsequent to the issuance of its Statement of Claim, the Plaintiff was able to sell the equipment under the Tractor Lease. The Plaintiff submitted that after crediting the amount recovered, the balance owing under the Tractor Lease, as of November 21, 2019, was $54,048.06. [3]
9The Plaintiff contended that it recovered the equipment leased under the 1st Trailer Lease and the 2nd Trailer Lease but, according to Mr. Bonneville, had not, as of November 2019, realized any recovery on this repossessed equipment and therefore had not credited any amount against the amounts said to be owing.
10When the Defendants did not deliver their Statements of Defence, the Plaintiff filed a Requisition for the noting in default of Mr. Kozicki and Kozicki Ltd., which was issued by the Registrar of this Court on December 2, 2019.
B. This Motion
11The Plaintiff sought default judgment against the Defendant Mr. Kozicki in the amount of $30,253.38, and interest in the contract amount of 24% from November 2019 and costs, and default judgment against both Mr. Kozicki and Kozicki Ltd., jointly and severally, in the amount of $54,048.06, and interest from November 2019 and interest in the contract amount of 24% and costs.
C. Analysis
12I adjourn this motion for default judgment to allow the Plaintiff to file further motion materials, as follows:
(a) the Bonneville Affidavit, being the only affidavit filed in support of this motion does not attach, in sworn form, any of the Exhibits “A” to “F” referred to in the Bonneville Affidavit, in contravention of Rule 4.06(3) of the Rules of Civil Procedure. As such, these documents do not form part of the evidentiary record on this motion.
(b) The affidavit evidence in support of the motion is dated, having been sworn on November 26, 2019, and must be updated to address the current status of realization, including the equipment repossessed under the 1st Trailer Lease and the 2nd Trailer Lease, as part of the Plaintiff’s discharge of its burden under Rule 19.06 of the Rules of Civil Procedure.
(c) The Moving Party Plaintiff shall deliver a factum. [4] The factum should address, amongst other things, the Plaintiff’s submissions on the computation of damages, the application of the credits resulting from mitigation, as well the legal basis for the entitlement to the rate of pre-judgment and post-judgment interest sought.
13On the basis of the reasons that I explained in Casa Manila Inc. v. Iannuccilli, 2018 ONSC 7083, at paras. 9-17, I exercise my discretion under Rule 19.02(3) of the Rules of Civil Procedure to order that the Plaintiff serve the Defendants with its Motion Record, including its supplementary motion materials and its factum, together with a copy of this endorsement.
14In addition to sending all documents to the Court by email, the Plaintiff shall provide an online document storage location at www.sync.com and advise the Motions Coordinator of the location (the “Document Folder”). I adopt the statement by F.L. Myers J. in Mann v. Chac-Wai, 2020 ONSC 3428, at paras. 7-10, of the purpose for the use of two distinct filing processes during this time: specifically, electronic filing with the Court; and the filing in the Document Folder.
D. Disposition
15The motion for default judgment is adjourned, and shall proceed as follows:
(a) the Plaintiff shall, by July 31, 2020, serve the Defendants with its Motion Record, as supplemented by its further affidavit evidence, and its factum of no more than 15 pages in length, and a copy of this endorsement.
(b) If the Defendants, or either of them intends to respond to this action and to this motion, they shall do so by August 21, 2020 by serving the Plaintiff’s counsel with any response to this motion in writing for default judgment including any motion to set aside the noting in default.
(c) the Plaintiff shall file in the Document Folder any responding material served by the Defendants, or either of them.
(d) the Plaintiff shall deliver its Motion Confirmation Form by August 28, 2020, listing the motion materials relied upon, including any materials by then received from the Defendants and filed. The Plaintiff shall include in its Motion Confirmation Form the weblink for the Document Folder, which must contain all the motion materials.
(e) this motion in writing will then be considered the week of September 7, 2020.
16I am seized of this motion.
17Notwithstanding Rule 59.05 of the Rules of Civil Procedure, this Order is effective from the date it is made and is enforceable without any need for entry and filing. The requirement of preparation, issuance and entry of a formal order is hereby dispensed with, in accordance with Rule 77.07(6) of the Rules of Civil Procedure.
Sanfilippo J. Date: July 13, 2020
Footnotes:
1Affidavit of Jason Bonneville sworn November 26, 2019 (“Bonneville Affidavit”), para.16.
2Bonneville Affidavit, paras. 18, 26 and 27.
3Bonneville Affidavit, paras. 18, 20, 21, 23 and 28.