Alfonso Izzo v. Tonnina Ministro, 2020 ONSC 6703

CITATION: Alfonso Izzo v. Tonnina Ministro, 2020 ONSC 6703

COURT FILE NO.: CV-19-633041 DATE: 20201102

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ALFONSO IZZO and ELVIRA IZZO, Plaintiffs AND: TONNINA MINISTRO, JOAQUIM MINISTRO and MARINA MASTRACCI a.k.a. MARISA MASTRACCI, Defendants

BEFORE: Sanfilippo J.

COUNSEL: Enio Zeppieri and Gregory Gryguc, for the Plaintiffs No one appearing, for the Defendants

IN WRITING: November 2, 2020

ENDORSEMENT

1The Plaintiffs, Alfonso Izzo and Elvira Izzo, brought this motion in writing for judgment against the Defendants, Tonnina Ministro, Joaquim Ministro and Marina Mastracci a.k.a. Marisa Mastracci 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 Simplified Procedure Motion Form (the “Motion Form”) dated October 21, 2020 and a supporting affidavit sworn that day by their lawyer (the “Lawyer’s Affidavit”).

2The relief sought in this Motion cannot be granted on the current record. I will explain why, and in doing so will also explain the steps that the Plaintiffs are required to take for this Motion to be re-submitted for adjudication.

3First, the Motion Record is unclear regarding whether the Motion Record has been served, or was intended to be served. Page 2 of the Motion Record lists the Defendants as parties on whom the Plaintiffs purport to serve the Motion Record by email and by regular mail. This is inconsistent with the first page of the Motion Form (p. 5 of the Motion Record), which states that the motion is made “without notice”. This ambiguity is compounded by the listing on the last page of the Motion Form (p. 9 of the Motion Record) that service of the Motion Record will be made on S. Dale Denis of the law firm Denis & Infuso, in their stated capacity as lawyers for the Defendants. This identification of lawyers of record for the Defendants is inconsistent with the Plaintiffs’ submission that the Defendants have not defended this action. The Plaintiffs must clarify the role of the law firm of Denis & Infuso as counsel for the Defendants, and whether the Motion Record has been served on the Defendants, whether through their counsel or, if not, by service on the Defendants directly as self-represented parties.

4If the Plaintiffs have not served the Defendants with their Motion Record, I direct that they do so, on the basis of the reasoning set out in Casa Manila Inc. v. Iannuccilli, 2018 ONSC 7083, at paras. 9-17.

5Second, the Index of the Motion Record states that the Noting in Default is attached as Tab “G” (p. 3 of the Motion Record). The Motion Record does not have a Tab “G”. The Plaintiffs must requisition the Noting in Default, and include it in their Motion Record, as part of their motion for default judgment: Rules 19.01(1), of the Rules of Civil Procedure. This step is required for the Plaintiffs to move for judgment before the Registrar on a “debt or liquidated demand in money, including interest”, as provided by Rule 19.04(1), or to advance this motion before a Judge: Rule 19.05.

6Third, the Motion Record does not attach the Statement of Claim on which judgment is being sought.

7Fourth, this Motion is supported by only the Lawyer’s Affidavit, annexing the Promissory Notes said to be in default, and deposing that the lawyer believes his clients’ information that the two Promissory Notes were signed by the Defendants and that no payments have been received by his clients on the Promissory Notes from the time of their execution. The lawyer deposes to his belief, on information from his clients, that interest in the amount of $68,970.80 has accrued on the principal amount loaned of $41,000 in the two years since the alleged execution of the promissory notes. The Plaintiffs have not provided any detail of these calculations.

8The use of hearsay evidence on a motion is permitted by Rule 39.01(4). However, the inclusion of hearsay evidence on a central point in issue is not proper: Beach v. Toronto Real Estate Board, 2010 ONSC 30001, 97 C.P.C. (6th) 127, at para. 5; Shah v. LG Chem, Ltd., 2015 ONSC 2628, 125 O.R. (3d) 773, at para. 71; Glasjam Investments Ltd. v. Freedman, 2014 ONSC 3837, at para. 33. The Plaintiffs’ tender of affidavit evidence on this Motion is to advance compliance with Rule 19.06, notwithstanding Rule 19.05(2). The central evidence on this Motion, being the validity of the Promissory Notes, the alleged non-payment and the computation of interest, ought properly to be provided by the Plaintiffs, or either of them.

9To advance this Motion further, I direct the Plaintiffs to address the deficiencies identified herein, after which they may re-file this Motion for adjudication and may specify their request for either an oral hearing or a determination in writing. I am not seized of this Motion.

10Notwithstanding Rule 59.05, this Order is effective from the date that it is made and is enforceable without the need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party may nonetheless submit a formal order for original signing, entry and filing.

Sanfilippo J.