Court File and Parties
COURT FILE NO.: 19-CV-618176 MOTION HEARD: 20200113 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ecohome Financial Inc., Plaintiff AND: Min-Li Chang, Defendant
BEFORE: Master Abrams
APPEARING: Brian Diamond, for the Plaintiff Min-Li Chang, Defendant
HEARD: January 13, 2020
REASONS FOR DECISION
[1] The defendant seeks an Order setting aside default judgment obtained against her on May 14/19.
[2] The plaintiff says that the judgment should remain in place or, if it is set aside, that the execution that was filed, following judgment, should remain in place.
[3] On March 28/18, the defendant entered into a rental agreement with the plaintiff for the rental of a furnace, air conditioner, HEPA filter and water filtration system (the “equipment”). The agreement consolidated and continued separate individual equipment agreements entered into by the defendant and a company called Canadian Standard Home Services.
[4] The defendant used and has continued to use the equipment and, until March 28/18, paid what was due and owing under the individual agreements with Canadian Standard Home Services.
[5] The consolidating/continuing agreement with the plaintiff reflected negotiations between the plaintiff and the defendant for better rates than the defendant had earlier been paying. The defendant signed an agreement with the plaintiff with reduced rates reflected and, though she had wanted the rental term to be shorter, signed off on a rental term of 120 months.
[6] Thereafter, the defendant complained, again, about the rates being charged for the equipment and a further reduction was agreed to by the plaintiff.
[7] Despite having negotiated and renegotiated the terms of her agreement with the plaintiff, the defendant failed to make the monthly payments agreed to by her.
[8] A statement of claim was issued by the plaintiff and served, personally, on the defendant, on April 17/19. The defendant failed to defend the action and judgment issued. Thereafter, a writ of seizure and sale was filed by the plaintiff.
[9] In November/19, the defendant brought this motion. Her motion record does not contain even a draft statement of defence and makes extensive reference to the defendant’s complaints with Canadian Standard Home Services, which complaints are being addressed in a consumer protection forum.
[10] What the defendant alleges that the plaintiff (not Canadian Standard Home Services) did wrong vis-à-vis its interactions with/contract with/services provided to her is not clear. Though she has said in her complaint filed with Consumer Protection Ontario that she “will pay the amount that [she] had originally agreed on”, since March of 2018 the defendant has paid nothing for the equipment which she uses.
[11] And while the defendant references depression and hopelessness and a most unfortunate medical event that preceded her dealings with the plaintiff as rendering it “harder for [her] to keep up with…threats”, she doesn’t explain how it was that she had the physical and emotional wherewithal to enter into negotiations with the plaintiff and to register consumer complaints. I do not doubt the veracity of what the defendant says in terms of her medical status; I simply note that she was able to address some issues with respect to the equipment and to her stated dissatisfaction during the relevant time period.
[12] There are problems with the defendant’s motion. Specifically:
Explanation for the Default: The defendant says that she “was overwhelmed by EcoHome Financial Inc.[‘s] constant correspondence and missed the statement of claim”. The plaintiff’s evidence is that the statement of claim was personally served; and, the defendant has filed copies of no correspondence sent by the plaintiff or anyone on the plaintiff’s behalf in or around April 17/19 (that might have distracted her/that might have overwhelmed her).
Delay: Judgment was granted in May/19, with a copy sent to the defendant with a cover letter in late September/19. The defendant did not communicate with the plaintiff about the judgment for some two months.
Defence on the Merits: The defendant made payment on each of the four pieces of the equipment installed at her home over a period of some two years. Her dispute with Canadian Standard Home Services notwithstanding, she has acknowledged having contracted with the plaintiff for “30% off as bundle discount”, with a waiver of “previous disputes” (Exhibit “M” to December 31/19 affidavit of Peter Soon). The defendant is indeed receiving the 30% bundle discount from the plaintiff. And though she has said that she will pay the amount agreed to (Exhibit “J” to the November 21/19 affidavit of Min-Li Chang), she has not done so. She has had the benefit of the equipment for some two years, at no cost to her.
Prejudice: The prejudice to the defendant if this motion fails is that she will have to pay for the equipment of which she had use for some two years, gratis--with no opportunity to revisit the amounts charged (including interest). The prejudice to the plaintiff if this motion succeeds is that its equipment will continue to depreciate; it will lose income on the equipment, pending a determination of the issues herein; and it will be denied any form of security, though the equipment remains in the defendant’s possession (for her use).[^1]
Integrity of the Administration of Justice: The defendant is self-represented but was sophisticated enough to negotiate a better deal for herself, to avail herself of some self-help remedies and to confer with Pro Bono Law (see: para. 5 of November 21/19 affidavit of Min-Li Chang). She has not paid anything on account of the equipment for some two years, though she has stated an intention to make some payment on account; she has not adequately explained her default (with no evidence of “constant correspondence” with the plaintiff having been proffered by her); and she has not offered a reasonable defence on the merits. That said, the motion materials filed by the defendant do seem to confuse/intertwine the plaintiff and Canadian Standard Home Services; there is some evidence of the defendant having had to deal with serious health issues in the two years leading up to this claim; and it is not clear to me that the defendant comprehended the implications of failing to defend and/or understood that registering a consumer protection complaint would not displace the need to deliver a defence.
[13] A judgment may be set aside or varied by the court “on such terms as are just” (R. 19.08(1)). The “…court’s ultimate task is to decide whether, in the particular circumstances of the case, it is just to relieve a defendant from the consequences of default” (Papapoulias v. Berry, 2018 ONSC 84, at para. [18](https://www.canlii.org/