Court File and Parties
COURT FILE NO.: CV-20-529-00
DATE: 2021 05 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
B.H.L. CAPITAL, A DIVISION OF BERNER HOLDINGS LTD.
Ron Aisenberg, for the Plaintiff
Plaintiff
- and -
2280858 ONTARIO CORP., HAMEED BADRUDDIN, and FARHAT NASEEM HAMMED
Satish Mandalagiri, for the Defendants
Defendants
HEARD: February 9, 2021 and Written Submissions filed April 16, 2021
REASONS FOR DECISION
P.A. DALEY J.
A. Introduction:
[1] The plaintiff moves for summary judgment in respect of a truck and a trailer lease entered into where the plaintiff was the lessor, and the defendants were the lessees. The defendant 2280858 Ontario Corp. ("228") took possession of the truck and trailer and the defendants Badruddin Hameed and Farahat Nazeem Hameed (the "defendants Hameed") executed the leases as officers and directors of 228, and as jointly and severally liable with 228 for the performance of both leases.
[2] The parties entered into two separate leases; namely, a lease of a used tandem utility trailer (the "Trailer") and a lease of a 2012 Volvo Truck (the "Volvo").
[3] The defendants are alleged to have defaulted in making payments under the terms of both leases. The plaintiff elected not to terminate either lease, but rather left the leases to run to the end of their respective terms, and in this action it seeks payment of all monies due and owing as arrears of rent with respect to these leases.
[4] The defendants dispute the plaintiff's claim and assert that the Volvo was mechanically unfit and, as a result, they incurred repair and maintenance expenses and could not operate the Volvo in their business. Therefore, they were unable to make the monthly rental payments on the Volvo lease.
[5] Furthermore, as the Volvo was allegedly unfit for use, the defendants assert that they were unable to use the Trailer in their business and as a result were unable to make the monthly lease payments on that equipment.
[6] For the reasons to follow, I have concluded that there is no genuine issue requiring a trial and based on the evidence adduced by the plaintiff and the defendants the dispute can be resolved by way of a summary judgment motion. Having considered the evidentiary record and counsel's submissions, summary judgment is granted to the plaintiff in respect of both leases.
Evidentiary Record:
[7] The plaintiff submitted affidavit evidence in its motion record in support of its request for summary judgment. The defendants filed two affidavits in opposition to the motion. One affidavit was from the defendant Hameed Badruddin and concerned the history of the leases and the events relating to the defendants' use of the Volvo and Trailer. The defendants also submitted an affidavit from Jatinder Pal Rattan, a licensed vehicle mechanic, with respect to the alleged mechanical problems with the Volvo.
[8] Notably, it is acknowledged by the defendants that they entered into the leases in question and that the amounts sought by the plaintiff following their default in payment of the monthly rent amounts pursuant to the leases are accurate in their calculations. However, the defendants dispute that they are liable to the plaintiff for the payment of those rent arrears.
[9] Neither side elected to cross-examine on the affidavit material submitted on this motion.
Trailer Lease:
[10] On December 6, 2016 the plaintiff, as lessor, and the defendants, as lessees, entered into a Lease Agreement in Respect of the Trailer and the defendants agreed to pay $4,950 plus applicable taxes on December 6, 2016 and 47 payments of $1,380.27 plus a applicable taxes on the seventh day of each month thereafter. The defendants defaulted on the monthly payments commencing March 7, 2017 and that default continued.
[11] The plaintiff elected not to terminate the Trailer lease and by the end of 2019 the defendants had paid a total of $32,694.10. The total arrears due by the end of 2019 was 36 payments at $1,559.71, inclusive of taxes, in the sum of $56,149.50. After deducting the payments made of $32,694.10, the balance outstanding in arrears was $23,455.46.
[12] The last monthly payment due on the Trailer lease was on November 6, 2020. No payments were made in 2020 and the total arrears outstanding for that year are in the sum of $17,156.81. Thus, the total arrears outstanding on the Trailer lease at the end of that lease effective November 6, 2020, is in the sum of $40,612.77.
[13] The Trailer lease at clause 21 provided that the lessor may "in its absolute discretion" choose whether or not to terminate the Trailer lease. It also states:
No remedy of Lessor available in this Lease, in law or in equity, shall be exclusive or dependent on any other such remedy, but any one or more of such remedies may be from time to time be exercised independently or in combination.
The Trailer lease, at clause 28, states, Re: interest:
Should Lessees fail to pay when due any part of the Rent or renewal Rent herein reserved or any sum required to be paid to Lessor hereunder, Lessees shall pay to Lessor, in addition to any other payments, interest on and all delinquent payments from the date thereof until paid in full at the rate of twenty-six and eighty-two one hundredths percent (26.82%), on such amount, calculated and compounded at the rate of two percent (2%) per month compounded monthly.
[14] These lease terms contained in the Trailer lease are also contained in and apply to the Volvo lease, which is considered below.
[15] As for the defendants' position as to its liability under the Trailer lease for nonpayment of arrears of rent, the defendants essentially raise one defence; namely, their right to claim relief from forfeiture. The defendants assert that they simply suffered financial hardship and the Trailer lease, as a result, went into default. It is stated in the evidence adduced that the plaintiff should have elected to repossess the trailer and treated the Trailer lease at an end in order to mitigate the plaintiff's losses as a result of the defendants' nonpayment of rent.
Volvo Lease:
[16] On December 21, 2016, the plaintiff, as lessor, and the defendants, as lessee entered into a lease agreement for the Volvo and the lease provided that the defendants would pay 48 monthly payments of $1,817.76 plus taxes on the 22nd day of each month.
[17] The defendants defaulted in monthly payments as of May 22, 2017 and the default has continued. The plaintiff elected not to terminate the Volvo lease.
[18] By the end of 2019, the defendants had paid a total of $22,724.41 in respect of this lease.
[19] The total arrears due at the end of 2019, namely over 36 months, was $73,946.52, less the payments made of $22,724.41. Consequently, the unpaid arrears as of the end of 2019 were $51,222.11.
[20] The last monthly payment due under this lease was payable on December 22, 2020. No payments were made within 2020; therefore, the arrears for that year total $24,648.84.
[21] Thus, the total arrears owed under the Volvo lease at its end on December 22, 2020 were in the amount of $75,870.95 ($51,222.11 plus $24,648.84).
[22] As noted, the Volvo lease contained the same lease terms as the Trailer lease with respect to the lessor's discretion as to whether or not to terminate the lease and as well with respect to the lessees’ obligation to pay interest when in default as set out in clauses 21 and 28 respectively in both the Trailer and Volvo leases.
[23] In response to the plaintiff's motion, the defendant filed affidavit evidence in its motion record.
[24] The evidence adduced by the defendants acknowledges that the defendant 228 entered into the Trailer and Volvo leases, as set out by the plaintiff, and that the defendants paid the monthly rent amounts for a period.
[25] The defendants, however, allege that due to mechanical problems with the Volvo, during its lease, the defendants incurred repair expenses. It is further stated that the Volvo was involved in an accident in 2017, following which the defendants delivered the Volvo to a vehicle repair shop. After certain accident-related damages were repaired at this facility, the repair shop registered a Repair and Storage Lien as a result of the defendants' nonpayment of the repair and storage costs.
[26] Pursuant to its registered lien and the provisions of the Repair and Storage Lien Act, R.S.O. 1990, C. r.25, the repair shop transferred ownership of the Volvo, and as such the defendants assert that the plaintiff, having lost ownership of the Volvo, thereby lost any right to claim and recover from the defendants any monies otherwise owing under the Volvo lease in respect of their default in payments.
[27] Although not clearly pleaded nor enunciated in its submissions on this motion, the defendants further assert that an unspecified limitation period bars the plaintiff from making a recovery of its losses under the Volvo lease.
[28] The individual defendants Hameed assert in the evidence adduced that their personal liability under the two leases that they entered into and signed along with 228 was not explained to them by the plaintiff's representative in breach of an obligation on the part of the plaintiff's representative to do so. These defendants offered no other evidence disputing their personal liability under the leases.
LEGAL FRAMEWORK:
Summary Judgment Motion
[29] Pursuant to rule 20.01 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the plaintiff may move, with supporting affidavit evidence for summary judgment on all or part of a claim in a statement of claim.
[30] The court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence: rule 20.04 (2) (a).
[31] In responding to a motion for summary judgment, a party may file affidavit material or other evidence setting forth specific facts showing that there is a genuine issue requiring a trial and that party may not rest solely on the allegations contained in their pleading: rule 20.02 (2).
[32] There will be no genuine issue requiring a trial when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, at para. 49.
[33] On considering a motion for summary judgment, the court must first determine if there is a genuine issue requiring a trial based only on the evidence before the court, without using the fact-finding powers under rules 20.04 (2.1) and (2.2)
[34] A summary judgment motion must be adjudicated based on the pleadings and materials actually before the court, not on suppositions about what might be pleaded or proved in the future: Canada (Attorney General) v. Lameman, 2008 SCC 14, 292 DLR (4th) 49, at para. 19.
[35] The decision in Hryniak did not displace the "best foot forward" principle and the court will consider that the parties have placed before it all of the evidence that would be available for trial: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 32 and 33, aff'd 2014 ONCA 878.
[36] A party opposing summary judgment must show "a real chance of success". A self-serving affidavit is not sufficient to create a triable issue in the absence of detailed facts and supporting evidence: Rozin v. Ilitchev et al., 2003 CanLII 21313 (Ont. C.A.), at para. 8.
Election in Response to Repudiation or Fundamental Breach of a Contract
[37] In the seminal decision from the Supreme Court of Canada in Highway Properties Ltd v. Kelly, Douglas and Co. Ltd., 1971 CanLII 123 (SCC), [1971] S.C.R. 562, at p. 570, Laskin J. stated that if a tenant is in fundamental breach of a lease or has repudiated it entirely, the landlord has three options:
He may do nothing to alter the relationship of landlord and tenant, but simply insist on performance of the terms and sue for rent or damages on the footing that the lease remains in force. Second, he may elect to terminate the lease, retaining of course the right to sue for rent accrued due, or for damages to the date of termination for previous breaches of covenant. Third, he may advise the tenant that he proposes to re-let the property on the tenant's account and enter into possession on that basis.
[38] A repudiatory (or fundamental) breach of a contract does not in itself, terminate or discharge the contract. The effect of a repudiation depends on the election made by the innocent party: Brown v. Belleville (City), 2013 ONCA 148, at para. 42; Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733 at para. 25.
[39] In the case of an anticipatory repudiation, an innocent party, who wishes to be discharged from the contract may make an election which must be clear and unequivocally communicated to the repudiating party within a reasonable time: Brown v. Belleville (City), supra, at para. 45.
[40] In Highway Properties, the court noted that an election to terminate the contract would also occur where a repudiation arises in respect of a business contract not involving an estate in land: Highway Properties Ltd. v. Kelly, Douglas and Co. Ltd., supra, at p. 571.
[41] There is no essential difference between a lease of real property and a lease of a chattel which informs the damages on a breach. They are both contracts and as such, damages flowing from each should be determined in accordance with general contract principles: Keneric Tractor Sales Ltd. v. Langille, 1987 CanLII 29 (SCC), [1987] 2 S.C.R. 440, at para. 22.
[42] Given this long-standing jurisprudence, upon the fundamental breach of a lease of equipment or a vehicle a lessor may choose to accept the breach and terminate the contract, or not to terminate and claim for monthly rental payments.
Relief from Forfeiture – When Available
[43] As the sole defence raised with respect to the Trailer lease is a claim for relief from forfeiture, it must be noted firstly that the contract as between the plaintiff and the defendants was a lease agreement. Clause 5 of the lease entitled: "RENTAL PAYMENT AND ACKNOWLEDGEMENT" provides:
The Lessees acknowledge that the payments under this Lease Agreement are rental payments for the use of the Equipment, and not payments of principal and interest.
[44] The Trailer lease did contain a "Purchase Option" that was at the end of 48 months. It was only available to a lessee so long as the lease was not in default.
[45] A forfeiture clause involves the "loss, by reason of some specified conduct, of a right, property or money". There is no such clause under which the plaintiff in this case is seeking to be forfeited; rather, it seeks payment of a liquidated sum: Kechnie v. Sun Life Assurance Company of Canada, 2016 ONCA 434, at para. 19.
[46] Furthermore, evidence in support of any claim for relief from forfeiture must establish a necessary condition; namely, that "the tenant has made diligent efforts to comply with the terms of the lease which are unavailing through no default of his or her own.": Wittington Properties Limited v. Goodlife Fitness Centres Inc., 2018 ONCA 52, at para. 14.
[Repair and Storage Liens Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-r25/latest/rso-1990-c-r25.html), R.S.O. 1990, C. r.25 - Frustration of Contract
[47] A contract is frustrated when as a result of a supervening event for which no provision was made by the parties, the performance of the contract becomes radically different from that which was undertaken: Patterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 746, at para. 17.
[48] A party is precluded from taking advantage of and benefiting from a state of affairs produced by its own wrong. In other words, a party cannot use its own breach as a basis for being relieved of its contractual obligations: Barclays Bank PLC v. Devonshire Trust, 2013 ONCA 494, at para. 149; Southcott Estates Inc. v. Toronto Catholic District School Board, 2010 ONCA 310, at para. 13, aff'd 2012 SCC 51.
Mitigation:
[49] A plaintiff making a claim for a contractual amount that is a fixed debt, as opposed to damages, has no duty to mitigate: Bowes v. Goss Power Products Ltd., 2012 ONCA 425, at paras. 41 and 48.
[50] In a lease claim for a fixed debt, the lessor has no duty to mitigate: Taggart (Gardiners) Corporation v. Qubit Systems Inc., 2017 ONSC 5011, at para. 30; CIBC v. Marko, 2017 ONSC 1113, at para. 43.
Analysis:
[51] Having considered the evidence adduced by these parties, I have concluded that there is no genuine issue requiring a trial in this matter.
[52] The evidentiary record is fulsome enough to allow for sufficient fact-finding to be conducted without the need for a trial, and the principles of law can appropriately be applied to the facts as determined.
[53] Thus, the issues at stake in this action can be resolved without the need for a trial and without the need for the use of any additional fact-finding powers as provided in rules 20.04 (21.1) and (2.2).
[54] The evidence adduced by the defendants in response to the summary judgment motion can be properly considered and dealt with by the application of the relevant principles of law and without any further evidence.
[55] Assuming that the defendants have adduced all of the evidence that would be introduced at trial, they have failed to demonstrate that they have a real chance of success at trial. They have failed to establish by their evidence that there is a triable issue requiring a trial.
[56] As this motion involves two distinct leases, and the facts and legal considerations surrounding these leases are different, I will deal with each lease separately.
Volvo Lease:
[57] The defendants have raised several issues with respect to the mechanical fitness of the Volvo as well as the alleged frustration of the lease following the accident in which the vehicle was involved in 2017, along with the plaintiff's alleged failure to mitigate its losses in respect of this vehicle.
[58] Clause 11 of the Volvo lease provided, in summary, that: (a) the lessee selected the vehicle from a supplier; (b) the lessor had no part in the selection of the vehicle; (c) the lessee had full knowledge of the vehicle and its condition; (d) the lessor made no representations or warranties regarding its condition; (e) the lessee accepted the vehicle on "as is" basis.
[59] The defendants have offered no evidence that would in any way contradict or modify the terms of clause 11 of the Volvo lease and, in fact, they have not in any way disputed these contractual terms.
[60] With respect to the nature of the rental payments under the Volvo lease, the contract provided at Schedule "D" as follows:
The undersigned acknowledges that the payments under the proposed lease or rental payments for the use of the equipment and are not payments of principal and interest. The undersigned further acknowledges that he/she cannot and should not rely on any interest rate representations made by the broker, the vendor, the Lessor, its agents or anyone on its behalf. The rental payments include a return on investment to Lessor and therefore the total payments are greater than the value of the equipment.
[61] The evidence is clear that at no time did the defendants elect to treat the alleged mechanical deficiencies and repair costs incurred as a repudiatory breach of the lease contract by the plaintiff. To the contrary, they continued to make rental payments for a period of time after the alleged mechanical problems arose.
[62] As to the property damage sustained by the Volvo in the motor vehicle accident and its effect on the contractual relationship between the plaintiff and the defendants, the defendants assert that the accident involving their vehicle and their subsequent failure to pay for the truck's repairs, which resulted in the alleged sale of the Volvo pursuant to the lien by the repairer, release them from any liability under the terms of the lease.
[63] No evidence was adduced by the defendants that the Volvo was in fact sold; however, the defendants were at all times obligated to maintain and repair the vehicle in accordance with clause 17 of the lease, whether with respect to maintenance and repair of the Volvo in the ordinary course or in respect of damage sustained in an accident. Clause 17 of the lease included the following terms:
- MAINTENANCE, REPAIR AND REPLACEMENT.
Lessees at their own expense will maintain the Equipment in good working order and condition, furnish all parts, accessories, maintenance, repair and other service necessary for such purpose.
Lessor may, at its sole discretion, make or pay for all repairs and replacements necessary to maintain the Equipment in good repair, including payment of liens that are placed against the Equipment for repair and or storage of the equipment.
[64] Contrary to the position asserted on behalf of the defendants, I find that the lease contract was not frustrated due to a supervening event in respect of which no provision had been made by the parties, such that the performance of the contract becomes radically different from that which was undertaken.
[65] Provision was expressly made by the parties to the lease that the lessees were to pay for any repairs and the lessor, at its discretion, could opt not to pay for any lien.
[66] Furthermore, parties in the position of the defendants cannot take advantage of or benefit from circumstances resulting from their own breach or wrongdoing. In other words, a party cannot use its own breach as a basis for being relieved of its contractual obligations: Barclays Bank PLC v. Devonshire Trust, supra.
[67] The submissions made on behalf of the defendants in the circumstances of this case would give rise to an absurd result whereby a party, such as the defendants, could breach their obligations to repair and maintain the leased truck and allow the repairer to exercise a lien over the truck for nonpayment of the repair costs, thereby allowing for the truck to be sold and resulting in the alleged frustration of the contract.
[68] Further, contrary to the submissions of the defendants, there is no contractual or equitable obligation on the part of the plaintiff to repossess the Volvo in order to avoid its sale pursuant to the lien registered by the repairer. The plaintiff, within the terms of the lease, was entitled to treat the contract as continuing and to require the defendants to continue lease rental payments.
[69] Given that the plaintiff is seeking payment of a fixed debt, as calculated within the terms of the Volvo lease, and not a sum in the form of damages connected with the value of the vehicle itself, the plaintiff had no obligation to take steps to mitigate any loss with respect to the value of the Volvo: Bowes v. Goss Power Products Ltd., supra; Taggart (Gardiners) Corporation v. Qubit Systems Inc., supra.
[70] Although not clearly articulated in either the defendant's statement of defence or the submissions made on the return of this motion, counsel for the defendants raised an issue with respect to a possibly intervening limitation period.
[71] As the position at law taken by the defendants was unclear, I requested both counsel to file brief supplementary submissions on whether any limitation period represented a viable defence to the plaintiff's motion for summary judgment.
[72] On several occasions, the Ontario Court of Appeal has considered circumstances where limitation periods had not been pleaded with respect to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, but counsel endeavored to raise limitation defences in oral submissions.
[73] In its decision in Singh v. Trump, 2016 ONCA 747, at paras. 131 – 132 the court stated:
This court has consistently held that "[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence": (citations omitted). In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party's pleading.
[74] In Abrahmovitz v. Berens, 2018 ONCA 252, at paras. 29 – 33, the court held that a motion judge had erred in finding a claim was statute barred by a limitation period that had not been pleaded.
[75] The defendants' sole plea with respect to a possible limitation defence is set out at paragraph 15 of their statement of defence, which reads as follows:
- It is submitted in the alternate if the plaintiffs plead and if this Court were to hold that the plaintiffs are entitled to the value of the truck post change of ownership then these defendants contend that the right to sue for loss of truck is lost to the plaintiff as the limitation to bring the action is lost to the plaintiff and therefore the action needs to be dismissed on that ground also.
[76] In the supplementary submissions requested by me, counsel for the defendants acknowledges that the limitation period defence as set out above would only apply in respect to a potential claim by the plaintiff for the loss of the value of the truck. Notably, the plaintiff does not seek damages with respect to the lost value of the truck, but rather, simply payment of the arrears of rent owing with respect to the Volvo through to the end of the lease.
[77] Thus, on the factual findings made, no viable limitation period defence has been asserted by the defendants.
[78] I have there concluded that the defendants are liable to the plaintiff for all the rent arrears as claimed on the Volvo lease.
Trailer Lease:
[79] As already noted above, the sole defence raised by the defendants is an alleged loss of equity in the trailer and a claim for relief from forfeiture. No limitation period defence has been asserted with respect to this lease contract.
[80] In clause 5 of the Trailer lease it is stated:
RENTAL PAYMENT AND ACKNOWLEDGEMENT
The Lessees acknowledge that the payments under this Lease Agreement are rental payments for the use of the Equipment, and not payments of principal and interest.
[81] Thus, on the terms of this lease contract, the defendants would have no equitable interest in the Trailer.
[82] The Trailer lease did provide a "Purchase Option"; however, the option date at the end of the 48 months was not exercised by the defendants, nor could it have been validly exercised, because the Trailer lease was in default as noted above.
[83] There is no forfeiture clause within the Trailer lease and the plaintiff does not seek forfeiture from the defendants but rather payment of the debt made up of the arrears of unpaid rent through to the end of the lease contract.
[84] Even if there was some entitlement on the part of the defendants to relief from forfeiture, such would only be available where the defendants had made diligent efforts to comply with the terms of the lease. Here the defendants simply failed to pay the monthly rent owing pursuant to the lease and as such they would not otherwise be entitled to relief from forfeiture in any event.
[85] For these reasons, I have concluded that the defendants are liable to the plaintiff for the rent arrears as claimed under the Trailer lease.
Conclusion
[86] In the result, judgment shall issue in favour of the plaintiff against the defendants as follows: (1) in respect of the Trailer lease in the sum of $40,612.77; (2) in respect of the Volvo lease in the sum of $75,870.95.
[87] The plaintiffs seek pre-and post judgment interest at the rate of 26.82% per year in respect of each judgment amount or alternatively, at interest rates pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43.
[88] As to the plaintiff's claim for pre-and post-judgment interest, the defendants in responding to the summary judgment motion simply stated in their submissions that the plaintiff's claim was excessive without specifically taking any issue with respect to the contractual interest being sought.
[89] The statutory pre-and post-judgment interest rates as provided for in the Courts of Justice Act, R.S.O. 1990, c. C.43 are significantly lower than the contractual rates claimed by the plaintiff. Given the difference in rates, consideration of the claim for interest is examined pursuant to section 130(1) of the Courts of Justice Act, where the court is afforded a broad discretion in the fixing of the applicable interest rates.
[90] In Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, the court held that in a breach of contract claim, a court was not bound by the statutory interest rates set out in the Courts of Justice Act and could order interest as specified in the contract between the parties. The court stated that "in the absence of more appropriate rates and methods of calculations," sections 128 and 129 may guide a court in awarding pre-and post-judgment interest: at paras 39 – 40. However, the court went on to reiterate that contract law is the servant of the parties and stated that the parties should be held to their agreement to obtain its intended benefit, absent overriding policy concerns.
[91] As there is no evidence or overriding policy considerations that would favour departing from the interest rates as agreed to by these parties in the two contracts, I have concluded that the contractual rates would apply both in respect of the plaintiff's entitlement to pre-and post-judgment interest owing on each of these contracts.
[92] Counsel for the plaintiff submitted schedules outlining the calculation of interest on the arrears owing in respect of each contract up to and including the end date of each contract. Notably, the interest is calculated upon the arrears exclusive of tax otherwise payable.
[93] As counsel for the defendants acknowledged, during his submissions, that the principal sum of the arrears amounts in respect of each contract were accurate, counsel for the plaintiff shall submit to counsel for the defendants a draft judgment in accordance with these reasons, including calculation of pre-judgment interest at the contractual rate and as well stating that post judgment interest shall run at the same rate. The draft judgment approved as to form and content by counsel for the defendants shall be submitted to me for signature.
[94] With respect to costs of this action and the summary judgment motion, counsel for the plaintiff shall serve and file submissions of no longer than three pages, double spaced, along with a bill of costs and any settlement offers served within 20 days from the date of release of these reasons. Counsel for the defendants shall serve and file costs submissions of a similar length within 20 days thereafter.
Daley, J.
Released: May 12, 2021
COURT FILE NO.: CV-20-529-00
DATE: 2021 05 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B.H.L. CAPITAL, A DIVISION OF BERNER HOLDINGS LTD.
Plaintiff
- and -
2280858 ONTARIO CORP., HAMEED BADRUDDIN, and FARHAT NASEEM HAMMED
Defendants
REASONS FOR DECISION
Daley, J.
Released: May 12, 2021