COURT LOCATION: Thunder Bay, ON
COURT FILE NO.: CV-19-0178-00
DATE: 2021-06-07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 2133048 Ontario Limited o/a Rockhouse v. 1188640 Ontario Ltd.
HEARD: June 7, 2021
BEFORE: Regional Senior Justice B. Warkentin
COUNSEL: Nathan Wainwright, for the Plaintiff
Michael Cupello, for the Defendant
E N D O R S E M E N T
[1] On January 13, 2020, Justice H. Pierce released reasons on a motion in which she made the following orders at paragraphs 25 and 26 of her reasons:
Accordingly, an interlocutory order will issue for the recovery of the plaintiff's personal property itemized in the affidavit of Anthony Di Paulo sworn May 1. 2019, provided the personal property has not been installed as a fixture to the premises. The plaintiff shall recover its chattels within thirty days from the release of these reasons at a date and time to be agreed upon by the parties. If there are issues arising involving the execution of this order, I may be spoken to.
As counsel agreed during argument, costs of this motion are fixed at $4,000.00, payable by the defendant to the plaintiff within thirty days.
[2] The defendant has not complied with the order to permit the plaintiff to recover the personal property, nor has the defendant paid the costs of $4,000.00 that were payable on or before February 13, 2021.
[3] The motion before me today brought by the plaintiff was twofold. The first was to strike the defendant’s statement of defence and counterclaim. The second was seeking directions on the failure by the defendant to comply with Justice Pierce’s orders of January 13, 2020.
[4] Based upon the submissions of counsel on the issue of directions regarding the plaintiff’s possessions, I make the following orders:
a) On or before June 14, 2021, counsel for the defendant shall provide counsel for the plaintiff with a minimum of 3 dates and times for the plaintiff to attend at the subject property to retrieve his personal possessions. Those dates and times shall be prior to June 30, 2021.
b) Both parties shall have an independent third party attend the property with them at the agreed upon time.
c) On or before June 14, 2021, the defendant shall provide the name of its third party designate who will attend the property at the time scheduled for the removal of the plaintiff’s possession.
d) The purpose of having independent third parties attend the premises with the plaintiff and defendant is to prevent conflict and to provide witness to any issues in dispute.
e) Prior to the scheduled date, the defendant shall clearly mark any of the items that the defendant alleges are “fixtures”.
f) The plaintiff and its designate shall be provided unrestricted access to the premises to retrieve the plaintiff’s possessions and is entitled to photograph or otherwise record the status of the premises, as it pertains to the plaintiff’s possessions, or to record any items that are in dispute.
g) The plaintiff may not remove any of the items that are identified as “fixtures” but may return to court to argue why these items should be returned to the plaintiff or make any other claim regarding these items.
h) Unless a different schedule is agreed to by the parties, should the defendant fail to comply with the terms of the orders made in this section, the plaintiff may return his motion to strike the defendant’s pleadings on the basis of the defendant’s failure to comply with this order and the order of Justice Pierce.
i) Counsel for the defendant was advised that failure to comply with these terms would be sufficient grounds to grant the plaintiff’s motion to strike.
j) Costs of the plaintiff’s motion regarding directions for retrieving his personal possession are awarded to the plaintiff. The quantum is deferred to a later hearing.
[5] With respect to the motion to strike the defendant’s statement of defence and counterclaim, I make the following orders:
a) The defendant shall have until June 30, 2021 to respond to the plaintiff’s motion to strike.
b) That motion and any part of the motion for directions that requires the court’s intervention shall be scheduled before me, if possible, for a half day.
c) The defendant shall serve and file a factum. The plaintiff may serve and file a supplementary factum and responding affidavit evidence, if required.
d) In addition to the issues raised in the current motion to strike, the motion may also include the fact the defendant has failed to pay the costs ordered by Justice Pierce within the 30 days of her order (by February 13, 2020).
[6] The balance of this motion is placed on the July 8, 2021 regional motions day to be spoken to as it pertains to the defendant’s compliance with the terms of this order, if needed. That date shall be vacated if the parties have obtained a hearing date for the continuation of this motion.
__________
The Honourable Justice B. R. Warkentin, R.S.J.
Released: June 7, 2021
COURT FILE NO.: CV-19-0178-00
DATE: 2021-06-07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 2133048 Ontario Limited o/a Rockhouse v. 1188640 Ontario Ltd.
BEFORE: B. Warkentin R.S.J.
COUNSEL: Nathan Wainwright, for the Plaintiff
Michael Cupello, for the Defendant
ENDORSEMENT
B. Warkentin R.S.J.
DATE: June 7, 2021