Court File and Parties

COURT FILE NO.: 20-CV-00648947-0000
DATE: 20210910 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Serla’s Group Inc., Plaintiff AND: 2184022 Ontario Inc., Defendant

BEFORE: Stewart J.

COUNSEL: Ronald G. Chapman, for the Plaintiff Patrick Di Monte, for the Defendant

HEARD: In Writing

Endorsement

[1] This is a motion brought by the Defendant for an order discharging a section 71 notice placed by the Plaintiff on property owned by the Defendant, and releasing to it the deposit of $50,000.00 held in trust by Di Monte and Di Monte LLP for what the Defendant maintains was an agreement to sell the property to the Plaintiff that was aborted due to what the Defendant describes as the Plaintiff’s inability to arrange suitable financing for the purchase by the deadline for doing so.

[2] This motion has been brought in writing. The Respondent Plaintiff opposes the granting of any relief as requested by the Defendant.

[3] I agree with the argument of the Plaintiff insofar as it relates to the appropriateness of seeking to determine the issues raised and the relief sought by the Defendant on a motion in writing. Although I fully appreciate the desire of the Defendant to dispose of the issues quickly and cheaply in the manner adopted, I am of the view that the order sought is one which ought to be argued and considered in open court where submissions may be heard and responded to, and where the presiding judge may ask questions to clarify the issues and to fully determine the objectives of the parties and the just outcome.

[4] There are also issues of credibility and matters of fact in dispute between the parties that render a determination of the motion in writing inappropriate. In particular, the Plaintiff maintains that it still has an agreement to purchase the property, which it describes as unique, and wishes to proceed to do so. The Plaintiff maintains that the Defendant failed to supply financial information as agreed which was the cause of its financing problem.

[5] No cross-examinations on the affidavits submitted have taken place, so these conflicting assertions of fact have not been tested.

[6] Accordingly, this motion is adjourned to be heard by a judge in open court. This may be done by means of a Zoom hearing if they wish.

[7] If either party is seeking costs, written submissions may be delivered to me within 10 days. Otherwise, costs are reserved to the judge hearing the motion.

Date: September 10, 2021