Court File and Parties
COURT FILE NO.: CV-20-00652139-0000 DATE: 20210923 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: WADEKAR SEECHARRAN an GAITREE SINGH Plaintiffs AND: RAJMOTIE VIOLET SEECHARAN and BHO J. SEECHARAN Defendants
BEFORE: Mr. Justice Chalmers COUNSEL: S. Kabir, for the Plaintiffs HEARD: September 22, 2021 In Writing
ENDORSEMENT
1For convenience and not out of disrespect, the parties will be referred to in this endorsement by their first names.
[2]
Background
The Plaintiffs bring this action seeking damages for breach of trust, unjust enrichment or quantum meruit. It is alleged that in June 2002, Wadekar Seecharran’s father died leaving him an inheritance of about $50,000. The inheritance was left with the Defendant, Bhoj Seecharan. Bhoj is Wadekar’s uncle and is a practicing accountant. In June 2003, Bhoj approached Wadekar and advised him that a property located next to Bhoj’s office was for sale. He recommended that Wadekar use the inheritance money and some of his savings to purchase the property. Bhoj stated that he would purchase the property in his name but would hold the property in trust for Wadekar.
3Wadekar decided to purchase the property. Before the purchase, the lawyer retained by Bhoj prepared a Declaration of Trust. On August 15, 2003, the Declaration was signed by Rajmotie Seecharan; Bhoj’s spouse. The Declaration was signed in the presence of Wadekar and the lawyer.
4The property was purchased on August 21, 2003 for $225,000. Title was taken in the name of Rajmotie. The down payment in the amount of $56,250 was paid by Wadekar. After the purchase, Bhoj managed all financial affairs related to the property. He rented out the property and told Wadekar that he used the rent to pay the mortgage, property tax and utility bills.
5In June 2009, Wadekar moved into the property with his common-law spouse Gaitree Singh. On October 6, 2010, Bhoj sold his office which was adjacent to the property and began to conduct his accounting business out of the basement of the property. He agreed to pay rent to Wadekar, in the amount of $700, however the Plaintiffs state that no rent was paid. Bhoj moved out of the property in March 2020. The Plaintiffs take the position that Bhoj owes back rent from October 2010 to March 2020 in the amount of $79,100.
6The Plaintiffs decided to have title in the property transferred to their names. In May 2019, they learned that Rajmotie had remortgaged the property on August 8, 2017 for $375,000. The mortgage was without Wadekar’s knowledge or approval. Wadekar paid the amount outstanding on the mortgage and had the property transferred to him and Gaitree.
7The Plaintiffs issued the action on November 27, 2020. The Claim was served on the Defendants on December 7, 2020. The Defendants delivered a Notice of Intent to Defend on December 21, 2020. Through their solicitor, the Defendants requested an extension until January 15, 2021 to serve their Statement of Defence. The Plaintiffs agreed to the extension. The Statement of Defence was not delivered. On March 3, 2021, the Defendants were noted in default.
[8]
Analysis
The Plaintiffs bring this motion in writing for Default Judgment. It is not clear from the material filed in support of the Motion that the Defendants were served with the Motion Record.
9Rule 19.02 provides that a defendant who has been noted in default is not entitled to notice of any step in an action. However, Rule 19.02(3) provides that the judge has discretion to “order otherwise” and require service on a defendant who has been noted in default. The “far better practice” is to serve the default motion materials on the defendant: Elekta Ltd. v. Rodkin, 2012 ONSC 2062, at para. 10. In this way, the defendant knows not just that a claim has been issued but also that the claim is about to be considered by the court for the purpose of issuing judgment: Casa Manila Inc. v. Iannuccilli, 2018 ONSC 7083, at para. 15.
[10]
Disposition
I exercise my discretion under Rule 19.02(3) and order the Plaintiffs to serve the Defendants with the Motion Record along with a copy of this endorsement. Service is to be made within 10 days of the date of this endorsement. Following service of the Motion Record, the Plaintiffs will file the Affidavit of Service with the court. If the Defendants intend to oppose the motion, they are required to advise the Plaintiffs of their position within 10 days of being served.
11I adjourn this motion for 30 days. I remain seized.
DATE: September 23, 2021