COURT FILE NO.: CV-19-00626227-0000
DATE: 20211228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NISSAN CANADA FINANCIAL SERVICES INC.
Plaintiff
– and –
DEXTER G. WALSH and ALTIN WALSH
Defendants
Gregory W. Bowden, lawyer for the Plaintiff
Self-represented and acting in person
HEARD: In Writing
ENDORSEMENT
DIAMOND J.:
[1] The plaintiff seeks an Order pursuant to Rule 54.02 of the Rules of Civil Procedure directing a reference to determine all issues relating to the conduct of the sale of the property municipality known as 4 Prairie Star Court, Brampton, Ontario, L6R 3C9 (“the property”). The proposed reference would be a prerequisite to seeking an order for sale.
[2] As part of the primary relief sought on this motion, the plaintiff also seeks an Order permitting the parties to apply to this Court for further directions as needed, together with an Order directing the referee to report the findings made at any reference back to the Court.
[3] The defendants Dexter G. Walsh (“Dexter”) and Altin Walsh (“Altin”) are husband and wife. The property is owned by Altin solely, although both Dexter and Altin reside together at the property.
[4] The facts giving rise to this motion are not that controversial. Dexter entered into a car loan agreement with the plaintiff, and subsequently defaulted upon that agreement. In response to that default, the plaintiff commenced this proceeding seeking an order compelling Dexter to release the vehicle financed by the plaintiff. At the time, the vehicle was located inside the garage of the property.
[5] By ex parte order obtained on November 22, 2019 from Justice Chalmers (the “Chalmers Order”), the plaintiff was permitted to attend the property for the purposes of repossessing the vehicle. The plaintiff was successful in repossessing the vehicle in December 2019. The plaintiff subsequently sought an Order from the Court permitting it to sell the vehicle, but that request was denied on two occasions.
[6] The defendants have never sought to challenge, vary or set aside the Chalmers Order, and they have also never served or filed a Statement of Defence in this proceeding. At one point, the defendants retained counsel, but their lawyer did not take any of the above-mentioned steps and instead concentrated upon pursuing a potential resolution.
[7] As a result, the plaintiff ultimately obtained a default judgment dated April 12, 2021. The judgment requires Dexter to pay the plaintiff the sum of $48,725.98. Both Dexter and Altin were ordered to pay the plaintiff its costs of the action fixed in the amount of $1,240.99 on a joint and several basis. As such, both Dexter and Altin are judgment debtors.
[8] Pursuant to the default judgment, the plaintiff obtained writs of seizure and sale issued and filed against both Dexter and Altin.
[9] The vehicle has remained in storage for approximately 18 months. It has obviously depreciated in value during that time, and the plaintiff has incurred continuous storage fees.
[10] Rather than proceeding with a sheriff’s sale of the property, the plaintiff seeks an order permitting a judicial sale (which is why it seeks a reference as set out above), and provided evidence of several reasons for its position:
• At a sheriff’s sale, the property itself is not for sale. It is Altin’s equity in the property that is for sale, and thus any purchaser must take title subject to any encumbrances including mortgages, taxes or outstanding liens.
• A sheriff’s sale does not particularly generate a “good price” at a public auction; and,
• Unlike a sheriff’s sale, a judicial sale permits the Court to take the defendants’ circumstances into account.
[11] In response to this motion, the defendants filed the affidavit of Dexter seeking an adjournment of the motion and a scheduling of a case conference, together with an Order staying the plaintiff’s judgment and discharging its writs of seizure and sale. In support of the defendants’ position, Dexter’s states that Altin was never privy to the purchase of the vehicle nor the loan agreement, and challenges the plaintiff’s accounting as not having taken various payments allegedly made by Dexter into account.
[12] Dexter goes on to claim that he was not in default when the vehicle was repossessed, and therefore there was “no basis” for obtaining the Chalmers Order. Dexter complains that he was not given notice of that motion. That motion took place over two years ago, and as stated above the default judgment was not obtained until mid-April 2021.
[13] There is no dispute that Dexter challenges the amount of the plaintiff’s claim, and whether the plaintiff was entitled to its judgment. That said, both defendants have not only been noted in default, but are now subject to a default judgment and writs of seizure and sale. Pursuant to Rule 19.02(1), any defendant who has been noted in default may not take any steps in a proceeding other than bringing a motion to set aside the noting of default or any judgment obtained by reason of the default. There is no evidence in Dexter’s affidavit explaining why such a step was never pursued.
[14] For Dexter to claim that the plaintiff’s motion is “premature and should be adjourned to a later date” seems rather ironic given the fact that the plaintiff waited more than 18 months for the defendants to take a step in the proceeding, be it setting aside the Chalmers Order or serving and filing a Statement of Defence.
[15] The issue for this Court to thus determine is whether the relief sought is appropriate on the facts of this case. The plaintiff relies upon the decision of Justice Broad in Canaccede International Acquisitions Ltd. v. Abdullah 2015 ONSC 5553 and in particular the following excerpt:
“In this case, none of the respondents and none of the encumbrancers appeared to oppose the relief sought by the applicant. Indeed, as indicated above, the respondent in one of the files consented to the order sought. The proposed two-step process for judicially supervised sales of the subject properties preserves the right of the respondents and the encumbrancers to show cause on a case-specific basis why a judicial sale should not proceed. In the event that sales of the properties are ordered, the process will allow for the "realistic and active marketing of the properties" (utilizing the words of Justice Burnyeat in Instafund [at para. 7]), which should, in turn, result in higher sale prices, to the potential benefit of all interested parties.”
[16] There is no doubt that this this Court has jurisdiction to make the order sought by the plaintiff. I agree with the plaintiff that there are advantages to all parties in ordering the judicial sale and directing the requested reference. There is no real contrary evidence from Dexter other than his request that the plaintiff’s enforcement efforts be stalled and the plaintiff “not be allowed” to sell the property registered solely in Altin’s name.
[17] The judicial sale contemplates a fair and equitable process that will provide the defendants with a voice should they choose to participate. For those reasons, I am content to grant the relief sought by the plaintiff as set out in its Amended Simplified Procedure Motion Form.
[18] However, I am prepared to afford the defendants one last chance to set aside the default judgment and writs of seizure and sale. I am prepared to stay enforcement of my order for sixty days to allow the defendants to take whatever steps they see fit to respond to the concerns raised in this Endorsement.
[19] The plaintiff is entitled to its costs of this motion on a partial indemnity basis, and I award the plaintiff its costs of the motion fixed in the amount all-inclusive amount of $4,000.00 payable forthwith.
[20] If necessary, I am prepared to sign the formal Order should same prove necessary after counsel for the plaintiff prepares and delivers a draft Order to the defendants.
Diamond J.
Released: December 28, 2021
COURT FILE NO.: CV-19-00626227-0000
DATE: 20211228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NISSAN CANADA FINANCIAL SERVICES INC.
Plaintiff
– and –
DEXTER G. WALSH and ALTIN WALSH
Defendants
ENDORSEMENT
Mr. Justice Diamond
Released: December 28, 2021