Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alumasafway Inc.
AND: Di Rocco Masonry Group Ltd.
BEFORE: Justice Chalmers
COUNSEL: C. Willson and K. Du Vernet for the Plaintiff
J. Maggisano for the Defendant
HEARD: In-writing
ENDORSEMENT
[1]
Background
The Plaintiff commenced an action against the Defendant by Statement of Claim issued on November 30, 2020. The parties settled the action on or about February 12, 2021, in the amount of $90,000 all-inclusive. The parties agreed that the settlement would be paid in four installments:
$15,000 by February 20, 2021;
$30,000 by March 20, 2021;
$30,000 by April 20, 2021; and
$15,000 by May 20, 2021.
2The parties also agreed that if one of the cheques does not clear, Plaintiff’s counsel is to notify the Defendant’s counsel of the default by e-mail. The Defendant is required to cure the default within five business days. If the Defendant fails to cure the default, the Defendant agrees to consent to judgment in the amount of $90,000, less any payments made, plus $10,000 in costs and post-judgment interest at the rate of 5% per annum.
3The cheque for the April 20, 2021 payment in the amount of $30,000 did not clear. On May 4, 2021, Plaintiff’s counsel advised the Defendant’s counsel by e-mail that the April 20, 2021 payment was in default.
4On May 18, 2021, the Defendant instructed the Plaintiff to not deposit the post-dated cheque for the May 20, 2021 payment in the amount of $15,000. On July 5, 2021, a cheque in the amount of $15,000 cleared, leaving an outstanding balance of $30,000.
5On July 28, 2021, the Defendant delivered two additional cheques in the amount of $15,000 each. The cheques were payable in August and September 2021. On September 13, 2021, the August payment in the amount of $15,000 failed to clear. On October 4, 2021, the September payment in the amount of $15,000 also failed to clear. On October 4, 2021, Plaintiff’s counsel e-mailed Defendant’s counsel and provided notice of the default. The Defendant did not cure the default.
[6]
The Motion
The Plaintiff brings this motion for judgment in the terms of the accepted offer, pursuant to R. 49.09. The motion came before Associate Justice La Horey on March 18, 2022. Counsel for the Defendant was not in attendance. The Associate Justice did not have jurisdiction to grant the relief sought and adjourned the motion sine die to be heard by a judge. On March 18, 2022, the matter was triaged by Justice Ramsay. She ordered that the motion is to proceed in writing the week of April 4, 2022. On March 21, 2022, Plaintiff’s counsel served the motion record, factum and supplementary affidavit which included the endorsements of Associate Justice La Horey and Justice Ramsay, by sending a copy of the material by e-mail to the Defendant’s counsel.
[7]
Analysis
It is necessary for the motion to be made on notice to the Defendant. It appears that the settlement was reached before the Defendant delivered a Notice of Intent to Defend or Statement of Defence. As a result, there is no formal lawyer of record for the Defendant, who could be served on behalf of the Defendant.
[8]
Disposition
I adjourn this motion to allow the Plaintiff to properly serve the motion materials on the Defendant. The Plaintiff is to serve the motion record, supplementary affidavit, factum and a copy of this endorsement on the Defendant pursuant to R. 16.01(4). The materials are to be served on the Defendant by August 19, 2022. If the Defendant fails to respond within 10 days of being served, the motion will proceed in writing the week of September 5, 2022. If the Defendant responds, the motion will proceed by way of an oral hearing. In those circumstances, the parties may request a case conference with me, to schedule the oral hearing.
9I remain seized of the matter.
Date: August 10, 2022