COURT FILE NO.: CV-20-00650693

DATE: 20220913

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

HEARD: In-writing

ENDORSEMENT

Overview

[1] By endorsement dated August 9, 2022, I adjourned the Plaintiff’s motion for Judgment to allow the Plaintiff to properly serve the Defendant. On August 31, 2022, the Plaintiff filed the Affidavit of Ashley Lobo sworn August 23, 2022. She deposed that on August 12, 2022, she mailed a copy of the motion material to the Defendant’s registered address as set out in the Province of Ontario Corporate Profile Report. I am satisfied that the motion material was properly served on the Defendant. The Defendant failed to respond to the motion within the time limits set out in my endorsement.

Background Facts

[2] As noted in my earlier endorsement, the relevant facts are as follows:

(1) 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.

(2) The 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.

(3) The 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.

(4) On 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.

(5) On 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.

Analysis

[3] The Plaintiff brings this motion for judgment in the terms of the accepted offer. Pursuant to R. 49.09 where a party to an accepted Offer to Settle fails to comply with the terms of the offer, the other party may make a motion to a judge for judgment in the terms of the accepted offer.

[4] I am satisfied that the parties had agreed to settle the action for $90,000 all inclusive. I am also satisfied that the parties agreed that if the Defendant was in default, the Defendant agreed to consent to judgment in the full amount less any payments made, plus $10,000 in costs and post-judgment interest at the rate of 5% per annum.

[5] The Defendant made partial payment of the settlement amount. The amount that remains outstanding is $30,000. I find that the Plaintiff is entitled to Judgment in the amount of $30,000, plus costs of $10,000. The post-judgment interest rate is 5% per annum.

Disposition

[6] Order to go in accordance with the draft order filed and signed by me.

Date: September 13, 2022