COURT FILE NO.: CV-18-78306
DATE: 2022/01/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Vasil Trayanov and Olia Stantcheva
Plaintiffs/Respondents
– and –
Icetrading Inc. and VoLundur Thorbjornsson
Defendants/Moving parties
Joshua Vickery for Plaintiffs/Respondents
Taayo Simmonds for Defendants/Moving parties
HEARD: In writing
decision on motion to set aside noting in default
Justice Sally Gomery
[1] The defendants, Icetrading Inc. and its sole shareholder, Volundur Thorbjornsson, ask the Court, pursuant to r. 19.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to set aside the noting of their default to defend, so that they can file a statement of defence and counterclaim in response to this action.
[2] For the reasons that follow, the motion is dismissed.
Background to the action
[3] The plaintiffs, Vasil Trayanov and Olia Stantcheva, operate Ottawa Granite Art from a building located at 8023 Highway 15 in Carleton Place. Icetrading Inc. acquired the property on which the building is situated in July 2016.
[4] On September 16, 2016, the parties entered into an agreement whereby the defendants agreed to sell the plaintiffs the building as a unit of a condominium project they would develop on the property (the “Agreement”). In the Agreement, the defendants engaged to obtain the necessary regulatory approvals to sever the property and create a condominium corporation, and to sell a unit consisting of the building to the plaintiffs. The Agreement also provided that the defendants would install a septic system for the building and hook up the units to a central natural gas system. The plaintiffs would pay $275,000 for their unit, including a $75,000 deposit paid on execution of the Agreement. They also agreed to pay $1333.33 per month to the defendants for the first year after the Agreement was signed, or until the conversion to a condominium took effect and the unit was transferred to them, whichever came first. If the conversion did not take place within a year, the monthly payments would be credited to the balance of the purchase price payable by the plaintiffs.
[5] The Agreement provided that, if the property was not converted to the condominium by September 30, 2018, the plaintiffs would be entitled to demand a return of their $75,000 deposit, in which case they would have to vacate the Premises within 30 days.
[6] The property was not converted into a condominium by the September 30, 2018 deadline. According to Mr. Thorbjornsson, he was not able to obtain the necessary regulatory approvals. According to the plaintiffs, he did not make any meaningful effort to fulfill his obligations under the Agreement.
[7] The plaintiffs did not demand a return of their deposit on the second anniversary of the Agreement. They have instead remained in the building, while paying the monthly charge set out in the Agreement as well as some common charges. In their lawsuit against the defendants issued on November 1st, 2018, they seek an equitable lien over the property or, in the alternative, $300,000 in damages for breach of contract or breach of trust, $100,000 in general damages, and other relief.
Events leading up to the noting in default
[8] In a letter delivered when the statement of claim was served on the defendants on November 9, 2018, the plaintiffs’ counsel advised that his clients would be “strictly enforcing” the procedural deadlines in the Rules of Civil Procedure and asked the defendants to ensure that their statement of defence was served within the prescribed timeframe.
[9] On November 15, 2018, the plaintiffs’ counsel sent another letter to Mr. Thorbjornsson, saying that they intended to bring a motion authorizing the registration of a certificate of pending litigation (CPL) against the property and the deposit of the plaintiffs’ monthly payments into court until the action was resolved. The letter asked whether the motion would be opposed. According to an email sent by the plaintiffs’ counsel to his clients on November 20, 2018, Mr. Thorbjornsson refused to agree to the proposed CPL.
[10] The parties met two days later, together with the plaintiffs’ counsel of record, Joshua Vickery. The discussion at this meeting was described in a November 22, 2018 email sent by Mr. Vickery to Mr. Thorbjornsson. They talked about how the plaintiffs’ putative interest in the property could be formally preserved, given the defendants’ ongoing resistance to a CPL. Mr. Thorbjornsson undertook to advise, within a couple of weeks, whether he was retaining a lawyer to assist with the municipal approval process. In the meantime, Mr. Vickery invited him to provide him with his draft severance application.
[11] On December 7, 2018, Mr. Vickery followed up with Mr. Thorbjornsson. Mr. Thorbjornsson indicated that he had hired a condominium lawyer and expected that the municipal approval process would take four to six months to complete. In the meantime, he said that he was trying to put together documents for delivery to the plaintiffs. Mr. Trayanov says that no documents were ever delivered. This evidence is corroborated by email correspondence from Mr. Vickery to Mr. Thorbjornsson in September 2019.
[12] In his affidavit evidence, Mr. Thorbjornsson states that he spoke often with the plaintiffs about resolving their dispute after the lawsuit was served. He has produced, in support, text messages and heavily redacted emails between the parties at various times in 2019, and again in October 2020. Although Mr. Trayanov says that he refused to have any substantive discussions with Mr. Thorbjornsson without his lawyer present, these communications and other evidence suggests that there were some direct conversations between the parties about resolving the dispute.
[13] On August 21, 2019, Mr. Vickery emailed Mr. Thorbjornsson to ask if he had retained litigation counsel to respond to the plaintiffs’ motion for a CPL, which by now had been served on the defendants. He received no response. Mr. Vickery sent a further email on September 17, 2019, confirming that the motion would proceed on October 29, 2019. Mr. Thorbjornsson then responded that: “This is the first I see of this, I have been negotiating with your client directly and did not think you were still involved.” As noted by Mr. Vickery in his response, this statement was inaccurate as Mr. Thorbjornsson had already been served with the CPL motion.
[14] Mr. Vickery did not demand a statement of defence from the defendants in his September 17 email, nor did he warn Mr. Thorbjornsson that he would note them in default if they failed to do so. A week later, however, Mr. Trayanov instructed Mr. Vickery to note the defendants in default after they failed to respond to a request to account for the monthly payments that the plaintiffs had been making pursuant to the Agreement. At 5:18 p.m. on September 26, 2019, Mr. Vickery sent an email to Mr. Thorbjornsson warning him that he had these instructions. He did not receive any response. He asked the Court to note the defendants in default the next day.
Events following the noting in default
[15] On October 29, 2019, the plaintiffs presented their motion for a CPL, payment into court of their monthly payments pursuant to the Agreement, and production of records relating to the defendants’ application for approval for the proposed condominium project. The defendants were not represented by a lawyer at the motion. Justice Labrosse ordered the CPL on consent. He also ordered the defendants to provide disclosure of their application made to sever, and any correspondence with the local municipality about the application, by November 28, 2019. The plaintiffs’ request to deposit their monthly payments into court was adjourned to a later date.
[16] On November 18, 2019, Mr. Vickery wrote to Mr. Thorbjornsson to remind him of the upcoming deadline set by the court for the defendants’ disclosure of documents. He also strongly recommended that he consult a lawyer. Mr. Thorbjornsson did not reply to this letter.
[17] On November 29, 2019, the defendants delivered some records to the defendants. The records did not include the severance application that Justice Labrosse had ordered them to produce. In an email to Mr. Vickery the same day, Mr. Thorbjornsson admitted that the defendants had in fact never submitted such an application. This had obviously not been disclosed to either the plaintiffs or to Justice Labrosse during the October hearing. The records delivered did, on the other hand, include a letter from the Ministry of Transportation with respect to the defendants’ proposal to sever the property. This was unexpected since, according to a letter from Mr. Vickery sent on receipt of the documents, Mr. Thorbjornsson had denied that such correspondence existed at the hearing. Mr. Vickery again recommended that the defendants seek legal advice.
[18] On Monday, February 10, 2020, the parties re-attended before Justice Labrosse to argue the balance of the plaintiffs’ motion. This hearing was on short notice; the date was offered to the parties only a week earlier, when Justice Labrosse’s schedule opened up suddenly. The defendants were represented at the hearing by Mr. Thorbjornsson’s real estate solicitor, Kenneth Bennett. Mr. Bennett advised the judge that he had been consulted about the litigation for the first time on Friday, February 7, 2020, and had not really had time to prepare. He sought a 30-day adjournment, which Justice Labrosse declined to grant. Mr. Bennett also advised the court that the plaintiffs were in default of their February 1st, 2020 payment, but suggested that a settlement of the dispute might be in sight.
[19] During this hearing, Mr. Vickery mentioned that the defendants had not yet produced a defence and had been noted in default. He told Justice Labrosse that: “it’s not a hill I’m going to die on, but I’m not convinced they’re even entitled to participate in this proceeding”. There was no other discussion of the noting in default.
[20] In his February 10, 2020 endorsement, Justice Labrosse directed that, if the parties were unable to resolve their dispute, the defendants would have until March 30, 2020 to file a statement of defence. He ordered that the plaintiffs’ ongoing payments could be made into court as of March 1st, 2020. He awarded the plaintiffs their partial indemnity costs on the motion based on the plaintiffs’ success in obtaining all of the relief they had requested and the defendants’ failure to keep the matter moving forward.
[21] On June 22, 2020, Mr. Simmonds phoned Mr. Vickery to tell him that he had been retained by the defendants. They spoke again on June 30, 2020. According to an affidavit sworn by Mr. Simmonds’ law clerk, during this call they discussed whether the plaintiffs would consent to the defendants’ delivery of their statement of defence and counterclaim. Following the call, Mr. Vickery sent an email to Mr. Simmonds saying that he would “seek confirmation of my instructions with respect to the filing of your clients’ defence”. After Mr. Simmonds acknowledged receipt of this message, Mr. Vickery sent a second email, stating: “I noticed that the Court’s suspension of filing deadlines is retroactive to March 16, 2020. Are you sure that our client’s consent is necessary for the filing of your defence?” According to Mr. Trayanov’s affidavit, Mr. Simmonds did not respond to this email.
[22] On July 3, 2020, Mr. Vickery was served with the defendants’ statement of defence and crossclaim. He told Mr Trayanov that he assumed that this meant that Mr. Simmonds had obtained confirmation that the plaintiffs’ consent was not needed to set aside the noting in default. Mr. Vickery therefore acknowledged receipt of the pleading and advised Mr. Simmonds that he would deliver the plaintiffs’ defence to the counterclaim as soon as possible. In the weeks that followed, they continued to discuss the scheduling of steps in connection with the defendants’ proposed summary judgment motion.
[23] In early August, the parties learned that the civil counter at the Ottawa Court had rejected the filing of the statement of defence and counterclaim because the defendants had not complied with the March 30, 2020 deadline ordered by Justice Labrosse. When Mr. Simmonds’ law clerk then asked Mr. Vickery for his written consent for the late filing, Mr. Vickery refused.
[24] On August 26, 2020, the defendants served a motion to set aside the noting in default. In this same notice of motion, they asked the court to grant summary judgment in in the action in their favour. A case conference was ordered to fix a date for a hearing of the motion to set aside, and to determine whether a motion for summary judgment should be scheduled.
[25] At the September 30, 2020 case conference before me, the defendants took the position that their motion to set aside was a foregone conclusion because, through their actions, the plaintiffs had implicitly consented to permit the service and filing of a statement of defence. I rejected this submission based on the materials then before me and concluded that the defendants were required to obtain the Court’s leave before taking any other step in the litigation.
[26] The adjudication of this motion was unfortunately delayed by many months as the result of an administrative error. At the case conference, the parties consented to having this motion heard in writing, and I gave them leave to proceed on this basis. Unfortunately, my case conference endorsement was not forwarded to the judge to whom the motion materials were submitted once they were filed, and he declined to hear the motion in writing on the basis that it was contested. The motion remained in limbo until Mr. Simmonds followed up last week and the civil motions office contacted me for directions on how to proceed. I agreed at that time to be seized with the motion.
Analysis
Is the noting in default still in place?
[27] Further to r. 19.02 (1)(b), a defendant who has been noted in default “shall not deliver a statement of defence or take any other step in the action, other than a motion to set aside the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent of the plaintiff”. The defendants in this case say that both exceptions apply here, because Labrosse J. granted the defendants leave to file a defence, and the plaintiffs consented to service of their statement of defence and counterclaim.
[28] The noting in default was lifted by Labrosse J. on February 10, 2020 so that the defendants could file a statement of defence, subject to the condition that they do so by March 30, 2020. When the defendants failed to meet this deadline, the plaintiffs did not consent to extend it. The noting in default therefore remains in effect, unless this Court lifts it on this motion.
[29] As the transcript of the February 2020 hearing reveals, the plaintiffs’ counsel advised Justice Labrosse that the defendants had been noted in default. In granting the defendants leave to file a statement of defence despite this, Labrosse J. implicitly exercised his discretion under r. 19.03(1), which provides that a noting of default “may be set aside by the court on such terms as are just”.
[30] Although the defendants did not comply with this deadline, they take the position that the plaintiffs agreed to waive their non-compliance in early July 2020 when their lawyer acknowledged receipt of the statement of defence and counterclaim and discussed scheduling of next steps with the defendants’ lawyer. Further to r. 19.03(2), where “a defendant delivers a statement of defence with the consent of the plaintiff under clause 19.02 (1) (b), the noting of default against the defendant shall be deemed to have been set aside”.
[31] As I found in my endorsement of the September 2020 case conference, the plaintiffs did not waive the defendants’ non-compliance with the March 30 deadline. The further materials filed in support of this motion reinforce this finding. When Mr. Simmonds and Mr. Vickery talked in late June 2020, I infer that Mr. Simmonds himself believed that he needed the plaintiffs’ consent to file the statement of defence. This is why Mr. Vickery followed up with an email saying he would seek his clients’ instructions on the point. Neither lawyer was sure, however, whether the deadline in Labrosse J.’s order was automatically extended as a result of the suspension of limitations put in place at the outset of the COVID-19 pandemic. When he was served a few days later with the statement of defence and counterclaim, Mr. Vickery assumed that Mr. Simmonds had obtained confirmation that the plaintiffs’ consent to a late filing was not, in fact, required. It was only in early August that he learned differently.
[32] In his affidavit, Mr. Trayanov states unequivocally that he never consented to waive the defendants’ failure to comply with the March 30, 2020 deadline. When it became clear that the plaintiffs’ consent was necessary notwithstanding the suspension of limitations, they refused to provide it. I reject the argument that Mr. Vickery’s assumption about the state of affairs in early July 2020, or his acknowledgment to defence counsel that he received the pleading sent to him, meant that the plaintiffs waived their right to rely on the noting in default.
Should I exercise my discretion to set aside the noting in default?
[33] In Intact Insurance Company v. Kisel, 2015 ONCA 205, at para. 13, the Court of Appeal set out the relevant factors on a motion to set aside a noting in default:
When exercising its discretion to set aside a noting of default, a court should assess "the context and factual situation" of the case… . It should particularly consider such factors as the behaviour of the plaintiff and the defendant; the length of the defendant's delay; the reasons for the delay; and the complexity and value of the claim. These factors are not exhaustive. (…) Some decisions have also considered whether setting aside the noting of default would prejudice a party relying on it… . Only in extreme circumstances, however, should the court require a defendant who has been noted in default to demonstrate an arguable defence on the merits… . [Citations omitted.]
[34] I must accordingly consider:
- The defendants’ behaviour;
- The plaintiffs’ behaviour;
- The length of the defendants’ delay;
- The reasons for the delay;
- The complexity and value of the claim; and
- Any other relevant factor.
The defendants’ behaviour
[35] Mr. Thorbjornsson’s actions suggest that, at least until recently, he has not taken this litigation very seriously.
[36] First, he did not take any steps over 18 months to retain defence counsel, even though his company is presumptively required to be represented by a lawyer further to r. 15.01(2), and even though the plaintiffs’ counsel repeatedly recommended that he seek legal advice. According to Mr. Thorbjornsson’s affidavit, he owns about thirty residential and commercial properties, either directly or through companies he controls. He is not an unsophisticated party. It is interesting that, in his affidavit, Mr. Thorbjornsson says he did not think that the plaintiffs could seek a CPL in October 2019 because he was unrepresented and because of his ongoing discussions with the plaintiffs. This suggests to me that Mr. Thorbjornsson’s decision not to retain counsel was strategic or, at the very least, convenient. In any event, Mr. Vickery’s email to him at the time left no doubt that the plaintiffs intended to proceed with the CPL motion, notwithstanding any ongoing settlement discussions between the parties. Knowing this, Mr. Thorbjornsson chose to remain unrepresented at the October 2019 hearing. When the motion was continued in February, Mr. Thorbjornsson appeared with his ungowned real estate solicitor, who told the court that Mr. Thorbjornsson had consulted him about the action just before the weekend. At the hearing, Mr. Bennett said he was not prepared and sought an adjournment.
[37] Mr. Thorbjornsson appointed litigation counsel of record only in June 2020. He blames the COVID-19 pandemic for difficulties in finding a lawyer in late March, April and May 2020. He has provided no explanation for his failure to retain counsel prior to this time.
[38] Second, Mr. Thorbjornsson has failed to comply with his disclosure obligations in a timely way. In Mr. Vickery’s September 17, 2019 email, he noted that Mr. Thorbjornsson had promised ten months earlier that he would deliver documents relating to his severance application, but that he had failed to do so. When the defendants were ordered by Labrosse J. to produce records in October 2019, they missed the deadline to do so and then delivered some documents they had earlier denied existed (the correspondence with the Minister of Finance), while admitting that they did not have other records that the plaintiffs, and the Court, were led to believe the defendants did have (the severance application that the defendants had supposedly prepared pursuant to the Agreement).
[39] Third, Mr. Thorbjornsson did not comply with the February 2020 order requiring him to file his defence by March 30, 2020.
[40] Finally, I agree with the plaintiffs that Mr. Thorbjornsson has repeatedly misled the court. As already noted, he failed to tell Justice Labrosse at the October 2019 hearing that the documents he was being ordered to produce simply did not exist, and that he had other documents which he had denied having. During the February 2020 hearing, the defendants’ solicitor represented, presumably based on information provided by Mr. Thorbjornsson, that the plaintiffs had defaulted on their last monthly payment to him. As shown by records produced by Mr. Trayanov on this motion, this was untrue. In September 2020, Mr. Thorbjornsson filed an affidavit for use at the case conference before me, in which stated that he represented himself at the February hearing. This was also untrue. As the transcript shows, he and his company were represented by Mr. Bennett.
The plaintiffs’ behaviour
[41] The defendants argue that, based on their conduct, the plaintiffs are poorly positioned to object to a further delay to require a statement of defence. They rely on the plaintiffs’ participation in settlement negotiations and their failure to object to service of the statement of defence in July 2020.
[42] I have already dealt with the second argument. The plaintiffs did not immediately object to late service because their lawyer assumed that the March 30, 2020 deadline had been suspended. When he learned that it had not been suspended, he promptly told the defendants that they would have to move to set aside the noting in default. I do not consider Mr. Vickery’s assumption that Mr. Simmonds had informed himself of his clients’ obligations to weigh in favour of granting the motion.
[43] Depending on the context, settlement negotiations could justify a defendants’ failure to file a statement of defence on time, and thus support a motion to set aside a noting in default. The plaintiffs argue otherwise. Relying on 7084421 Canada Ltd. v. Vinczer, 2020 ONSC 217, they contend that “this Court has held that direct negotiations between the parties should not constitute an excuse for delay, absent an explicit waiver of defence”. This is inaccurate. At para. 39 of his decision in Vinczer, Justice Bothwell said that it was “understandable” if a defendant engaged in negotiations did not file a defence, but that it “obviously would have been preferable had the defendants obtained an explicit indulgence from the plaintiff regarding the deferral of a defence pending negotiations”. He accordingly characterized the existence of ongoing settlement negotiations, in the circumstances, as a “weak” explanation for the defendants’ failure to serve a statement of defence. I agree with and adopt this reasoning. Given that the defendants in this case did not explicitly seek an indulgence to defer the service of a statement of defence, their reliance on ongoing, direct discussions between the parties is a factor on this motion, but not a strong one.
[44] The plaintiffs’ failure to give the defendants more notice of their intention to note them in default could be a significant factor if this were the first time that the defendants were seeking leave to be relieved of their default. When they served the action in November 2018, the plaintiffs put the defendants on notice that they would hold them to the procedural deadlines in the Rules and demanded a defence. This was the only time they demanded a defence. Strictly speaking, they were not required to ask twice. The defendants were, however, unrepresented, and the focus of communications between the parties was the potential resolution of the entire dispute or, at least, the preservation of any rights the plaintiffs had in the defendants’ property as a result of the Agreement. Despite this, Mr. Vickery gave Mr. Thorbjornsson less than a day’s notice before noting the defendants in default in late September 2019.
[45] Although the plaintiffs’ counsel could have made his clients’ position clearer, however, I do not consider this to be a significant factor on this motion. The defendants had seven weeks, pursuant to Labrosse J.’s February 10, 2020 endorsement, to prepare and file a defence. They therefore suffered no prejudice as a result of the plaintiffs’ failure to reiterate their demand for a defence after November 2018 or their lawyer’s decision to give the defendants virtually no notice of the noting in default in September 2019.
The length of the defendants’ delay
[46] The defendants had eleven months to file a defence before they were noted in default in September 2019. They did not provide the plaintiffs with a statement of defence for another nine months after that. This was five months after they were ordered to file a statement of defence within a set deadline, and three months after the deadline set by that order had passed. In all, the defendants waited twenty months after being served with the statement of claim before producing a statement of defence.
[47] In my view, this is a significant delay.
The reasons for the delay
[48] I have already reviewed Mr. Thorbjornsson’s explanation (or lack thereof) for his failure to produce a defence prior to February 10, 2020. Mr. Thorbjornsson blames the COVID-19 pandemic for missing the March 30, 2020 deadline and for his failure to provide a statement of defence for a further three months after that. In his affidavit, he says that a draft defence was “in progress” after February 10, but that the lawyer who drafted it was ultimately unable to represent him and his company in the action. At some unspecified date in March 2020, he went on a family holiday in South Carolina. When he returned, Mr. Thorbjornsson had to self-isolate for two weeks. After this two-week period, he says he had trouble finding a new lawyer because law offices were closed, and he was busy with childcare and dealing with requests from his tenants for rent abatements and lease terminations in the early stages of the pandemic. It was therefore not until mid-June 2020 that he was able to retain Mr. Simmonds’ firm.
[49] I do not find this explanation very compelling.
[50] Based on Mr. Thorbjornsson’s own evidence, he missed the March 30 deadline because he chose not to make the defence of this action a priority. The pandemic created significant challenges for landlords (and tenants), and he self-isolation rules for returning international travellers took many by surprise. But the critical period, from my perspective, is the seven weeks that Labrosse J. granted to the defendants to file their statement of defence in early February. Most of this period had already elapsed before the first COVID-19 pandemic lockdown in mid-March 2020. With the March 30 deadline looming, Mr. Thorbjornsson opted to go on holiday, without first having retained counsel of record, knowing that he was subject to a court-ordered deadline and knowing that no statement of defence had been finalized.
[51] With respect to the further delay between March 30 and mid-June 2020, I am skeptical about Mr. Thorbjornsson’s claim that he could not readily retain counsel when he returned from his holiday, either because he was in self-isolation or because law offices were closed. Given his real estate dealings, it is frankly inconceivable that Mr. Thorbjornsson could not have been obtained a referral to good defence counsel at any point, had he tried. As we have all learned over the past twenty-months, it is entirely possible to conduct all manner of business over the phone, by email or using video conferences. I assume that these are the tools that Mr. Thorbjornsson in fact used to manage his business interests during this same period.
The complexity and value of the claim
[52] The parties’ dispute is relatively straightforward. The court will have to assess whether the plaintiffs are entitled to specific performance of the defendants’ obligations under the Agreement and, if not, whether the plaintiffs are entitled to damages as a result of the defendants’ alleged failure to take meaningful steps to sever the property. The plaintiffs’ alleged damages are not trivial but neither is this a multi-million dollar claim.
Any other relevant factor
[53] There is no evidence that the plaintiffs have relied on the noting in default such that their interests would be prejudiced if it is set side. This is therefore not a relevant factor.
[54] On the other hand, if the noting in default is not set aside, the defendants will not be able to make a counterclaim for additional rent for the plaintiffs’ occupation of their property since October 2018. This consideration carries some weight. The defendants contend that the Agreement required the plaintiffs to leave the premises or to negotiate a commercial rent. According to Mr. Thorbjornsson, the monthly amount that the plaintiffs have been paying is about half of the amount of commercial rent he could charge a tenant. He has been receiving only the plaintiffs’ portion of some common costs (about $500 per month) since March 1st, 2020, when they began depositing the monthly payment under the Agreement into court.
[55] Finally, the procedural history of this action is a highly relevant factor. The defendants have already been given a chance to file a statement of defence after being noted in default. Even though they did not even file a motion seeking this relief, Justice Labrosse granted them leave to defend the action, provided that they filed their statement of defence by March 30. Having obtained this indulgence without exerting themselves, they then failed to take advantage of it. And so now they are seeking yet more time.
Conclusion
[56] Having weighed all relevant factors, I decline to exercise my discretion to give the defendants a further opportunity to file a statement of defence. In my view, the final factor discussed above weighs heavily against it. The defendants were already granted a second chance and they squandered it. Mr. Thorbjornsson has furthermore disregarded his obligations as a defendant in the Rules and shown a casual disregard for the Court’s authority. His actions have resulted in considerable delay and frustration for the plaintiffs. In the circumstances, I see no reason why the defendants should be granted a further indulgence at the plaintiffs’ expense. The only factor that really supports granting the motion is the impact that not doing so will have on the defendants’ ability to make a counterclaim. I do not find this sole factor determinative given all of the other factors arguing against the relief sought by the defendants.
Disposition
[57] The defendants’ motion is dismissed. If the parties cannot agree on costs, they may each serve and file submissions, no longer than three pages in length, setting out their position They should attach a draft bill of costs to these submissions, as well as any other directly relevant documents. The submissions must be filed through the civil counter by February 4, 2022 at 4:00 p.m.
Justice Sally Gomery
Released: January 26, 2022
COURT FILE NO.: CV-18-78306
DATE: 2022/01/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Vasil Trayanov and Olia Stantcheva
Plaintiffs/Respondents
– and –
Icetrading Inc. and VoLundur Thorbjornsson
Defendants/Moving parties
decision on motion to set aside noting in default
Justice Sally Gomery
Released: January 26, 2022