Court File and Parties
COURT FILE NO.: CV-19-00611921-0000 DATE: 20221104
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SETTLEMENT LENDERS INC., Plaintiff AND: SERGIO GRILLONE and GRILLONE BEKIARIS LLP a.k.a. GRILLONE LAW FIRM, Defendants
BEFORE: VERMETTE J.
COUNSEL: Sean Lawler, for the Plaintiff Sergio Grillone, self-represented
HEARD: June 22, 2022
ENDORSEMENT
[1] In his Notice of Motion, the Defendant Sergio Grillone seeks an order: (a) setting aside the noting in default of the Defendants; (b) setting aside the Judgment of O’Brien J. dated July 22, 2019 (“Judgment”), which is described in the Notice of Motion as a default judgment against the Defendants; and (c) granting leave to the Defendants to file a Statement of Defence.
[2] There are many issues with the motion brought by Mr. Grillone, including a fundamental flaw: the judgment that he is seeking to set aside is not a default judgment.[^1] It was obtained on notice to the Defendants and was based on Minutes of Settlement that were executed by the Defendants.
[3] At the hearing, the primary relief sought by Mr. Grillone was the setting aside of the Judgment, but the legal basis on which this relief was sought was unclear. Among other things, Rule 59.06 of the Rules of Civil Procedure and the case law pertaining to this Rule were not raised or discussed by Mr. Grillone. I found Mr. Grillone’s submissions, both in his Factum and at the hearing, very technical and often misleading.
[4] In my view, there is no basis for setting aside the Judgment. Since the action was settled and the Judgment was granted based on the Minutes of Settlement executed by the parties, there is also no basis to allow the Defendants to defend the action. Accordingly, and for the reasons set out below, the motion is dismissed.
A. FACTUAL BACKGROUND
1. The action and the noting in default
[5] The Plaintiff, Settlement Lenders Inc., is a litigation lender. The Defendant Sergio Grillone is a lawyer who, at the material times, practiced in the Greater Toronto Area in the area of personal injury.[^2] The Plaintiff loaned funds to Mr. Grillone’s clients and Mr. Grillone undertook to repay the Plaintiff from settlement proceeds.
[6] In 2018, the Plaintiff learnt that Mr. Grillone had settled various files but failed to pay the Plaintiff. On November 14, 2018, before the start of this lawsuit, Mr. Grillone made a written settlement proposal to the Plaintiff regarding these files. The Plaintiff accepted Mr. Grillone’s offer on November 15, 2018. However, Mr. Grillone defaulted under the settlement agreement reached by the parties and, on January 3, 2019, the Plaintiff commenced this action for payment of the sum of $261,078.42. The Statement of Claim seeks pre-judgment interest from the date of the issuance of the claim until the date of judgment and post-judgment interest thereafter at the rate of 29.95% per annum.
[7] According to two affidavits of service of Marco De Luca sworn January 17, 2019, the Statement of Claim was served on Mr. Grillone and Grillone, Bekiaris LLP by leaving a copy with Mr. Grillone on January 7, 2019. Mr. De Luca is the President of Omega Process Servers Inc. (“Omega”). During his cross-examination, Mr. Grillone confirmed that he received the Statement of Claim on that date.
[8] On January 22, 2019, the Plaintiff’s lawyer, David Schatzker, sent the following e-mail to Mr. Grillone:
I understand that my client’s statement of claim was served on your office earlier this month.
We spoke earlier this month and you advised that you were going to have a proposal to me shortly. I am just following up.
I have no instructions as to waiving any timelines in the action and would expect a defence in the ordinary course.
[9] Mr. Grillone responded as follows on January 23, 2019:
Thanks
For [sic] the email
I understand
Will be forwarding our notice of intent to defend and settlement proposal tomorrow
[10] The Defendants did not serve a Notice of Intent to Defend or a Statement of Defence the following day. Mr Schatzker sent follow-up e-mails to Mr. Grillone, but no defence was delivered, despite assurances that one would be delivered shortly. On February 14, 2019, Mr. Schatzker advised Mr. Grillone that if he did not receive a defence the following day, he expected to be instructed to proceed with a noting in default.
[11] The Defendants were noted in default on February 19, 2019. The Defendants served a Statement of Defence on February 20, 2019, but Mr. Schatzker advised Mr. Grillone on the same day that the Defendants had already been noted in default.
2. Minutes of Settlement
[12] Mr. Grillone and Mr. Schatzker subsequently exchanged e-mails about next steps. Mr. Grillone advised on March 7, 2019 that he had secured a date for a motion to set aside the noting in default. In the same e-mail, he also made an offer to settle the matter. The Plaintiff eventually accepted the offer and formal Minutes of Settlement were prepared.
[13] The Minutes of Settlement executed by the parties are dated March 20, 2019. They read, in part:
WHEREAS the Defendants have been noted in default herein;
AND WHEREAS the Plaintiff has applied for default judgment by the Registrar (the “Registrar’s Judgment”) but such judgment has not yet been granted or refused;
AND WHEREAS the Defendants have scheduled a motion date to set aside the noting in default;
AND WHEREAS the parties now wish to settle this matter;
THEREFORE FOR $2.00 CAD AND OTHER GOOD AND SUFFICIENT CONSIDERATION THE PARTIES AGREE AS FOLLOWS:
The Defendants shall and by these Minutes of Settlement (“Minutes”) do hereby consent to the issuance of a judgment in the terms claimed in the Statement of Claim and costs of $10,000 (the “Judgment”). The Defendants shall if required execute an additional consent to same within 2 business days of request for same.
If the Registrar’s Judgment issues on terms which are different from the Judgment described above, the Plaintiffs [sic] shall be at liberty to move to vary the Registrar’s Judgment such that same shall be in the same terms as the Judgment described above.
The Plaintiffs [sic] shall take no steps to enforce the Judgment or Registrar’s Judgment until an uncured event of default, as described herein.
Assuming no default in these Minutes, the Defendants shall make payment to the Plaintiff as follows:
a. Payment of $210,000 to the Plaintiff in four equal instalments on April 15, 2019, May 15, 2019, June 15, 2019, and July 15, 2019, for which post-dated cheques made out to Settlement Lenders Inc. shall be provided forthwith upon execution of these Minutes; and
b. Payment of $10,000 to the Plaintiff as a contribution to costs, such payment to be made forthwith upon execution of these Minutes to Clark Farb Fiksel LLP in Trust.
If the Defendants shall default in making any payment called for under these Minutes, then the Plaintiff may give a notice of default to the Defendants by sending such notice by email to Sergio Grillone at sgrillone@gbllp.ca.
Upon delivery of said notice, the Defendants shall have 5 business days to replace any missed, defaulted or dishonoured payment, with certified funds, wire transfer, or other means approved by the Plaintiff at the time of the default. Along with such replacement funds, the Defendants shall pay the sum of $500.00, as liquidated damages connected with their breach and not as a penalty.
If the Defendants shall fail to cure a default upon receipt of said notice, within the time and by the terms described herein, the default shall immediately and irrevocably be deemed to be an uncured default.
[…]
Upon the occurrence of an uncured default, the Plaintiff shall have the right to obtain the Judgment or Registrar’s Judgment, as applicable, if same has not previously been obtained, and shall be at liberty to enforce same, with no limitations, giving credit only for payments received to date under these Minutes.
[Emphasis in the original]
[14] Mr. Grillone made the April 15, 2019 payment required by the Minutes of Settlement in the amount of $52,500 as well as the $10,000 costs payment, but he defaulted on the May 15, 2019 payment.
[15] On May 24, 2019, Mr. Shatzker sent an e-mail to Mr. Grillone about the default. He stated that the Plaintiff would move for judgment in accordance with the Minutes of Settlement if payment was not received by May 31, 2019. Mr. Shatzker sent reminder e-mails to Mr. Grillone on May 29 and 31, 2019. Payment was not made by May 31, 2019.
3. The Plaintiff’s motion for judgment
[16] On June 27, 2019, Mr. Schatzker served the Defendants with the Plaintiff’s Motion Record for a motion in writing seeking judgment. The Motion Record was sent by courier. The courier’s waybill shows that the Motion Record was delivered on June 28, 2019. Mr. Grillone does not dispute that the Motion Record was served on his office.
[17] The Plaintiff’s Notice of Motion set out the following grounds for the motion:
This action is for payment of a liquidated sum arising from a failure to pay monies due and owing.
The Defendants were served, did not defend, and were noted in default.
After the Defendants were noted in default, the parties reached a settlement, which was memorialized in Minutes of Settlement.
The Minutes of Settlement provided that upon a default by the Defendants, which went uncured after notice, the Plaintiff would have the right to move for and obtain judgment in the terms set out in the Statement of Claim.
The Defendants have defaulted and failed to cure the default.
The Plaintiff is entitled to judgment under Rule 49 and pursuant to the Minutes of Settlement.
Such further and other grounds as this Honourable Court may consider. [Emphasis added.]
[18] The Motion Record contained an affidavit of one of Mr. Shatzker’s colleagues. The affidavit states, in part:
The Minutes of Settlement provided, amongst other things, that Grillone were to make four payments to SLI [Settlement Lenders Inc.] in April, May, June and July on the 15th of each month, and that if a payment was missed, Grillone would be given five business days’ notice in writing to cure the default, failing which SLI would be entitled to obtain judgment in the full amount claimed in the Statement of Clain, and costs of $10,000.00.
Grillone made a first payment in April of 2019 directly to SLI.
Grillone delivered two additional post-dated cheques, dated May 15, 2019 and June 15, 2019. A final cheque was to be delivered, but Grillone failed to deliver it. Copies of the cheques delivered are attached as Exhibit “C”.
The May 15, 2019 cheque failed to clear. A returned item advice was provided by SLI’s bank, which is attached as Exhibit “D”.
A notice of default was given on May 24, 2019, to Sergio Grillone by email, as required under the Minutes of Settlement. Further follow up correspondence was also directed to Grillone. See same attached as Exhibit “E”.
Despite repeated follow up, payment has not been made to replace the dishonoured May 15, 2019 cheque. Grillone have advised that Sergio Grillone has taken an indefinite leave. They are aware of the demand and default. Another lawyer and administrative staff have liaised with our office, but have not made any payment.
Pursuant to the Minutes of Settlement, the failure to provide replacement payment is a default entitling SLI to obtain judgment in the full amount claimed, which it can enforce giving deduction only for amounts received to date in respect of the Minutes of Settlement.
A copy of the judgment sought is attached as Exhibit “F”. The judgment is in accordance with the Minutes of Settlement and the Statement of Claim. [Emphasis added.]
[19] The Defendants did not file any materials in response to the Plaintiff’s motion for judgment.
4. The Judgment
[20] On July 22, 2019, O’Brien J. heard the motion in writing and wrote the following endorsement:
The Plaintiff brings this motion for judgment. The Defendants were noted in default, after which the parties entered into Minutes of Settlement. The Minutes of Settlement provided that the Defendants consented to judgment in the terms set out in the Statement of Claim and costs of $10,000, but that the Plaintiff would not take steps to enforce judgment until there was an “uncured” event of default. Such event occurred when the Defendants failed to make payments pursuant to the Minutes of Settlement, were provided notice as required, and did not cure their default. The Defendants have been provided with notice of this motion. In view of the terms of the Minutes of Settlement, the Plaintiff is entitled to judgment. I have signed the order in the form provided.
[21] The Judgment signed by O’Brien J. provides as follows:
ON READING the Statement of Claim in this action and proof of service thereof, filed, and the Defendants having been noted in default, and on reading the Motion Record of the Plaintiff seeking judgment, including the Minutes of Settlement signed by the parties:
IT IS ORDERED THAT the Defendants shall pay the Plaintiff the sum of $261,078.42.
IT IS ORDERED THAT the Defendants shall pay the Plaintiff pre-judgment interest on the aforesaid sum from January 3, 2019 to the date of judgment herein in the amount of 29.95% per annum.
IT IS ORDERED THAT the Defendants shall pay costs to the Plaintiff in the amount of $10,000.00.
IT IS ORDERED THAT this judgment bears post-judgment interest at the rate of 29.95% per annum.
5. The Plaintiff’s efforts to enforce the Judgment
[22] On August 26, 2019, Mr. Grillone was served with a Notice of Examination in Aid of Execution with respect to an examination scheduled for September 13, 2019. The affidavit of service for the Notice of Examination was sworn by Jannet Bartley on August 28, 2019. Ms. Bartley is an employee of Omega.
[23] On September 3, 2019, Mr. Grillone sent the following e-mail to Mr. Schatzker:
I am writing in my personal capacity.
I am still on medical leave.
I did receive a copy of a judgment debtor exam.
I have no knowledge of any judgment against me dared [sic] July 22 2019.
How did you obtain it and when was it served on me?
Also, how did you get the address of service on the judgment debtor exam?
Lastly, can you please provide copies of all affidavits of service in this matter.
Thank you in advance for your co-operation.
[24] Mr. Schatzker responded as follows on the same day:
I am attaching hereto the Judgment in this matter.
It was obtained by way of a motion in writing. I served office [sic] with a copy of the motion record. I also indicated to you [sic] colleague that I was doing so. I am attaching an additional copy of the Motion Record.
I note that you had been noted in default; service was a courtesy.
At any rate, I am sure that you will appreciate that my client was entitled to obtain this judgment and I had been clear in my emails to you that my client intended to move for judgment.
I also note that you had consented to my client obtaining this judgment, by the Minutes of Settlement, the first paragraph of which read, inter alia:
“The Defendants shall and by these Minutes of Settlement (“Minutes”) do hereby consent to the issuance of a judgment in the terms claimed in the Statement of Claim and costs of $10,000”
I trust that you will be in attendance on September 13, 2019 and that given that you are counsel, we will not have the unseemly exercise of bringing a motion before a master for an order to compel, etc.
[25] Later on September 3, 2019, Mr. Grillone advised that a motion to compel would not be necessary, but he renewed his request for copies of the affidavits of service and for the answers to the questions posed in his earlier e-mail.
[26] Despite his e-mail dated September 3, 2019, Mr. Grillone did not appear at the examination in aid of execution on September 13, 2019. The Plaintiff subsequently brought a motion to compel his attendance at an examination in aid of execution which was returnable on November 4, 2019.
[27] On October 31, 2019, Mr. Grillone sent the following e-mail to Mr. Schatzker:
As you are aware I am currently on medical leave and I am unrepresented with respect to the above referenced claim against me.
I have recently reviewed the 2 motion records in detail and I can advise that there are substantive errors in the manner in which judgment against me was obtained.
More specifically, your in writing motion for judgment dated June 17, 2019 sought an order for the full amount of the statement of claim.
As you are no doubt aware pursuant to Rule 39.01(6) on a motion without notice the moving party “shall make full and fair disclosure of all material facts and failing to do so is in itself sufficient grounds for setting aside any order [”].
Your client failed to include the April payment of $52,500.00, which payment was cleared and should have been deducted from the amount claimed in the judgment.
Therefore, your client has obtained a judgment that is inflated. Had Justice O’Brien been made fully apprised of the proper payment made he [sic] would not have granted judgment for the full amount claimed in the statement of claim.
If your client does not consent to setting aside the judgment by the end of business November 1, 2019 I will have no choice but to retain counsel to prepare materials and move for an order. Obviously if I have to retain counsel we will be seeking costs against your client.
Given that your motion on November 4, 2019 seeks remedies flowing from Justice O’Brien’s order, I suggest that the motion be adjourned to allow your client time to obtain a proper judgment (if warranted).
I look forward to your response.
[28] Mr. Grillone and Mr. Shatzker exchanged further e-mails on October 31, 2019. One of Mr. Shatzker’s e-mails read, in part:
As you will observe, the judgment was taken out exactly as contemplated in the Minutes of Settlement.
It will be enforced in the manner consistent with the Minutes of Settlement, that is to say: “with no limitations, giving credit only for payments received to date under these Minutes.”
All that being said, if you would prefer that the judgment be amended, I am prepared to seek instructions to amend the face amount, if you send me a draft order and consent. That is not a statement that there is any error in the original judgment, which, as I indicated, accords exactly with the Minutes of Settlement.
In any event the pending motion will proceed as scheduled. [Emphasis in the original.]
[29] In an e-mail sent on November 1, 2019, Mr. Shatzker noted the following:
The form of judgment sought was attached as Exhibit “F” to the affidavit seeking judgment, which was served on you in June of 2019, and you took no objection until after:
(a) the judgment had been signed;
(b) you had received the judgment and undertaken to attend for examination;
(c) you failed to attend for examination and ignored emails regarding same; and
(d) you were served with a motion to compel attendance.
I note that you did not address this issue until 2 days before the motion and you did not reply to my voicemail or email regarding [sic] from two weeks ago as to confirming the motion.
[30] Mr. Grillone responded as follows on November 3, 2019:
I reviewed the judgment and the affidavit again to make sure I was not mistaken and I notice that you also failed to address the 10K in costs I already paid.
Therefore, the judgment you obtained is objectively wrong on its face. Your client is not entitled to that judgment as it stands. I don’t think its [sic] on me to have it corrected. If you refuse to correct the improper judgment you obtained and you insist on getting a further judgment tomorrow that flows from the improper judgment I will have no choice but to retain counsel to bring a motion to set aside any and all judgments improperly obtained.
As previously advised, I do not have counsel and I am on medical leave, so if it has taken me longer than usual to address this matter I can only say your client has not been prejudiced at all.
I will not be in attendance tomorrow. I leave it to you to decide what is the appropriate steps to take balancing both your clients [sic] rights, your obligation to be fully transparent to the court and your obligations under the rules of professional conduct.
Having said that I am putting both you and your client on notice that I will be seeking costs if this matter is not addressed appropriately.
[31] On November 4, 2019, Master Mills (as the title then was) made an order compelling Mr. Grillone’s attendance at an examination in aid of execution. The Master’s Order also included the following paragraph:
IT IS ORDERED that this order shall remain in force until set aside or varied, and shall be binding on the Defendants, notwithstanding any pending or threatened motions to set aside this order or the Judgment herein.
[32] On July 20, 2020, Mr. Schatzker arranged for a writ to be issued against Mr. Grillone. The writ recognized the $52,500.00 and $10,000.00 payments previously made by Mr. Grillone.
[33] Mr. Grillone did eventually attend an examination in aid of execution on January 14, 2021.
[34] The scheduling of this motion took place more than a year later, i.e. in March 2022.
[35] It is clear from a number of decisions reported on public legal databases and some pleadings included in the record before me that Mr. Grillone was active in other litigation matters in 2020-2021. For example, on July 14, 2021, Mr. Grillone and Grillone Law Firm commenced an action against multiple parties, including Omega and Mr. Schatzker’s firm. The Statement of Claim contains allegations of fabricated and forged affidavits of service.
B. DISCUSSION
1. Applicable test
[36] In my view, it is clear from the Plaintiff’s Notice of Motion that it sought judgment under Rule 49 of the Rules of Civil Procedure pursuant to the Minutes of Settlement, and not a default judgment. It is also clear from O’Brien J.’s endorsement that she granted judgment based on the terms of the Minutes of Settlement. She specifically stated the following in her endorsement:
a. “The Minutes of Settlement provided that the Defendants consented to judgment in the terms set out in the Statement of Claim and costs of $10,000, but that the Plaintiff would not take steps to enforce judgment until there was an ‘uncured’ event of default.”
b. “In view of the terms of the Minutes of Settlement, the Plaintiff is entitled to judgment.”
[37] Paragraph 1 of the Minutes of Settlement provides that the Defendants consent to the issuance of a judgment in the terms claimed in the Statement of Claim and costs of $10,000. The Minutes of Settlement also provide that such judgment cannot be enforced until an uncured event of default takes place (paragraph 3) and that credit for payments received under the Minutes of Settlement will be given at the time of enforcement of the judgment (paragraph 9).
[38] The Judgment mirrors the terms claimed in the Statement of Claim plus costs of $10,000. By signing the Minutes of Settlement, the Defendants agreed to such judgment being obtained. There is no evidence before me that the Plaintiff has failed to give credit for payments received from the Defendants under the Minutes of Settlement in enforcing the Judgment.
[39] Given that the Judgment is based on the Defendants’ consent contained in the Minutes of Settlement, the test that the Defendants have to meet in order to set aside the Judgment is not the test applicable to default judgments, but, rather, the test applicable to consent judgments. See 620369 Ontario Inc. v. El Badry, 2018 ONSC 5534 at paras. 26-27.
[40] A consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or where there is fraud. In other words, a consent judgment can only be set aside on the same grounds as the agreement giving rise to the judgment. These grounds go to the formation of the agreement, not to its subsequent performance. A self-induced unilateral mistake is not ordinarily a basis for setting aside a contract. See McCowan v. McCowan (1995), 24 O.R. (3d) 707 (C.A.), Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164 at 165-166 (Ont. C.A.), Royal Bank of Canada v. Korman, 2009 ONCA 590 at para. 15 and Verge Insurance Brokers Limited et al. v. Sherk, 2015 ONSC 4044 at paras. 54-57.
[41] In this case, Mr. Grillone has not established any valid grounds to set aside the Minutes of Settlement that were voluntarily executed by the Defendants. Among other things, he has not alleged, let alone proved, fraud on the part of the Plaintiff.
2. Mr. Grillone’s main complaints
[42] Mr. Grillone’s main complaints with respect to the Judgment are the following: (a) the Judgment is incorrect on its face as it fails to acknowledge past payments made by the Defendants prior to the date of the Judgment and the prejudgment and postjudgment interest rate is unsupported; (b) the fact that Mr. Grillone paid certain amounts was not disclosed to O’Brien J.; and (c) the Judgment was obtained irregularly as a result of the filing of forged affidavits of service.[^3]
[43] The first complaint fails to recognize that the Judgment was obtained pursuant to the terms of the Minutes of Settlement. As stated above, the Judgment mirrors the terms claimed in the Statement of Claim plus costs of $10,000. By signing the Minutes of Settlement, the Defendants agreed to such judgment being obtained. Credit for past payments is to be given at the time of enforcement.
[44] The fact that the prejudgment and postjudgment interest rate in the Judgment/Statement of Claim is not supported by specific allegations in the Statement of Claim is irrelevant as the Defendants consented to this term in the Minutes of Settlement. See 620369 Ontario Inc. v. El Badry, 2018 ONSC 5534 at paras. 36-37. Further, as pointed out by Mr. Schatzker during his cross-examination, the interest rate may well be found in the documents that are incorporated by reference in the Statement of Claim, including the promissory notes signed by Mr. Grillone’s clients. Such documents were not included in the record before me. However, as stated above, it was not necessary to do so because the Defendants consented to the interest rate referred to in the Statement of Claim when they signed the Minutes of Settlement.
[45] With respect to the second complaint, the affidavit that was included in the Motion Record that was before O’Brien J. disclosed that Mr. Grillone had made the first payment required under the Minutes of Settlement. It did not disclose that, pursuant to the Minutes of Settlement, Mr. Grillone had also paid $10,000 to the Plaintiff as a contribution to costs. However, this was unnecessary in light of the fact that: (a) the Defendants consented to the issuance of a judgment that included costs of $10,000, and (b) the Minutes of Settlement provides that credit for past payments is to be given at the time of enforcement. The Plaintiff did not state in its motion materials that the Defendants had failed to make the $10,000 costs payment. Rather, the event of default relied upon by the Plaintiff was the Defendants’ failure to make the May 15, 2019 payment required by the Minutes of Settlement.
[46] Mr. Grillone’s third complaint regarding forged affidavits of service is unsupported. I agree with the Plaintiff’s submission that:
a. Mr. Grillone has not established that the affidavits of service prepared by Omega in this case were forgeries. He has not adduced any evidence about the legitimacy of the specific affidavits of service in this proceeding.
b. There is no dispute that the substantive contents of the affidavits of service are true (i.e. Mr. Grillone was served).
c. Mr. Grillone has admitted receiving the documents that were served by Omega (i.e. the Statement of Claim and the Notice of Examination) both contemporaneously with the service and subsequently.
[47] I also note that Mr. Grillone stated during his submissions at the hearing that he was not insisting that the particular affidavits of service of Mr. De Luca in this case were forgeries.
[48] While a significant part of Mr. Grillone’s affidavit and Factum deals with allegations that Omega has a history of providing its clients with forged affidavits of service,[^4] the evidence is general and not related to the specific affidavits of service in this case. As part of this general evidence, Mr. Grillone attached to his affidavit a report of a “Forensic Document Examiner & Forgery Analyst” dated February 16, 2020 which analyzes the signatures of some Omega employees. This report is not properly in evidence before me as its author did not provide any affidavit evidence in this proceeding.
[49] Even if the affidavits of service were forgeries, I am of the view that this would not have an impact on the Judgment. The Motion Record that was filed to obtain the Judgment was not served by Omega. It was served by courier and the relevant affidavit of service is sworn by Mr. Schatzker. There is no allegation and no evidence that there is any issue with respect to this affidavit of service.
[50] Further, the fact that the proof of service of the Statement of Claim is referred to in the preamble of the Judgment is neither here nor there given that:
a. The Judgment is not a default judgment. The Judgment is based on the Minutes of Settlement executed by the Defendants, and the Defendants had notice of the motion for judgment and received the Plaintiff’s Motion Record.
b. The Statement of Claim was, in fact, served on Mr. Grillone, as he acknowledges himself
[51] Finally, there is no evidence whatsoever that the Plaintiff or its lawyers were aware that the affidavits of service provided by Omega in this case were or could be forgeries.
[52] Mr. Grillone also made some submissions at the hearing about the interpretation of the Minutes of Settlement and an ambiguity arising from an alleged inconsistency between certain clauses of the Minutes of Settlement. These submissions relate to the merits of the Plaintiff’s motion for judgment and the interpretation of the Minutes of Settlement accepted by O’Brien J. Submissions about the correct interpretation of the Minutes of Settlement could have been made before O’Brien J. – Mr. Grillone was given notice of the motion and did not file any responding materials – or on an appeal from her decision. A motion to set aside an order is not the proper vehicle for a review of the merits of a decision.
[53] In light of the foregoing, I conclude that there is no basis for setting aside the Judgment. Since the action was settled and judgment was granted based on the Minutes of Settlement executed by the parties, there is also no basis to allow the Defendants to defend the action.
[54] My conclusion that the Judgment should not be set aside is also supported by the principle of finality.
[55] Mr. Grillone: (a) settled the action by way of Minutes of Settlement in March 2019; (b) made partial payment under the Minutes of Settlement in April 2019; (c) was served with the Plaintiff’s Motion Record for its motion for judgment in June 2019 and did not respond to it; (d) became aware of the Judgment on September 3, 2019 at the latest; (e) was put on notice on September 19, 2019 of a motion brought against him for an order to compel him to attend an examination in aid of execution and such an order was obtained against him by the Plaintiff; and (f) attended an examination in aid of execution in relation to the enforcement of the Judgment in January 2021. While Mr. Grillone arranged for the scheduling of this motion in March 2022, most of the arguments he raised on this motion were raised in e-mails he sent in 2019.
[56] Even if the COVID-19 pandemic could justify part of the delay in bringing this motion to set aside the Judgment, there is no explanation for most of the 2 ½ -year delay between Mr. Grillone becoming aware of the Judgment in September 2019 and the bringing of the motion to set aside the Judgment in March 2022. Given the chronology above and the significant delay, it is my view that the Plaintiff is entitled to rely on the finality of the Judgment: 2479240 Ontario Inc. v. CS Capital Limited, 2021 ONSC 8421 at para. 36.
C. CONCLUSION
[57] Mr. Grillone’s motion is dismissed.
[58] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by November 18, 2022. The Defendants shall deliver their responding submissions (with the same page limit) by December 2, 2022. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.
Vermette J.
Date: November 4, 2022
[^1]: This was admitted by Mr. Grillone during his cross-examination of David Schatzker. [^2]: In September 2019, Mr. Grillone signed an undertaking not to practice law. [^3]: Mr. Grillone also complains that the preamble of the Judgment refers to the judge reading the proof of service of the Statement of Claim, but that the affidavit of service for the Statement of Claim was not included in the Motion Record. I give no weight to this argument. Affidavits of service are filed separately and can be provided separately to a judge hearing a motion. This is illustrated by O’Brien J.’s endorsement itself which refers to the fact that the Defendants were provided with notice of the motion even though the affidavit of service for the Motion Record was not included in the Motion Record. There is no evidence that O’Brien J. did not read the proof of service of the Statement of Claim, as stated in the Judgment. In any event, Mr. Grillone has admitted receiving the Statement of Claim on the date set out in the affidavit of service. [^4]: I note that Mr. Grillone has commenced an action against Omega and others in which he raises similar allegations.