Court File and Parties

Court File No.: CV-20-00639803-0000 Date: 20230621 Superior Court of Justice - Ontario

Re: ON DECK CAPITAL CANADA, INC., formerly EVOLOCITY FINANCIAL GROUP INC., Plaintiff – and – 1521105 ONTARIO INC. o/a SYSTEM FITNESS and JOHN McCRINDLE, Defendants

Before: E.M. Morgan J.

Counsel: Daniel Kraus, for the Plaintiff Marshall Reinhart, for the Defendant, John McCringle

Heard: June 21, 2023

Summary Judgment Motion

[1] The Plaintiff seeks summary judgment against the Defendant, John McCrindle (“McCrindle”).

[2] The motion materials have been served on McCrindle. His counsel appeared at the hearing of the motion, but he apparently has lost contact with his client and has no instructions in respect of this motion. That can be an awkward position for a lawyer to be in, but I do appreciate counsel giving the court the courtesy of his attendance.

[3] The other Defendant, 1521105 Ontario Inc. (“System Fitness”), had its Statement of Defense struck out by Order dated July 21, 2022. System Fitness was already noted in default when this motion was served. Counsel for the Plaintiff advised me at the hearing that default judgment against System Fitness was granted January 25, 2023.

[4] The Plaintiff is a commercial lender who entered into a business loan agreement with System Fitness. The principal amount of the loan was $120,000, which was advanced to System Fitness on February 28, 2019. McCrindle is the personal guarantor of that loan.

[5] Both Defendants defaulted with respect to their obligations under the loan agreement, and have never cured the default.

[6] The Plaintiff therefore commenced this action under Simplified Procedure, on April 21, 2020, seeking damages as against them, on a joint and several basis, in the amount of $69,049.06, for breach of contract and unjust enrichment. The supporting affidavit of the Plaintiff’s Director of Collections, Christopher Lawrence, establishes that this is in fact the balance outstanding on the loan.

[7] The Plaintiff also seeks pre and post-judgment interest at the contractual rate of 13.55% per annum. The loan agreement is binding, and I see no reason why that interest rate should not be enforced along with the rest of the agreement.

[8] Pleadings were exchanged between all parties, as were affidavits of documents.

[9] As indicated, there is no evidence in the record responding to the claim against McCrindle. On the basis of the evidentiary record before me, I conclude that the money is owing to the Plaintiff as set out in the supporting affidavit.

[10] Furthermore, McCrindle’s Statement of Defence does not raise any genuine issue requiring a trial. The pleading contains admissions as to the Defendants entering into the loan agreement, receiving the funds from the Plaintiff, McCrindle agreeing to act as the personal guarantor to System Fitness in respect of the loan, and the Defendants defaulting on their obligations under the loan agreement.

[11] Although this motion is against only one of the two Defendants, it does not confront the obstacles to judgment that partial summary judgment motions frequently raise. Since System Fitness is already the subject of a default judgment, there is no risk of conflicting findings as between the two judgements. Under those circumstances, summary judgment against McCrindle is the most effective and expeditious way to move this case through the court system: see Malik v. Attia, 2020 ONCA 787.

Disposition

[12] The Plaintiff shall have judgment against McCrindle in the amount of $69,049.06, with interest at 13.55% from the date of default under the loan.

Costs

[13] The Plaintiff seeks costs of this motion in the total amount of $3,695.04, inclusive of HST and disbursements. That is a modest and entirely reasonable request given the time and effort it takes to put together a motion record.

[14] Rounding the figure off for convenience, McCrindle shall pay the Plaintiff costs of this motion in the all-inclusive amount of $3,695.

[15] There will be a judgment to go as submitted by Plaintiff’s counsel and completed by me.

Date: June 21, 2023 Morgan J.