Court File and Parties
Superior Court of Justice - Ontario
Re: MCAP SERVICE CORPORATION, Plaintiff
And: JEFFREY THYSSEN, Defendant
Before: Justice I.F. Leach
Counsel: Eva Lake, for the Plaintiff No one appearing for the defendant, as the motion is being brought on an ex parte basis and the defendant has been noted in default
Heard: In writing
Endorsement
1Before me is an ex parte motion brought by the plaintiff, in writing pursuant to Rule 37.12.1(1) of the Rules of Civil Procedure, for an order granting leave to issue a writ of possession in relation to the mortgaged property that is the subject of this proceeding.
2That property also was the subject of a judgment herein, made in favour of the plaintiff on May 25, 2023, which a provision requiring the defendant to deliver possession of the land to the plaintiff.
3The plaintiff’s motion material generally is in order.
4In saying that, I am mindful of Rule 60.10(2) of the Rules of Civil Procedure, which provides that an order granting leave to issue a writ of possession may be made only where the court is satisfied that “all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief”.
5I also am mindful that, in this case, the moving plaintiff repeatedly has attempted, through its agent Will Merkley, to perform a thorough and up to date “Occupancy Check” in relation to the subject property, (a residential house in the town of Ilderton, Ontario), but the observations Mr Merkley has been able to make in that regard have been frustrated by the failure of anyone to answer the door of the residence during his attendances, even when a vehicle was parked on site.
6However, in my view, the situation has been adequately addressed by other evidence put forward by the plaintiff, and the proposed qualification the plaintiff itself proposes in relation to the relief being requested. In particular:
a. The affidavit of service, relating to service of the plaintiff’s statement of claim on April 13, 2023, indicates that service of the plaintiff’s pleading was effected by the process server leaving a copy at the subject residence with Desiree Mancel, an adult female who identified herself as the plaintiff’s girlfriend, and who also appeared to be a member of the same household.
b. On May 29, 2023, the plaintiff served, via registered mail and regular mail, addressed to all adult occupants of the subject residence and their spouses, a formal Notice Demanding Possession that included notice of this proceeding and the judgment for possession obtained therein, as well as notice indicating the ability of any occupant of the property to bring a motion in this court requesting that the default judgment be set aside. There is nothing to suggest that the mailed notices failed to arrive at the subject residence, and during Mr Merkley’s subsequent attendances at the property on June 13, 2023, and July 5, 2023, he was able to observe that no mail was waiting in its mailbox.
c. On July 24, 2023, a law clerk with the firm acting for the plaintiff conducted a driver’s licence search in relation to the defendant Mr Thyssen, the results of which indicated that Mr Thyssen is still residing in the subject residence.
d. In the circumstances, I am satisfied that the subject property almost certainly is still occupied by Mr Thyssen and his partner Ms Mancel, (both of whom have been made aware of this proceeding), and that adequate notice of the proceeding will have come to the attention of any other adult occupant of the same household. However, to address the possibility of all or part of the property having been made the subject of any unknown lease, and to ensure the plaintiff’s ability to comply with the provisions of the Residential Tenancies Act, 2006, S.O. 2006, c.17, the plaintiff has asked that leave be granted to issue a writ of possession that expressly directs the Sheriff of Middlesex County not to interfere in any way with the possession of any tenant in actual possession of the property without further order of the court.
7In the circumstances, I have finalized and signed the submitted draft order, granting the plaintiff leave to issue a writ of possession subject to that express limitation.
“Justice I.F. Leach”
Justice I.F. Leach
Date: July 30, 2023