Court File and Parties

COURT FILE NO.: CV-21-86965 DATE: 2023/11/27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Service de Pneus Lavoie Outaouais Inc. (Plaintiff) AND 2189224 Ontario Inc. o/a Tiremag (Defendant)

BEFORE: Justice Sylvia Corthorn

COUNSEL: Pierre Champagne, for the plaintiff corporation No one appearing for the defendant corporation (noted in default)

HEARD: November 2, 2023 (By videoconference)

Amended Endorsement

The text of the original Endorsement dated November 16, 2023, was amended on November 27, 2023, and the description of the amendment is appended.

Introduction

[1] The plaintiff corporation (“Service de Pneus”) obtained a default judgment in April 2022. Pursuant to that judgment, the defendant corporation is a judgment debtor in the approximate amount of $72,600, with post-judgment interest accruing at the rate of 26.8 per cent per year.

[1] In the course of attempting to enforce the default judgment, Service de Pneus learned that the numbered corporation named as the defendant in this action is not the numbered corporation (a) which carries on business under the name of “Tiremag”, and (b) with which Service de Pneus had, in fact, been dealing for approximately six years when the default judgment was obtained.

[2] The error in the name of the defendant corporation is the use of the number “9” in the latter four digits of the corporation number. The “9” should be a “4”, such that the corporation number is “2184224”. The correct name of the defendant corporation is “2184224 Ontario Inc. o/a TIREMAG” (“Tiremag”).

[3] On this motion, Service de Pneus seeks two forms of relief. First, Service de Pneus requests leave to amend the title of proceeding, to include the number of the defendant corporation which in fact operates under the business name of “Tiremag”. Second, Service de Pneus asks the court to vary the term of the order of Justice Parfett, dated April 2022, such that it is clear that the default judgment is granted as against “2184224 Ontario Inc. o/a TIREMAG” and not as against the defendant named in the proceeding.

[4] I shall deal first with the request for leave to amend the title of proceeding and then with the request for an order varying the terms of the default judgment.

Leave to Amend the Title of Proceeding

[5] Pursuant to r. 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court has the discretion to “correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

[6] For the following reasons, I am satisfied that Tiremag will not be prejudiced by leave being granted to Service de Pneus to correct the number of the corporation named as a defendant in the proceeding:

• Service de Pneus and Tiremag began doing business together in April 2016. In that month, the parties entered into a credit agreement. In the relevant document, the “Legal Name” of the numbered company is printed as “2184224 Ontario Inc.”. The top of the middle “4” runs into a line which runs across the page. The result is that the “4” is closed at the top, creating the appearance of a “9”. The Legal Name as entered therefore appears to be “2189224 Ontario Inc.”;

• The parties continued in business for several years, during which Service de Pneus repeatedly rendered invoices to “Tire Mag, 2189224 Ontario Inc.” at the business address listed in Tiremag’s credit application (note: “Tire Mag” is spelled as it appears in the invoices rendered). Service de Pneus continued to render invoices in that manner to and including 2020;

• The individual representatives of Tiremag with whom Service de Pneus dealt from 2016 forward are the principals of 2184224 Ontario Inc. as listed in that corporation’s Corporate Profile;

• Service de Pneus sent a demand letter to 2189224 Ontario Inc. in April 2021. The letter was sent by XPRESSPOST to the business address for Tiremag and to the attention of the two individuals who are listed in the Corporate Profile for 2184224 Ontario Inc. as the principals for that corporation; and

• At no time did anyone on behalf of Tiremag advise Service de Pneus that the number of the corporation listed in the invoices or in other documents was incorrect.

[7] In addition to the manner in which Service de Pneus and Tiremag conducted business, I consider the manner in which Tiremag responded to service of the statement of claim in this proceeding. The April 2021 statement of claim was served in July 2021.

[8] Following service of the statement of claim, one of the principals of Tiremag contacted the office of counsel for Service de Pneus. The principal informed counsel that a proposal for a payment plan would be made within the week during which the telephone call took place. Such a proposal was never made; the defendant corporation named in the title of proceeding was noted in default; and default judgment was obtained.

[9] There is no evidence that, even once served with the statement of claim, anyone on behalf of Tiremag brought to the attention of Service de Pneus or anyone on their behalf (i.e., including their counsel) the error in the corporation number.

[10] I am satisfied that (a) Service de Pneus clearly intended to bring their action against 2184224 Ontario Inc.; (b) it is clear from the statement of claim that Service de Pneus was pointing the litigation finger at the numbered corporation which operates under the business name of Tiremag; and (c) Tiremag will not be prejudiced in any way by the correction to the name of the numbered corporation named as the defendant in this action.

[11] Service de Pneus is granted leave to amend the title of proceeding as requested.

[12] I turn next to the request for an order varying the terms of the default judgment to provide that Tiremag – and not the numbered corporation named as a defendant in the originating process – is the party responsible for payment of the damages awarded.

Varying the Terms of the Default Judgment

[13] Rule 59.06 governs motions for an order varying the terms of an order or a judgment. Pursuant to r. 59.06(1), “An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.”

[14] On the return of the motion in this matter, I raised with counsel for Service de Pneus the lack of evidence as to reasonable diligence exercised before the statement of claim was issued to determine the correct name of the corporation against which the claim would be made: see Goodman Investments Ltd. v. Abraham (1976), 1 C.P.C. 258 (Ont. H.C.J.).

[15] I also raised with counsel for Service de Pneus whether it would be fair to Tiremag to identify it as the judgment debtor. It is possible that Tiremag chose not to defend the proceeding because it was aware of the use of the incorrect corporation number in the title of proceeding and the substantive portions of the statement of claim. It is possible that the principals of Tiremag believed that a judgment, if obtained, could not be enforced against 2184224 Ontario Inc.

[16] The principle of proportionality set out in r. 1.04(1) is important in this matter. The principal amount of the judgment is less than $100,000. Absent a response from Tiremag to either the claim or this motion, it is reasonable to adjourn the variation portion of the motion, require Service de Pneus to serve the motion record and this endorsement on Tiremag, and give Tiremag an opportunity to respond to the motion.

Interim Disposition

[17] For the reasons set out above, I make the following order:

1. The plaintiff corporation is granted leave to amend the title of proceeding such that, in all documents served or delivered subsequent to the date of this order, the defendant corporation shall be described as “2184224 Ontario Inc. o/a TIREMAG”.
2. The balance of the plaintiff corporation’s motion is adjourned to a date to be scheduled by the plaintiff corporation.
3. The plaintiff corporation shall serve on the defendant corporation a copy of the motion record dated October 6, 2023, the factum dated October 20, 2023, the court’s endorsement dated November 16, 2023, and this order.
4. On the continuation of the plaintiff corporation’s motion, the plaintiff corporation shall be entitled to rely on the documents described in paragraph 3, above, and shall not be required to deliver a further motion record or factum.
5. On the continuation of the plaintiff corporation’s motion, the plaintiff corporation shall be entitled to rely on a point-form statement of law (to a maximum of two pages) regarding the request for variation of the default judgment.

[18] I remain seized of the matter. As a result, the date for the continuation of the plaintiff corporation’s motion shall be selected through consultation with the office of the Trial Co-ordinator.

[19] The issue of costs of the plaintiff corporation’s motion is reserved and shall be determined following the completion of the hearing of the motion. If the plaintiff corporation intends to seek costs of the motion, on the continuation of the hearing of the motion, the plaintiff corporation shall file a costs outline which conforms with the requirements of r. 57.01(6) and Form 57B and which addresses only those costs the plaintiff corporation seeks to recover.

Madam Justice Sylvia Corthorn Date: November 27, 2023

APPENDIX

Paragraph [1] previously stated:

[1] The plaintiff corporation (“Service de Pneus”) obtained a default judgment in April 2022. Pursuant to that judgment, the defendant corporation is a in the approximate amount of $72,600, with post-judgment interest accruing at the rate of 26.8 per cent per year.

Paragraph [1] now reads as follows:

[1] The plaintiff corporation (“Service de Pinus”) obtained a default judgment in April 2022. Pursuant to that judgment, the defendant corporation is a judgment debtor in the approximate amount of $72,600, with post-judgment interest accruing at the rate of 26.8 per cent per year.