Court File and Parties

Court File No.: CV-15-1700-0000 Date: 2024 01 08 Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton, Ontario L9T 1Y7

Re: The Toronto-Dominion Bank, Plaintiff -and- Joe Wing also known as Joseph Wing, Defendant

Before: C. Chang J.

Counsel: R. Izsak and L. Ferreira, for the Plaintiff

Heard: January 8, 2024 (in writing)

Endorsement

[1] The plaintiff brings this ex parte motion for an order amending the default judgment dated September 17, 2015 to add an alleged alias of the defendant, “Joseph Raymond Wing”, and for leave to obtain a writ of seizure and sale in the name of that alleged alias.

[2] For the following reasons, I am not prepared to grant the requested relief.

[3] The plaintiff has failed to adduce any evidence to establish on a balance of probabilities (or, for that matter, to any reasonable standard of proof) that the defendant is one and the same person as Joseph Raymond Wing. Instead, it appears to hope that the inadmissible conjecture, inadmissible opinion and inadmissible hearsay that permeate the moving affidavit will do the trick in discharging the applicable burden of proof. For example, according to the plaintiff, if its lawyer sends a letter addressed to “Joe Wing also known as Joseph Wing” to the address of a property that is jointly owned by “Joseph Raymond Wing” with three other persons and there is no response to that letter, then, absent anything else, that means that the former Mr. Wing is one and the same person as the latter Mr. Wing.

[4] Furthermore, the evidence filed on this motion shows that Joseph Raymond Wing was on title to the subject property since May 8, 2002, which is almost 22 years ago, more than 12½ years before default judgment was issued and almost 12 years before the action was commenced. As such, a minimal amount of due diligence prior to the issuance of the statement of claim would have revealed the allegedly newly discovered alias.

[5] That counsel felt that the court would grant the requested relief on the strength of the materials filed is baffling and troubling. That counsel felt it appropriate to seek that relief on the strength of those materials and without notice to anyone is beyond troubling and beyond baffling. It appears that the message that counsel must be punctilious in the drafting of their materials (see: Halton Standard Condominium Corp. No. 472 v Tritan Inc., 2023 ONSC 6745, at paras. 8-11) continues to fall on deaf ears. Should that message persist in being received with insufficient lucidity and/or resonance, some measure of sanction may be appropriate (see: Halton Standard Condominium Corp. No. 472 v Tritan Inc., 2023 ONSC 7134, at paras. 6-7), including possible resort to rule 57.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] This motion is adjourned to be heard orally on notice to the defendant, Joe Wing also known as Joseph Wing, and to Joseph Raymond Wing. That notice and all applicable motion materials shall be served on both of them by personal service or by an alternative to personal service. If service is to be effected by mail, the plaintiff must strictly comply with rule 16.03(4), including, without limitation, the requisite acknowledgment of receipt card.

[7] The plaintiff shall forthwith serve a copy of this endorsement on both the defendant and Joseph Raymond Wing.

[8] I am seized of this motion.

C. Chang J. Date: January 8, 2024