Court File and Parties
COURT FILE NO.: CV-24-00715977-0000 DATE: 20241115 SUPERIOR COURT OF JUSTICE – ONTARIO
B E T W E E N:
RE: FANNY DOUCET., Plaintiff
AND:
MARK MORROW and 2675512 ONTRIO LTD. o/a SRKB BUILD, Defendants
HEARD: In Writing
COUNSEL: Faren Bogach and Rapti Ratnayake, Lawyers for the Plaintiff
Endorsement
G. DOW, J.
[1]
Background
This matter was referred to me as an in-writing unopposed motion for default judgment on November 12, 2024. Its referral appears to have been the result of submitting a Requisition to Schedule a Short Motion or Application reviewed by me on July 11, 2024. My endorsement (at pages 6 and 7) sets out the usual process to be followed in Toronto. This included that the requisite Motion Record and Factum along with my endorsement were to be served on the defendants on or before August 15, 2024 in accordance with Casa Manila Inc. v. Iannuccilli 2018 ONSC 7083, that is personal service, and if the defendants failed to notify plaintiff’s counsel that they would be responding, it would proceed in writing during the week of September 9, 2024.
2On November 5, 2024, my assistant passed on to me an email from plaintiff’s counsel inquiring with regard to the status of this matter and if I had read the motion material during the week of September 9, 2024. After making inquiries with the civil motions staff, I learned that the plaintiff’s counsel had failed to confirm having complied with my order to the Motion’s Coordinator. As a result, it was not sent to a Justice for review the week of September 9, 2024 (and that I was NOT seized of the matter). Counsel was advised of this and directed to contact JUS-G-MAG-CSD-Long Motions at LongMotionsStatus.Judge@ontario.ca for further assistance.
[3]
Service Efforts
The material uploaded and available on Case Center (apparently up to November 7, 2024) includes Affidavits of Attempted Service sworn September 4, 2024 describing attendances at 28 Norton Street, Uxbridge on August 3 and August 8, 2024, a residential address (and apparently the last known address of the defendants). There was no answer each time. Two vehicles were identified by their license plate numbers and referenced in the Affidavits (without further information).
[4]
Analysis
I am not satisfied the plaintiff has complied with my July 11, 2024 Order and provided “particulars of a basis for a judge to find that the Defendants received the Statement of Claim and Motion Record or otherwise knows about the law suit”.
5I appreciate the personal service ordered may not be achievable but greater efforts, subsequent to my endorsement of July 11, 2024 to locate and serve the defendants, are required to be put before the Court then what has occurred here. There was no evidence, such as a title search of the property, license plates searches of the vehicles, corporate records or retaining what is known as a “skip tracer” that would substantiate a request to proceed without the level of service ordered.
6The level of service ordered is done to minimize any chance of success the judgment being requested/granted subsequently be set aside on the basis the Statement of Claim never came to the attention of the defendants. This process assists plaintiffs proceeding with collection efforts after obtaining judgment and reduces the potential need for valuable court time being used hearing motions to aside default judgments. Any additional disbursements incurred in obtaining current addresses and completion of personal service can and should be added to the costs being sought.
[7]
Disposition
As a result, this motion is dismissed. It is dismissed without prejudice to it being renewed on compliance with my Order which is varied to now include service of this endorsement and the following dates contained in my endorsement of July 11, 2024 revised as contained in the following subparagraphs:
(a) from August 15, 2024 to December 16, 2024; (c) from August 26, 2024 to December 30, 2024; and (d) from September 9, 2024 to January 13, 2025.
Mr. Justice G. Dow
Released: November 15, 2024