Reasons for Judgment

Court File No.: CV-12-36193-SR
Date: 2025-03-10
Ontario Superior Court of Justice

Between:
Veeru Kantor, Plaintiff
– and –
Nirpal Grewal, Rajinder Grewal, Varinder Grewal and Sukhjit Sonia Singh, Defendants

Appearances:
G. Gligoric, for the plaintiff
V. Grewal for himself and S. Singh

Heard: February 26, 2025

Bordin J.

Overview

[1] The defendants Varinder Grewal (“Varinder”) and Sukhjit Sonia Singh (“Sukhjit”) move to set aside the default judgment obtained on March 1, 2013, for a sum owing under a mortgage and for possession of property. Varinder and Sukhjit’s motion is dated December 6, 2021.

[2] Before Varinder and Sukhjit (together the “Grewal defendants”) commenced the motion to set aside the default judgment, the plaintiff, Veeru Kantor served the defendants, on or about April 13, 2021, with a motion to enforce the default judgment. The motions were scheduled to be heard together.

[3] Varinder and Sukhjit are spouses. The defendants Rajinder Grewal (“Rajinder”) and Nirpal Grewal (“Nirpal”) are Varinder’s parents.

[4] The Grewal defendants each filed one affidavit dated October 5, 2021, on the motion to set aside the default judgment. Sukhjit adopts the contents of her husband’s affidavit. They also filed another affidavit from Varinder, dated March 29, 2022. The Grewal defendants were represented by a lawyer when these materials were prepared and served.

[5] On the motion to set aside the default judgment, the plaintiff tendered an affidavit from her husband, Dennis Khanna (“Khanna”). The plaintiff filed an affidavit in her name on her motion to enforce the default judgment.

[6] Varinder, Sukhjit and Khanna were cross-examined on their affidavits on August 16, 2022. Exhibits from those cross-examinations are part of the record. The Grewal defendants were represented by a lawyer when those cross-examinations took place.

[7] On April 16, 2024, the lawyer for the Grewal defendants was removed from the record by order of McGraw A.J. The order contains the mandatory terms required by r. 15.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Grewal defendants have been self-represented since then.

[8] The Grewal defendants filed a detailed 62-paragraph factum dated February 25, 2025. Although self-represented at the motion, Varinder advised the court that he had a lawyer assisting him with the factum and motion materials.

[9] Varinder’s parents did not participate in these motions. Although not in evidence before me, Varinder advised the court that he has had no contact with his parents since approximately 2009.

Background Facts

[10] On May 8, 2008, the four defendants acquired 23 Tevere Place (the “Property”). A 50 percent interest was taken by Varinder and Sukhjit as joint tenants as between them and a 50 percent interest was taken by Varinder’s parents as joint tenants as between them. The two 50 percent interests were held as tenants in common. A first mortgage was registered on title at the time of purchase in favour of TD Bank. A second mortgage in favour of TD Bank was registered on September 18, 2008.

[11] On June 10, 2009, a second mortgage was registered in favour of The Effort Trust Company (“Effort Trust”) for $80,000.00 at an interest rate of 15%. The TD Bank second mortgage was discharged on July 20, 2009. Varinder conceded in submissions that the Effort Trust second mortgage was a valid mortgage.

[12] According to documents tendered by the plaintiff, Global Investments Holdings Inc. (“Global”) paid $95,550.99 to Effort Trust on March 27, 2012 to acquire the Effort Trust second mortgage. Effort Trust transferred its second mortgage to Global on April 13, 2012. Ross McLeod (“McLeod”) was the lawyer for Global in this transaction.

[13] There was a third mortgage registered on title by Global. Its validity is disputed by the Grewal defendants.

[14] On July 26, 2012, Global commenced a claim against all four defendants for $98,828, said to be due under the second mortgage with interest at 15% per annum, and for possession of the Property. The amount claimed in the statement of claim consists of $80,000 for principal, $15,828 for interest, and fees $3,000 for late/NSF/missing payments. McLeod acted for Global in the action on the second mortgage.

[15] According to the statement of claim, the default in payment of Global’s mortgage occurred on April 10, 2011.

[16] Global obtained default judgment on March 1, 2013, for $102,962.25, with interest at 15%, and for possession of the Property.

[17] The Property was sold by Global under power of sale on March 11, 2013 for $640,000. The funds were insufficient to pay off the amount owing on the Global mortgage.

[18] Global assigned the claim to the plaintiff on or about May 27, 2017. On August 23, 2019, the plaintiff obtained a court order to continue Global's action under the plaintiff's name.

[19] On or about April 13, 2021, the plaintiff served the defendants with a motion to enforce the default judgment and collect the amount outstanding. As noted, the motion to set aside the default judgment was originally served on December 6, 2021.

[20] McLeod’s files were apparently lost or destroyed. There is no evidence before the court as to the circumstances of the loss or destruction.

The FST Decision, the LSO Decision and Khanna’s Credibility

[21] The Grewal defendants rely on a decision of the Law Society of Ontario (“LSO”) involving McLeod in Law Society of Ontario v. McLeod, 2021 ONLSTH 35 (the “LSO Decision”), an Interim Order of the Financial Services Regulatory Authority of Ontario (“FSRA”) dated June 11, 2011 (the “FSRA Order”), and Kantoor v. Comparone, 2023 ONCA 812. Although not specifically put before the court, the Grewal defendants also referenced the decision of the Financial Services Tribunal (“FST”) in Metro Financial Planning Limited and Dinesh Khanna v. Ontario (Superintendent Financial Services), 2017 ONFST 4 (the “FST Decision”).

[22] In the FSRA order, the FRSA stated at paras. 3, 7 and 10:

On May 8, 2017, after a 9-day hearing, the Tribunal ordered that the Superintendent carry out the proposal to refuse Khanna’s mortgage broker license application. The Tribunal found that Khanna engaged in widespread professional misconduct including fraudulent and predatory mortgage administration activities, which resulted in findings that he was not suitable to be licensed under the Act.

Due to Khanna’s conduct, including the provision of a false name and other information, he has not complied with this requirement for an assessment of his current suitability for licensing. Khanna’s conduct in obtaining his current license provides reasonable grounds for the belief that he has demonstrated an unwillingness to operate in the mortgage industry in accordance with the law or with integrity and honesty and remains unsuitable for licensing.

Khanna has demonstrated a propensity for deceit and poses an imminent risk to his clients and the public more generally. Khanna has not demonstrated that there has been a material change in circumstances from his previous misconduct. Given the nature of Khanna’s past fraudulent conduct there are no lesser alternative measures which will adequately protect the public.

[23] The Grewal defendants referenced numerous paragraphs in the LSO Decision but focused on the conclusions of the LSO that Khanna engaged in dishonest and fraudulent conduct and that McLeod assisted in Khanna’s fraud against mortgagors: LSO decision, at paras. 258-259. The LSO decision sets out the basis for the conclusion that McLeod acted improperly in a number of mortgages and power of sale proceedings and engaged in professional misconduct.

[24] The Court of Appeal for Ontario in Kantoor v. Comparone held, at paras. 4-6:

Meanwhile, in 2017, the Financial Services Tribunal (the “FST”) issued a decision denying [Khanna’s] application for a new mortgage broker’s licence and revoking his company’s mortgage brokerage licence: Metro Financial Planning Limited and Dinesh Khanna v. Ontario (Superintendent Financial Services), 2017 ONFST 4 (the “FST Decision”). As set out in the FST Decision, the allegations were that:

Mr. Khanna engaged in past conduct that affords reasonable grounds for the belief that he will not trade or deal in mortgages in accordance with the law and with honesty and integrity; and that Mr. Khanna provided false information to the Superintendent with respect to his most recent application for a mortgage broker licence.

Following a nine-day hearing, the FST determined that the allegations had been established.

As articulated in its 62-page decision, the FST concluded that [Khanna] and Metro Financial Planning Ltd.’s business model was essentially illegal. [Citations omitted.]

[25] Whether and to what extent I may rely on those decisions is set out in Plate v. Atlas Copco Canada Inc., 2019 ONCA 196, at para. 53, and British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657. The Court in Plate adopted the following statement of Binnie J. at para 7 of Malik:

[A] judgment in a prior civil or criminal case is admissible (if considered relevant by the chambers judge) as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues. It will be for that judge to assess its weight. The prejudiced party or parties will have an opportunity to lead evidence to contradict it or lessen its weight (unless precluded from doing so by the doctrines of res judicata, issue estoppel or abuse of process).

[26] Malik has been applied in the context of final determinations on the merits in subsequent civil proceedings: Plate, at para. 54. Whether a prior civil or criminal decision is admissible in trials on the merits will depend on the purpose for which the prior decision is put forward and the use sought to be made of its findings and conclusions: Malik, at para. 46.

[27] Malik directs that lack of identity of issues goes to weight, not admissibility: at para. 43. In Plate, the fact that the issues in the criminal proceedings were not identical to those in the civil proceeding did not operate as a bar to admissibility of the sentencing judge’s findings: Plate, at para. 58.

[28] The court first determines if the prior decision is admissible: Malik, at para. 48; Plate, at paras. 56-58. The findings in the prior decision must be relevant to the issues raised in this motion: Plate, at para. 58. If the findings in the prior judgment or decision are determined to be admissible, the weight and significance of the findings is to be considered: Malik, at para. 48; Plate, at para 60.

[29] Malik directs that the weight to be afforded to the findings will depend on all the circumstances of each case, including factors such as the similarity of the issues to be decided, the identity of the parties, the nature of the earlier proceedings, the opportunity given to the prejudiced party to contest the previous finding, whether the prior proceedings were criminal or civil (because of the differing burdens of proof), and on all the varying circumstances of particular cases: Plate, at paras. 62 and 70-71; Malik, at paras. 42, 47-48.

[30] The defendants did not participate in the LSO, FST and FSCA hearings. No findings were made with respect to the Property in those hearings. For the purposes of this motion, the referenced decisions demonstrate a propensity of Khanna and McLeod to act in a certain way in mortgage transactions and the enforcement of mortgages. They are evidence of Khanna’s past proclivity for fraudulent conduct in the mortgage industry and McLeod’s willingness to assist in that fraudulent conduct. These conclusions affect the credibility of Khanna and McLeod.

[31] Only Khanna filed an affidavit. There is little substantive evidence in Khanna’s affidavit. I give it little to no weight. The documents attached to his affidavit were assessed based on their source and any other relevant factors.

Should the Default Judgment Be Set Aside?

[32] The Court of Appeal for Ontario in Intact Insurance Company v. Kisel, 2015 ONCA 205, 125 OR (3d) 365, at para. 14, and Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49, addressed the factors the court is to consider when determining whether to set aside a default order or judgment:

a. Whether the motion was brought promptly after the defendant learned of the default judgment;
b. Whether the defendant has a plausible excuse or explanation for the default;
c. Whether the defendant has an arguable defence on the merits;
d. The potential prejudice to the defendant should the motion be dismissed, and the potential prejudice to the plaintiff should the motion be allowed; and
e. The effect of any order the court might make on the overall integrity of the administration of justice.

[33] These factors are not rigid rules. The court must decide whether, in the circumstances of the case, it is just to relieve a defendant from the consequences of default: Kisel, at para. 14; Mountain View Farms, at para. 50. The court's ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order: Mountain View Farms Ltd., at para. 47.

[34] In assessing whether there is an arguable case on the merits, the motion judge must take a “good hard look at the merits” and analyze whether the moving party has established an arguable case. It is not an error to assess credibility at this stage; more is required than self-serving statements devoid of detailed evidence supporting key assertions – “a self-serving affidavit does not create a triable issue in the absence of detailed facts and supporting evidence.”: HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894, at para. 28, leave to appeal refused, [2009] S.C.C.A. No. 33052.

The Motion Was Not Brought Promptly

[35] Varinder deposes that he first learned of the default judgment in October 2019 when he received a letter from the plaintiff’s lawyer enclosing the default judgment. That letter is dated September 26, 2019. It encloses the default judgment and demands payment arrangements satisfactory to the plaintiff be arranged or payment of the default judgment in full by October 11, 2019.

[36] Assuming, without accepting, that the default judgment did not come to the attention of Varinder and Sukhjit until October 2019, they did not move to set aside the default judgement for over two years. The motion was not brought promptly.

The Defendants Do Not Have a Plausible Excuse or Explanation for the Default

[37] With respect to the obtaining of the default judgment, the Grewal defendants assert the claim was not served on them and they were not aware of the default judgment.

[38] The plaintiff has tendered the affidavit of service of Ron Zinkewich. The affidavit states that Mr. Zinkewich served the statement of claim on Sukhjit personally at the Property on July 27, 2012, the day after the claim was issued, and gave her copies of the claim which he sent by mail that same day to Varinder and Nirpal. However, the affidavit states that the claim was mailed to Rajinder on June 27, 2012, which was before the claim was issued. The affidavit of service is dated July 31, 2011. It is stamped on the back as having been received/filed with Hamilton Court Services on February 28, 2013. Considering the affidavit of service in its totality, it appears that the one reference to a June date and the year in the jurat are erroneous dates and likely due to typographical error.

[39] In her affidavit sworn more than nine years after the claim was said to have been served on her, Sukhjit does not deny that she was served with the statement of claim; she deposes that she does not recall ever being served with the claim before she received the plaintiff’s motion to enforce the judgment in April 2021. Similarly, in her cross-examination, Sukhjit states that she did not recall being served with the claim.

[40] The plaintiff has tendered a letter from McLeod to the defendants at the Property dated one day before the default judgment was granted that states that default judgment has now been obtained. It states that a copy of the default judgment was enclosed. This, combined with the LSO’s findings about McLeod, raises some doubt about whether the letter was sent as it purports to have been.

[41] However, it is clear from the evidence that the defendants knew that they had lost the Property. The evidence is clear that Sukhjit signed an agreement of purchase and sale with respect to the Property on March 28, 2012. The Property was sold by Global one year later in March 2013 and the Grewal defendants would have had to move out of the Property. There is no explanation for the defendants’ ownership of the Property coming to an end other than default under a mortgage.

[42] The plaintiff has tendered a letter written by a lawyer for Varinder’s parents dated February 6, 2014. The letter clearly references the second mortgage on the Property. The letter references the sale of the Property by power of sale in March 2013 and seeks an accounting of the sale.

[43] I find, on a balance of probabilities, that the claim was served on Sukhjit on July 27, 2012. I find the claim was served by alternative to personal service on Varinder and that it came to Varinder’s attention. I conclude that the Grewal defendants knew that Global had commenced legal proceedings against them regarding a mortgage and that they lost the Property as a result.

[44] Varinder deposes that when they received the demand in October 2019, he had trouble finding a lawyer because of the six-year delay between the date of the judgment and his desire to move to set aside the default judgment.

[45] Varinder acknowledges he received another letter from the plaintiff’s lawyer in January 2021 with respect to the default judgment and payment. There is no evidence the Grewal defendants took any steps to set aside the default judgment up to this time. Varinder deposes that he was waiting for the outcome of McLeod’s LSO disciplinary hearing.

[46] Varinder deposes that he and Sukhjit were finally able to retain a lawyer after they were served with the plaintiff’s motion to enforce the default judgment in April 2021. The motion to set aside the default judgment was served almost eight months after the defendants received the plaintiff’s motion.

[47] I do not find the Grewal defendants’ explanation for the default and delay persuasive.

The Defendants Do Not Have an Arguable Defence on the Merits

[48] The Grewal defendants do not assert that the Effort Trust second mortgage was not valid. Nowhere in the Grewal defendants’ affidavits do they depose that nothing was owing on the Global mortgage or that they were up to date on their payments. The Grewal defendants have tendered no evidence that the amount that was owing on the second mortgage at the time of default judgment was less than the amount of the default judgment. They have not deposed that they were not in arrears or that they made all payments required to be made on the second mortgage. They have not tendered any evidence of any payments made by them on the Effort Trust second mortgage or to Global at any time. Varinder conceded in submissions that they were likely in arrears at the relevant time. The evidence indicates that the mortgage was in arrears.

[49] The plaintiff has tendered a City of Hamilton Treasurer’s Certificate of Outstanding Realty Taxes with respect to the Property that indicates arrears of over $22,000 as of March 5, 2013. This represented almost three years of unpaid taxes. It is evidence that the defendants were not keeping up with their financial obligations.

[50] That the Grewal defendants were in arrears is also supported by the following documents tendered by the plaintiff:

a. A notice of sale under mortgage from the Effort Trust, which seeks repayment of the principal amount of $80,000 plus interest and administration fees for late/NSF/missed payments. The notice appears to have been prepared in June 2011;
b. A statement of claim issued by the TD Bank against all the defendants seeking payment on the first mortgage and possession of the Property. The claim appears to be dated August 12, 2011; and
c. A notice of sale under mortgage from TD Bank dated October 6, 2011 seeking payment of the principal balance, plus accrued interest of almost $20,000.

[51] The evidence is that the Grewal defendants were residing at the Property when the above documents would have been served on them at the Property.

[52] Varinder deposes that they were not provided with notice of the transfer of the second mortgage from Effort Trust to Global and that he does not recall receiving missed payment notices from Global. The transfer of the second mortgage to Global took place in April 2012 and the statement of claim was issued and served very shortly thereafter in July 2012. When they received the statement of claim, the Grewal defendants would have known that the second mortgage had been transferred to Global.

[53] The plaintiff tendered a statement of account from Global of amounts owing to Global by the Grewal defendants. I place no reliance on it. The amounts in the document are not consistent with the amount claimed in the statement of claim or in the default judgment. Although there is some evidence from Sukhjit that she and Varinder borrowed other monies from Global, there is no evidence from Global explaining the statement or the amounts.

[54] The Grewal defendants also referenced the disputed third mortgage registered on title by Global. It is not the subject of the statement of claim and default judgment.

[55] The Grewal defendants assert that the conclusions reached by the FST and the LSO with respect to Khanna and McLeod’s business practices give their defence “an air of reality.” However, there is no evidence that Khanna or McLeod had any role in the Effort Trust second mortgage and there is no cogent evidence of Khanna’s involvement in the enforcement of the Global mortgage until after the default judgment was assigned to the plaintiff. I address McLeod’s role in the sale of the Property below.

[56] More importantly, the Grewal defendants do not dispute the validity of the second mortgage, or that the money was owing on the second mortgage when it was transferred to Global, or that the second mortgage was in arrears at the time the statement of claim was served, and when the default judgment was obtained. They do not dispute that they owed the amount set out in the default judgment or that Global was entitled to possession of the Property. There is no evidence of any payments made on the second mortgage leading up to the issuing of the claim, or after it was issued and before default judgment was obtained.

[57] The Grewal defendants assert that Khanna’s role in supporting Kantor in pursuing the default judgment violates the Mortgage Brokerages, Lenders and Administrators Act, 2006 and regulations because Khanna was acting as a mortgage administrator without being licenced to do so. Providing an affidavit responding to the motion to set aside a default judgment does not constitute acting as a mortgage administrator. Further, this issue has no bearing on the underlying issue of the validity of the second mortgage and the default judgment.

[58] The Grewal defendants assert fraudulent concealment and non est factum. There is no evidentiary basis to support an assertion that the defendants did not agree to the originating Effort Trust second mortgage. As noted, even if they did not receive notice of the transfer of the second mortgage to Global, which conclusion I do not accept on the evidence, within three months they were served with the statement of claim which would have alerted them to the transfer.

[59] The Grewal defendants have filed a proposed statement of defence. In it, they seek a declaration that no money is owing on the mortgage, but they do not plead that the second mortgage was not in arrears, challenge the amounts owing on the second mortgage as set out in the default judgment, or deny that Global was entitled to possession of the Property.

[60] The Grewal defendants have not established that they have a defence on the merits to the amount owing to Global as set out in the default judgment or to Global’s claim for possession of the Property.

[61] The focus of the Grewal defendants’ defence is that they did not receive notice of the power of sale, an accounting on the sale of the Property, and that the sale of the Property was improvident. They assert that the Property was not properly marketed and that Global did not obtain current appraisals. The Grewal defendants assert that this is consistent with the findings of the LSO as to McLeod’s conduct in the enforcement of mortgages.

[62] There is no evidence that a formal notice of power of sale under mortgage was served on the Grewal defendants or that they were ever provided with an accounting of the proceeds of sale. The plaintiff asserts that the Grewal defendants did not provide Global with a forwarding address when they vacated the Property and so an accounting could not be provided. There is some evidence from the cross-examination of the Grewal defendants that they may not have provided a forwarding address.

[63] The plaintiff has tendered two appraisals dated July 28, 2011, and August 11, 2011, valuing the Property at $605,000 and $630,000 respectively. The copies provided to the court are virtually illegible. Plaintiff’s counsel could not advise for whom the appraisals were prepared. The appraisals predate the transfer of the second mortgage from Effort Trust to Global and were obtained two years before the sale of the Property.

[64] In response to the allegation that the Property was not properly marketed, the plaintiff has tendered a commission statement from Homelife Professionals Realty Inc. (Brokerage) with respect to the sale of the Property.

[65] According to documents filed by the plaintiff, the proceeds of sale went to pay off the TD first mortgage, municipal tax arrears and some legal fees, leaving only $479.30 for Global on account of the second mortgage. A letter from TD Bank indicates that over $603,000 was owing on account of the first mortgage. The documents suggest that, beyond the amount of the deposit, the full commission was not paid to the realtor.

[66] Varinder deposes that the power of sale proceedings commenced by Global were only against him and Sukhjit and that when a buyer was found only he and Sukhjit signed the agreement of purchase and sale. He references the agreement of purchase and sale signed by Sukhjit on March 28, 2012, for $640,000. However, that agreement did not close. The Property sold a year later for the same price with Global as the transferor.

[67] The Grewal defendants do not assert that the sale was to a non arm’s length party.

[68] The Grewal defendants assert the market was trending upward and the Property should have sold for more than it did. They do not tender expert evidence to this effect. To support their position they tender a CBC article from September 2013 and an undated Hamilton real estate price history graph “found on the Internet”. They seek to tender what is essentially expert evidence without complying with the requirements for doing so. This is not admissible evidence.

[69] Without deciding the issue, it is possible the Grewal defendants may have had a claim for improvident sale. However, the possible claim for an improvident sale is not a defence to the mortgage being in arrears for the amount claimed in the statement of claim or at the date of the default judgment and does not undermine the judgment for possession. The impact of an improvident sale is that if the Property had sold for more, the proceeds of sale might have paid down some or all of the default judgment.

[70] The Grewal defendants have another issue, and that is the possible expiry of the limitation period for a claim for improvident sale. If a two-year limitation period applies, as suggested in Ramadhin v. New Venture Group Inc., 2018 ONCA 6, the claim for improvident sale could be statute barred. I make no explicit finding on this issue as it was not fully argued before me.

The Potential Prejudice to the Parties and the Interests of Justice

[71] The Grewal defendants assert that allowing the default judgment to remain in place will cause them hardship and be economically crippling. No evidence of the Grewal defendants’ finances was provided.

[72] The Grewal defendants point to the inordinate delay in enforcing the default judgment. This may be a factor in the ability of the plaintiff to use certain mechanisms under the Rules to enforce the default judgment. It could perhaps affect the plaintiff’s entitlement to interest and the rate of interest. But Global and the plaintiff were not required to enforce the default judgment sooner.

[73] The Grewal defendants assert that the loss of McLeod’s file will impact their ability to have a fair trial. They raise spoliation with respect to the destruction of McLeod’s file. Without an evidentiary basis regarding the loss of the file, the court cannot determine if there is any merit to the allegation. In any event, it does not affect the key factual issue of whether the second mortgage was in default at the relevant time and whether the default judgment should be set aside.

[74] No steps were taken to enforce the default judgment from March 1, 2013 until the initial demand by the plaintiff’s lawyer in October 2019, a period of over six years. No legal process was commenced for almost another two years. It has taken almost another four years to bring the plaintiff’s motion before the court for determination. In these circumstances, the delay on the part of the Grewal defendants in seeking to set aside the default judgment does not prejudice the plaintiff. Moreover, the security has long been sold. On the other hand, the plaintiff took an assignment of the default judgment on the strength of a judgment that had been in place for four years.

[75] Judgments obtained almost 12 years ago should not be lightly set aside. Defendants should not delay moving to set aside a default judgment upon learning of its existence.

Other Issues Raised by the Grewal Defendants in Their Factum

[76] In their factum, the Grewal defendants raise several issues for the first time. With little supporting argument and evidence, the Grewal defendants ask the court to declare Kantor a vexatious litigant per rr. 2.2.02 and 2.2.04. I decline to do so on these facts. The Grewal defendants assert that the statement of claim should be struck out as an abuse of process. They have not established an evidentiary basis for this relief.

The Default Judgment Should Not Be Set Aside

[77] The Grewal defendants’ delay in bringing the motion, lack of a plausible excuse, and absence of a meritorious defence to the action weigh heavily against setting aside the default judgment. Prejudice cuts both ways, weighing somewhat in favour of the Grewal defendants. Considering all the factors and the issues before me, the interests of justice do not favour setting aside the default judgment.

Disposition

[78] The Grewal defendants’ motion is dismissed. The plaintiff’s motion to enforce the default judgment is adjourned without a return date and is returnable on 10 days’ notice to the Grewal defendants.

[79] If the parties cannot resolve the issue of costs, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages, together with excerpts of any legal authorities. The plaintiff’s submissions are to be served by no later than March 24, 2025; the Grewal defendants’, by no later than April 7, 2025.

[80] All submissions are to be filed with the court and uploaded to Case Center, with a copy to the Trial Coordinator by end of day April 7, 2025. If no submissions or written consent to a reasonable extension are received by the court by April 7, 2025, the matter of costs will be deemed to have been settled.

M. Bordin
Released: March 10, 2025