347154 Ontario Ltd v 2465443 Ontario Ltd 2017 ONSC 3396

June 1, 2017

The plaintiff sent numerous letters to the defendant to explain that the defendant had beennoted in default, was precluded from filing a defence and that the landlord would seek defaultjudgment if the tenant did not seek to set aside the noting in default. Given the circumstances of thisnotices to the defendant commencingproceed with this motion, and the lackCourt determined that the motion should, case, and the number of letters, telephone calls andFebruary 2017 regarding the plaintiff's intention toof any response from the defendant until May 30, thisin all of the circumstances, be heard. Based on the evidence before thisCourt, and a perusal of the lease and documents, I am satisfied that the defendant was in defaulton the lease, that the appropriate notice regarding default and intention to pursue claims againstthe tenant pursuant to the lease was provided and that the landlord plaintiff has taken allreasonable steps to mitigate its damages and to lease the premises to a new tenant.


CITATION: 347154 Ontario Ltd. v. 2465443 Ontario Ltd., 2017 ONSC 3396 COURT FILE NO.: CV-16-549471 DATE: 20170601 RE: 347154 Ontario Ltd., PlaintiffAND: 2465443 Ontario Ltd., Defendant BEFORE: Carole J. Brown, J. COUNSEL: Krista R. Chaytor, for the PlaintiffNo one appearing for the DefendantHEARD: May 31, 2017 ENDORSEMENT [1] The plaintiff moves for default judgment in the amount of $84,081.53 arising from anaction for default on a commercial lease. [2] The statement of claim was served June 17, 2016. The defendant was noted in default onJuly 14, 2016. The defendant subsequently served a notice of intent to defend on July 15, 2016 and a statement of defence on August 2, 2016. [3] The plaintiff sent numerous letters to the defendant to explain that the defendant had beennoted in default, was precluded from filing a defence and that the landlord would seek defaultjudgment if the tenant did not seek to set aside the noting in default. It further agreed to set asidethe noting in default on the defendant’s fulfilment of certain conditions. [4] This correspondence was sent on February 10, 2017, and subsequent follow-upcorrespondence was sent March 30, 2017, April 11, 2017 and April 18, 2017. No reply to any of the correspondence was ever received and the defendant did not agree to fulfil any of theconditions set forth in the plaintiff’s correspondence of February 10, 2017, which indicated thatit would be prepared to set aside the noting in default on fulfilment of such conditions by thedefendant. [5] A Notice of Motion was served on the defendant on April 18, 2017 as evidenced by theaffidavit of service produced in Court. Telephone messages were left at the defendant tenant’stelephone number on April 19, 20 and 21, 2017, again indicating the plaintiff landlord’s intentionto bring this motion for default judgment. The Motion Record was served on May 16, 2017,again as evidenced by an affidavit of service provided to the Court. No response was received SUPERIOR COURT OF JUSTICE - ONTARIO - Page 2 - [6] Ms. Chaytor advised the Court that she had received a letter by facsimile on May 30,2017 at 18:34 advising that the defendant had not received the motion record until May 28,would not be present in Court on May 31 and requesting an adjournment. I reviewed thecorrespondence sent. [7] Given the circumstances of thisnotices to the defendant commencingproceed with this motion, and the lackCourt determined that the motion should, case, and the number of letters, telephone calls andFebruary 2017 regarding the plaintiff’s intention toof any response from the defendant until May 30, thisin all of the circumstances, be heard. [8] The plaintiff has provided a significant volume of documentation evidencing thecommercial tenant’s defaults pursuant to the lease, as set forth in the supporting affidavit of thepresident of the plaintiff and the exhibits attached thereto. Based on the evidence before thisCourt, and a perusal of the lease and documents, I am satisfied that the defendant was in defaulton the lease, that the appropriate notice regarding default and intention to pursue claims againstthe tenant pursuant to the lease was provided and that the landlord plaintiff has taken allreasonable steps to mitigate its damages and to lease the premises to a new tenant. Based onthose efforts to mitigate, the plaintiff was able to secure a new tenant, with a new lease commencing August 1, 2016, with basic rent payable from October 1, 2016. Based on the leaseprovisions, the evidence of the defendant’s defaulting on the lease, the amounts not paid by thetenant regarding expenses and costs and the difference between the original basic rent and thenew rent for the remainder of the original term, less the amounts received as a result of thesecuring of a new tenant, all as set forth in the calculation of amounts owing at Tab 2 V of theMotion Record, I am satisfied that the plaintiff’s claim for $84,081.53 is owing by the defendant. [9] The plaintiff also seeks its costs of the action and this motion in the amount of $14,931.62, inclusive of disbursements and HST, which I grant. [10] I grant default judgment in the amount of $84,081.53 and costs of $14,931.62, payable bythe defendant to the plaintiff. Default Judgment to go as signed. Carole J. Brown, J. Date: June 1, 2017 regarding any of the correspondence forwarded to the defendant nor to the telephone messagesleft. No response from the defendants was heard as regards the Notice of Motion or the MotionRecord. No one appeared in Court on behalf of the defendant today.