2013 ONSC 7220, 2013 ONSC 7220

CITATION : NEMCSOK v. BOUCHARD, 2013 ONSC 7220 COURT FILE NO.: 5234/10 DATE: 20131121 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) MICHAEL NEMCSOK and EVELYNE NEMCSOK ) ) ) Lisa A. Neil, for the Plaintiffs ) Plaintiffs ) ) - and - ) ) ) WILFRID BOUCHARD and FRANÇOISE BOUCHARD, WILFRID BOUCHARD LOGGING LTD. W.F.B. FARMING INC. ) ) ) Unrepresented ) Defendents ) ) ) ) D E C I S I O N O N M O T I O N F O R D E F A U L T J U D G M E N T WILCOX, J. [ 1 ] The Plaintiffs issued a Statement of Claim on June 25, 2010.

The Defendants responded with a Statement of Defence dated November 24, 2010 which was struck by order dated February 13, 2013. The Defendants were then noted in default. The Plaintiffs now move for default judgment for unliquidated damages under Rule 19.05. [ 2 ] The Statement of Claim alleges that the Plaintiffs purchased a farm with buildings including a residence on it from the Defendants, Wilfrid Bouchard Logging Limited and W. F. B. Farming Inc. on or about January 25, 2008.

In doing so, they relied on representations made by the defendants Wilfrid Bouchard and Françoise Bouchard who were the officers, co-owners and directing minds of the defendant corporations. Following the purchase, the Plaintiffs discovered major problems with and deficiencies in the property

which are outlined in the Statement of Claim. These involved the construction of the garage, the function of the septic system, leakage into and mold in the residence, unsafe well water, infertile soil, fewer total acres than alleged and fewer acres of both tiled and of workable land. The Defendants allegedly made misrepresentations regarding these or actively concealed them.

As a consequence of the problems and deficiencies, the Plaintiffs lost the full use and enjoyment of the property, have expended money, time and labour in trying to remedy them, have suffered losses of farming income, have had their lives disrupted and have suffered a loss of value in the property.

The Plaintiffs claimed that their problems and losses resulted from the Defendants’ negligent misrepresentations and active concealment of defects and deficiencies, leading to the purchase, and/or breach of contract, and claim damages therefore. [ 3 ] Because the Statement of Defence has been struck, the Defendants are deemed to admit all allegations of fact in the Statement of Claim (Rule 25.07(2)). However, the amount of damages is deemed to be an issue (Rule 25.07(6)). [ 4 ] Rule 19.05(1) to (3) states as follows:

(1) Where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed.

(2) A motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages. O. Reg. 131/04, s. 11.

(3) On a motion for judgment under subrule (1), the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented. [ 5 ] The affidavits of the Plaintiffs and their lawyer, Lisa Neil, with exhibits, were filed in support of the motion for judgment. [ 6 ] The affidavits show the Plaintiffs sold the property in 2012 for $300,000 with full disclosure of the defects, although the realtor had placed its fair market value at $450,000 and listed it for that.

This was despite the Plaintiffs having incurred costs of $55,600 to address some of the problems and deficiencies, plus $12,000 worth of their own labour. The Plaintiffs also claim $15,000 for loss of the use and enjoyment of the home, and $25,000 in aggravated damages.

There being no evidence to the contrary, I would fix damages as follows: - loss of value in the property $150,000 - out of pocket expenses $55,600 - labour $12,000 - loss of use and enjoyment of the property $15,000 Total $232.600 There shall therefore be judgment against the Defendants, jointly and severally, in favour of the Plaintiffs, for that amount. The Plaintiff also sought aggravated damages, but I am not persuaded that this is a proper case for those. [ 7 ] RE: COSTS [ 8 ] The Plaintiffs are presumptively entitled to their costs. Their counsel filed a Bill of Costs.

The Plaintiffs made offers to settle starting in March, 2012. All were for substantially less than this judgment is. The Defendants counteroffered for much less than the Plaintiffs’ offer. Therefore, the Defendants, jointly and severally, shall pay forthwith to the Plaintiffs costs as follows: - partial indemnity costs to June, 2012, including HST $7,500.00 - substantial indemnity costs from June, 2012, plus HST $4,600.00 - disbursements, including applicable HST $974.35 Total costs $13,074.35 ___________________________ Justice James A. S. Wilcox Released: November 21, 2013