CITATION:
Chegancas
v.
Lukezic
, 2011
          ONCA 391

DATE: 20110520

DOCKET: C53123

COURT OF APPEAL FOR ONTARIO

Rosenberg, Lang and Watt JJ.A.

BETWEEN

Arcanjo

Chegancas

Plaintiff (Respondent)

and

Marija

Majda

Lukezic
, James Joseph
Lukezic
,
          Walker Hall Winery Ltd. and Walker Hall Holdings Ltd.

Defendants (Appellants)

James Joseph
Lukezic
, in person for
          the appellants

Mitchell Rose, for the respondent

Heard:
May 17, 2011

On appeal from the order of Justice
          Joseph W. Quinn of the Superior Court of Justice, dated December 9, 2010.

ENDORSEMENT

[1]

The appellants appeal the
    motion judges decision dismissing their motion to set aside the default
    judgment that formed the foundation for the writ of possession.
[1]
The appellants also move for a stay of the
    execution of the writ of possession.

[2]

As the motion judge observed, the appellants offered the
    motion court no plausible explanation for their significant delay in moving
    to set aside the default judgment.  On
    appeal, the appellants material continues to offer no plausible
    explanation.  Nonetheless, in argument, Mr.
Lukezic
tried to advance information about an alleged
    forbearance agreement that was not contained in the record before the court on
    the hearing of the motion.

[3]

Mr.
Lukezic
acknowledges this is so,
    but characterizes his affidavit simply as a bit incomplete.  Mr.
Lukezic
concedes that he understood the importance of bringing a motion for fresh
    evidence before this court if he wanted to introduce further evidence.  However, he says he was busy with other court
    matters and could not do so.   When asked
    about this, Mr.
Lukezic
suggested that an adjournment
    be granted so that he could expand on the evidence before this court.

[4]

In our view, even if such an adjournment were granted, the
    proposed fresh evidence would fail the
Palmer
test because the evidence was available at the time the motion was argued.  As well, the new evidence could have been
    properly presented to this court had the appellants brought a timely motion to
    admit fresh evidence.  Moreover, the only
    admissible evidence about the alleged forbearance agreement (to provide wine in
    exchange for forbearance on the mortgages) came on behalf of the
    respondents.  Their affidavit offered an
    explanation of the circumstances under which the wine was provided.  The appellants did not attempt to file
    material responsive to that explanation or to cross-examine on the particular
    affidavit.

[5]

In addition, it appears that the appellants have made no
    successful effort to refinance since August 2010, when they say they first
    learned of the respondents intention to enforce possession.  In all the circumstances of this case, it
    appears that todays request for an adjournment is simply another attempt to
    delay the inevitable.

[6]

In our view, on the basis of the material before him, it was
    open to the motion judge to dismiss the motion.  He was entitled to conclude that the appellants had not met the
    applicable test.  We see no basis to
    interfere with his determination.  Accordingly,
    the appeal is dismissed.

[7]

We dispense with the approval of the appellants to the form
    of the order dismissing the appeal.  Execution
    of any writ of possession shall be stayed until June 17, 2011.

[8]

The respondents are entitled to costs of the appeal as well as costs of
    the motion, which we fix at a total of $9,000.00, including disbursements and
    applicable taxes.

M. Rosenberg J.A.

S.E. Lang J.A.

David Watt J.A.

[1]
The parties agree that this appeal applies to
    the default judgment and writ of execution entered in Superior Court files
    numbered 51909/10 and 51910/10.


CITATION:
Chu v. Chang, 2011 ONCA 389

DATE: 20110518

DOCKET: C51649

COURT OF APPEAL FOR ONTARIO

Rosenberg, Lang and Watt JJ.A.

BETWEEN

Lily
          Man-Lee Chu, in her personal capacity and in her capacity as

Attorney for property and for
          personal care of How Seem Chang

Applicant (Appellant)

and

Kin
          Kwok Chang, Kin Wah Cheung, Kin Keung Chang, Man Ying Lam,

Man Yee Wu, also known as Peggy
          Wu, and Chunmei Chen

Respondents (Respondents in Appeal)

Lily Man-Lee Chu, acting in person

Newton Wong, for the respondents

Heard: May 16, 2011

On appeal from the order of Justice
          David M. Brown of the Superior Court of Justice, dated January 12, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant, who is self-represented, did not pursue any argument
    about service, or any deficiency in service, of the cross-motion.  In any
    event, in our view, based on the record, any deficiency in service amounts at
    most to an irregularity in the circumstances of this case.  We also observe
    that the appellant did not take the opportunity to move before the motion judge
    to set aside the order under the
Rules of Civil Procedure
on the basis
    of deficient service.

[2]

On the merits of the appeal, the appellant pursued an argument that the
    motion judge erred in his findings of fact that formed the foundation for his
    decisions regarding the care of and access to How Seem Chang.  However, the
    appellant has failed to persuade us of any palpable and overriding factual
    error made by the motion judge.  We observe that the issue before the motion
    judge was the interests of How Seem Chang and not the interests of the
    appellant.

[3]

Accordingly, the appeal is dismissed, with costs fixed at $5,000,
    inclusive of disbursements and applicable taxes.


CITATION:
D.D. Acquisitions
          Ltd. v. 2207889 Ontario Inc., 2011 ONCA 357

DATE: 20110505

DOCKET: C52988

COURT OF APPEAL FOR ONTARIO

Rosenberg, Simmons and Blair JJ.A.

BETWEEN

D.D. Acquisitions Ltd.

Plaintiff (Respondent)

and

2207889
          Ontario Inc., 2100883 Ontario Inc.,

formerly known as D.D. 4210 King Ltd. and Robert
          Eilers

Defendants (Appellants)

Trent Morris, for the defendants/appellants

John D. Campbell, for the plaintiff/respondent

Heard: May 4, 2011

On appeal from the order of Justice Edward P. Belobaba of the
          Superior Court of Justice dated October 20, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks to set aside the partial summary judgment granted by
    Belobaba J. on a $400,000 promissory note given by the appellant purchaser to
    the respondent vendor on the closing of a real estate transaction.  The
    parties contract gave the purchaser the right to set-off claims for losses
    and/or damages incurred as a result of certain breaches by the vendor.  In this
    case, the appellant sought on the motion to set-off six discrete claims against
    the promissory note.  Two were conceded and the motion judge permitted them to
    go to trial and granted summary judgment on the Note for the balance remaining
    of $391,620.45 (including interest).

[2]

The appellant contends that the motion judge erred in failing to give
    effect to the set-off claims and by failing to stay collection on the claim on
    the Note pending disposition of the counterclaim, which is to proceed to trial.

[3]

We do not agree.

[4]

We observe first, that the motion judge was not asked to dismiss any
    defence claims and that the motion for summary judgment dismissing the
    counterclaim was not pursued before Belobaba J.

[5]

Secondly, we see no basis for interfering with the motion judges
    findings that there were no genuine issues for trial with respect to the
    discrete claims argued before him for purposes of set-off.  He properly
    declined to deduct those amounts (except the two conceded items) from the
    amounts owing on the promissory note for purposes of judgement on that claim.

[6]

Finally, we are not prepared to interfere with the motion judges
    decision not to stay enforcement of the promissory note judgment pending trial
    of the counterclaims, which is proceeding on an expedited basis.  While the
    motion judge did not analyse this question in detail, it is a fair inference
    from his decision that he considered the particular claims being asserted
    before him by the appellant to be weak, but was not prepared to preclude the
    appellant from pursuing them by way of counterclaim  particularly, since he
    was not being asked to dismiss any claims being asserted in the counterclaim.
    Given that, together with his finding that there were no genuine issues for
    trial in fact for the specific claims asserted by the appellant, we see no
    error in the exercise of his discretion not to stay enforcement of the
    promissory note pending disposition of the counterclaim.

[7]

The appeal is therefore dismissed.

[8]

The respondent is entitled to its costs of the appeal, fixed in the
    agreed amount of $15,000 inclusive of all taxes and disbursements.


RÉFÉRENCE:
Ethier c. Cyr, 2011
          ONCA 387

DATE: 20110518

DOSSIER: C51160

COUR DAPPEL DE LONTARIO

Les juges Weiler, Rouleau et Karakatsanis

ENTRE

Anne Ethier

Intimée

et

Marc Cyr

Appelant

Marc Cyr,
          lappelant

Michèle Labrosse pour lintimée

Audience:
le 6 mai 2011

En appel de la
          décision du juge Bernard J. Manton de la Cour supérieure de justice de
          lOntario datée le 22 septembre 2009.

INSCRIPTION

[1]

La question centrale au procès était de savoir
    si le chalet que lappelant avait reçu de son père était un foyer conjugal.  La
    preuve présentée par lintimée au procès démontrait que la famille utilisait le
    chalet de façon régulière lété et de façon périodique durant lhiver.  Le juge
    de procès a rejeté la preuve contraire de lappelant indiquant que lusage
    nétait que périodique.  Nous notons aussi que les conjoints ont emprunté de
    largent pour acheter leur foyer principal et le chalet a servi de bien grevé
    pour ceci.  Pour sa part, lintimée a utilisé une partie dun don reçu de son
    père pour repayer ce prêt.  La détermination du statut du chalet était donc une
    question de fait et nous ne décelons aucune erreur de fait ou de droit dans les
    motifs et conclusion du juge selon lequel le chalet en question constituait, en
    droit, un foyer conjugal.  Une preuve abondante a été présentée à lappui.

[2]

En ce qui a trait aux motocyclettes, le juge a
    rejeté la preuve de lappelant qui prétendait ne pas être propriétaire des
    motocyclettes et a fixé la valeur de celles-ci à 27,000 $.  À notre avis, il y
    avait un fondement suffisant au dossier à lappui et aucune erreur de la part
    du juge.

[3]

Finalement, sur la question des dépens, ceci
    était à la discrétion du juge et vu loffre de transaction, les dépens à
    léchelle dindemnités substantielles étaient justifiés.

[4]

Pour ces motifs, lappel est rejeté.  Les dépens
    de lappel sont accordés à lintimée fixés à 9,000 $ y compris les débours
    et les taxes.

« K.M.
    Weiler j.c.a. »

« Paul
    Rouleau j.c.a. »

« Karakatsanis
    j.c.a. »


CITATION:
Ketelaars v. Ketelaars, 2011
          ONCA 349

DATE: 20110504

DOCKET: M39888, C52114 & C52115

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Blair and Epstein JJ.A.

BETWEEN

Beverley Maria Ketelaars

Applicant (Respondent in Appeal)

and

William Peter Ketelaars

Respondent (Appellant)

Michael J. Stangarone and Vanessa Lam for the appellant

D. Smith for the respondent

Heard & released orally:
April 29, 2011

On appeal from the orders of Justice C. William Hourigan of
          the Superior Court of Justice dated March 4, 2010 and of Justice Sandra Coats
          of the Superior Court of Justice dated April 22, 2010.

ENDORSEMENT

[1]

Mr. Ketelaars seeks to appeal the order of Hourigan J.,
    dated March 4, 2010 granting Mrs. Ketelaars judgment following an uncontested
    trial.  The trial was uncontested because
    Mr. Ketelaars statement of defence had been struck for failure to comply with various
    disclosure obligations.  He has not
    appealed the order striking out his statement of defence.

[2]

He also seeks to appeal a vesting order granted by
    Coats J. on April 22, 2010, in the same uncontested proceeding.

[3]

Both of these orders are in the nature of default
    orders.

[4]

The respondent moves to quash the appeal.  Two issues arise in connection with
    this.  The first relates to the
    appellants alleged continued failure to disclose and to comply with support obligations.  The second relates to the jurisdiction of
    this Court to hear the appeal.

[5]

It is not necessary to deal with the compliance issue,
    because, as this Court has said, an appellant from such an order must exhaust
    his [or her] remedies in the court of first instance before an appeal lies to
    this Court:
Silvonen et al, Trustees of
    the Estate of Halow v. Halow, Sr.
(2002), 59 O.R. (3d) 211 (C.A.) at para
    7.  There are procedures available in the
    Superior Court to change, vary or set aside such a default order.  To the extent
Gray v. Rizzi
, 2010 CarswellOnt 7120 (S.C.J) suggests to the
    contrary, we disagree.

[6]

Accordingly, the appeal is quashed, without prejudice
    to the appellants right to pursue whatever remedies may be open to him in the
    Superior Court.

[7]

Costs to the respondent are fixed in the amount of
    $20,000 inclusive of applicable taxes.

D. OConnor A.C.J.O.

R.A. Blair J.A.

Gloria Epstein J.A.