CITATION: 1057150 Ontario Limited v. Abraham, 2008 ONCA 251

DATE: 20080407

DOCKET: C47669

COURT OF APPEAL FOR ONTARIO

FELDMAN, BLAIR and ROULEAU JJ.A.

BETWEEN:

1057150 ONTARIO LIMITED

Plaintiff (Respondent)

and

EUGENE EDWARD ABRAHAM (also known as TED ABRAHAM), 1353025 ONTARIO INC., 1499478 ONTARIO INC., 889554 ONTARIO INC. (c.o.b. MINK CREEK DEVELOPMENTS), 1232235 ONTARIO LIMITED, 1663859 ONTARIO INC., 1662704 ONTARIO INC., 1277808 ONTARIO LIMITED and VENTURE MORTGAGE AND LOANS INC.

Defendants (Appellants)

Ian McLean for the appellant

Todd Lever for the respondent

Heard and endorsed: April 4, 2008

On appeal from the order of Justice Norman Karam of the Superior Court of Justice dated August 17, 2007.

APPEAL BOOK ENDORSEMENT

[1] Karam J. dismissed the motion to set aside the default judgment on the promissory note on the basis that there is no realistic or valid defence on the merits. He was satisfied that the reason for the default in filing a defence was satisfactorily explained and that there was no delay in moving to set aside the default judgment. We agree with Karam J. on all three points.

[2] We have also considered the balance of prejudice. As there is no valid defence and no monthly payments were made including on post-dated cheques tendered by the appellant before the default judgment, we are satisfied that the balance of prejudice clearly favours the respondent. Mr. Abraham was given ample opportunity by Karam J. to put forward evidence of a defence including an adjournment and no valid defence was put forward. Now, a year after the default, there is no evidence of any payment having been made.

[3] The appeal is therefore dismissed with costs to the respondent of $5,000 inclusive of disbursements and GST.