Court File and Parties

CITATION: Pomeroy v. Home Trust Company, 2009 ONCA 816

DATE: 20091120

DOCKET: C50708

COURT OF APPEAL FOR ONTARIO

Gillese, Blair and MacFarland JJ.A.

BETWEEN

Graham Pomeroy

Appellant

and

Home Trust Company

Respondent

Graham Pomeroy, appellant appearing in person

A. Jackson, for the respondent

Heard: November 17, 2009

On appeal from the judgment of Justice E. Fedak of the Superior Court of Justice, dated June 9, 2009.

APPEAL BOOK ENDORSEMENT

[1] Mr. G. Pomeroy today seeks to introduce new evidence. It is too late. The proper time to introduce that evidence was before the motion judge. The motion was originally returnable on May 14, 2009. At the request of Mr. G. Pomeroy – made through his brother – the hearing of the motion was adjourned to June 9, 2009, expressly on the basis that it was peremptory on Mr. G. Pomeroy “with or without a lawyer.” Mr. G. Pomeroy was not in attendance on June 9, 2009, due to ill health. However, he did not file any responding materials, something within his power to have done.

[2] As a consequence, the motion judge was left with the uncontroverted evidence of the moving party. Today, G. Mr. Pomeroy acknowledges he was in default and that the motion judge made no error. The motion judge was entitled to make the order that he did.

[3] As there is no error in the order under appeal, the appeal is dismissed with costs to the respondent fixed at $5649.63, all inclusive.