Court of Appeal for Ontario

CITATION: Cheek v. Vanden Berg, 2012 ONCA 285

DATE: 20120501

DOCKET: M40683

Feldman, Blair and Hoy JJ.A.

BETWEEN

Ralph Cheek and Consorcia Cheek, by their litigation guardians, Lyndon Ferareza and Nancy Ferareza

Plaintiffs (Responding parties/Respondents)

and

Shirley Vanden Berg and Hans Rosenthal

Defendants (Moving parties/Appellants)

Warren A. Lyon, for the moving party

Benjamin D. Eisner, for the responding parties

Heard: February 13, 2012

On a motion to review the order of Doherty J.A. dated November 7, 2011.

ENDORSEMENT

[1] The moving party, Ms. Vanden Berg, seeks to review the order of Doherty J.A. dated November 7, 2011, denying her motion for an extension of time to appeal the order of Spence J. dated March 11, 2011 where he refused to set aside the order for default judgment dated June 29, 2010. Ms. Vanden Berg also moves to set aside the order of Himel J. dated April 27, 2011 whereby she refused to review the decision of Spence J.

[2] On June 29, 2010, the responding parties obtained default judgment against Ms. Vanden Berg for the sale of mortgaged property based on default. Ms. Vanden Berg moved to set aside the default judgment on March 11, 2011, but the motion was denied by Spence J. on the basis that Ms. Vanden Berg had not moved promptly to set aside the default judgment once she learned about it in October 2010, and in any event, there was no defence on the merits as the mortgages were in default.

[3] Ms. Vanden Berg then moved for an emergency motion before Himel J. to review the order of Spence J. Himel J. held that the matter was res judicata and that Ms. Vanden Berg’s remedy was to appeal the order.

[4] Ms. Vanden Berg then filed a notice of motion on October 27, 2011 for an order extending the time to appeal from those orders. Doherty J.A. dismissed the motion on November 7, 2011. In his endorsement, he observed that Master McAfee had approved the sale in September 2011 and that the sale had been completed. He found that there was no basis to extend the time to appeal the order of Spence J., which was the order Doherty J.A. understood to be central. Nor was there any basis on which the moving party could succeed on an appeal of the order of Spence J.

[5] We see no error in the reasoning or the conclusion reached by Doherty J.A. Ms. Vanden Berg claims she was not properly served. However, Spence J. refused to set aside the default judgment because Ms. Vanden Berg had not moved promptly after learning of the judgment. There is no basis to set aside that decision. Nor did the applicant seek to appeal that judgment to this court in time. Since the property has already been sold, the justice of the case also does not require that an extension be granted so that an appeal in this matter can proceed. The report on the reference dated October 31, 2011 contains an accounting of the proceeds of the sale.

[6] The motion to review the decision of Doherty J.A. is dismissed with costs fixed at $1,000 inclusive of disbursements and H.S.T.

Signed: “K. Feldman J.A.”

“R. A. Blair J.A.”

“Alexandra Hoy J.A.”