COURT FILE NO.: 123/09
DATE: 20090622
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ANH NGOC LUU and HUONG NGOC LUU
Appellants/Plaintiffs
- and -
BING THAI, IVANNE NGO a.k.a. IVANNE (NGO) THAI , MINGO CONSTRUCTION RENOVATION COMPANY LTD., 1420465 ONTARIO INC., RAYMOND KELLY and RAYMOND BRICK LAYER ONTARIO INC.
Respondents/Defendants
Christopher J. Thiesenhausen, for the Appellants/Plaintiffs
Tina K. Lee, for the Respondents/ Defendants
HEARD at Toronto: June 22, 2009
janet wilson J.:
[1] This is a motion by the appellants/plaintiffs for leave to appeal the Order of the Harvison Young J. made December 11, 2008 setting aside the January 22, 2007 default judgment of Low J. (the “Judgment”) against the respondent/defendant Ivanne Ngo (Ivanne).
[2] The motions court judge refused to set aside the Judgment against the defendants Bing Thai ( Bing), or against the corporate defendants Mingo Construction Renovation Company Ltd. (“Mingo.”) and 1420465 Ontario Inc. (“142 Inc.”).
[3] The individual defendants Bing and Ivanne are common law spouses. The action arose as a result of renovations that the plaintiffs alleged were improperly performed on their home by Bing through his companies Mingo and 142 Inc.
[4] The plaintiffs allege that the work on the foundation, the structure, electrical, plumbing and heating systems installed in the plaintiffs’ home was defective and negligently performed. A settlement was reached, and Bing, Mingo and 142 Inc. defaulted on the settlement. Hence the Judgment was granted.
The Decision
[5] The motions court judge concluded that Ivanne had established the prerequisite elements of Rule 19.08 of the Rules of Civil Procedure justifying an order setting aside the Judgment.
[6] The appellants argue that the motions court judge erred in setting aside the Judgment against Ivanne, as she had been personally served with a Statement of Claim. She therefore found out that Bing, her spouse had taken steps without her knowledge involving her in the corporation. As a result of this knowledge, the plaintiffs argue that Ivanne should have been more vigilant in protecting her interests in this lawsuit. She should not have relied on Bing’s assurances that he would be responsible for all issues with respect to the law suit.
[7] Respectfully, this was not the conclusion of the motions court judge. Ivanne established to the satisfaction of the motions court judge that her default was unintentional, and that there were valid reasons for default. Ivanne also provided evidence that she moved promptly to set aside the default judgment once she became aware of the situation.
[8] The motions court judge reasonably reached the conclusion with respect to Bing that he knew of the action, took no steps and he had not met the test in rule 19.08 of the Rules of Civil Proceedure. She refused to set aside the default judgment against Bing and the two companies.
Test for Leave to Appeal
[9] I conclude that neither branch of Rule 62.02(4)(a) or (b) engages. There are no conflicting cases making it desirable for the Divisional Court to clarify issues raised. There is no reason to doubt the correctness of the motions court judge’s decision. Her conclusions are reasonable and supported by the evidence before her. This is a discretionary decision requiring deference. There are no public policy matters of importance raised.
[10] For these reasons the motion for leave to appeal is dismissed.
[11] Costs fixed payable by the appellant/plaintiffs to the respondent/defendant Ivanne in the amount of $1500.00 inclusive of GST and disbursements, payable within 60 days.
JANET WILSON J.
Date of Release: June 26, 2009
COURT FILE NO.: 123/09
DATE: 20090622
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ANH NGOC LUU and HUONG NGOC LUU
Appellants/Plaintiffs
- and -
BING THAI, IVANNE NGO a.k.a. IVANNE (NGO) THAI , MINGO CONSTRUCTION RENOVATION COMPANY LTD., 1420465 ONTARIO INC., RAYMOND KELLY and RAYMOND BRICK LAYER ONTARIO INC.
Respondents/Defendants
REASONS FOR JUDGMENT
JANET WILSON J.
Date of Release: June 26, 2009