COURT FILE NO.: 50/09
DATE: 20091021
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
L-JALCO HOLDINGS INC.
Plaintiff
(Appellant)
- and -
DOMENICO MARINO and MAURIZIA MARINO
Defendants
(Respondents)
Frank P. Oster, for the Appellant
Gregory M. Sidlofsky, for the Respondents
HEARD at Toronto: October 21, 2009
janet wilson J.: (Orally)
[1] The appeal from the order of Master Peterson dated December 12, 2008 is dismissed.
[2] The parties acknowledge that the standard of review of the Master’s decision is as outlined in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 and Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), aff’d (2009), 2009 ONCA 415, 307 D.L.R. (4th) 218 (Ont. C.A.).
[3] The appellant sought to re-open a final judgment of foreclosure granted some three years earlier, and sought to add the request to seek a reference. The foreclosure judgment was granted with the consent of the mortgagors. The mortgagee, by the terms of the foreclosure judgment, elected not to request a reference.
[4] The Master refused to re-open the foreclosure proceeding. He considered the issue of consent. Consent judgments should not be set aside. See Monarch Construction Ltd. v. Buildevco. Ltd. (1988), 26 C.P.C. (2d) 164 (Ont. C.A.).
[5] He considered as well the delay in seeking to re-open this matter, the prejudice to the mortgagors, and the intervening proceedings before Perell J. It was appropriate for him to consider these contextual factors in determining whether it was appropriate to re-open the foreclosure judgment in this case.
[6] There is no reason to doubt the correctness of the Master’s decision. He considered the correct legal principles and determined within his discretion that in the facts of this case it would not be appropriate to re-open the foreclosure judgment.
[7] I agree with his decision. The appeal is therefore dismissed.
COSTS
[8] Costs payable by the appellant in the amount of $4,500.00.
JANET WILSON J.
Date of Reasons for Judgment: October 21, 2009
Date of Release: November 10, 2009
COURT FILE NO.: 50/09
DATE: 20091021
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
L-JALCO HOLDINGS INC.
Plaintiff
(Appellant)
- and -
DOMENICO MARINO and MAURIZIA MARINO
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: October 21, 2009
Date of Release: November 10, 2009