CITATION: Ellinger v. ACCL Group, 2013 ONSC 5985
DIVISIONAL COURT FILE NO.: 403/13
DATE: 20130920
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MARION ELLINGER
Plaintiff
(Respondent)
– and –
A.C.C.L. GROUP O/A ANDY CROWN COMPANY LIMITED, ACCL GROUP LTD., HENRY ONWUACHU and ACTION ROOFING CO.
Defendants
(Moving Parties)
James R, Olchowy, for the Plaintiff (Respondent)
Henry Onwuachu, In Person
HEARD at Toronto: September 20, 2013
aston j. (ORALLY)
[1] This is a motion by Henry Onwuachu to extend the time for appeal in a Small Claims Court action. The default judgment was first granted in July 2012 and the defendant knew of it by August 2012 at the latest. He obtained an order in the absence of the plaintiff setting that default judgment side. That order in turn was reversed in December 2012 and the default judgment restored. In that decision, the court also ordered that any Settlement Conference that had been ordered previously, be cancelled or rescinded.
[2] The defendant then moved to set aside the December order. He had arrived late and that order had been made in his absence. However, I note that he did not file any responding material on that motion. To give the defendant the benefit of any doubt on this point, about when the time starts to run, I am prepared to say that the time for appeal did not start to run until February 2013 when the Small Claims Court definitively told him that it would no longer entertain any jurisdiction to deal with the issue, and that his only remedy would be an appeal to the Divisional Court.
[3] The defendant says that he intended to appeal to this Court right away but there is no evidence before me to substantiate that. When he got a notice of a Settlement Conference from the Small Claims Court (in or around mid-March he says) that would coincide roughly with the time of his deadline for an appeal. He says that when he got that he thought that the appeal was not necessary because the Small Claims Court would address the matter. That is very difficult to accept, given the fact that he was aware that in December, the Small Claims Court itself had rescinded the previous order for any further Settlement Conference and the February order had made it plain that the Small Claims Court had no ongoing jurisdiction.
[4] This stretches credibility, it seems to me. So do other aspects of the defendant’s evidence. Just to point to one example, there is the question of costs ordered to be paid by the four defendants at the September 2011 Settlement Conference.
[5] The defendant’s affidavit in support of this motion states that Andy Crown, one of the other defendants, mailed the cheque for the costs to the plaintiff’s former lawyer, though the order had required the payment to be made into Court.
[6] The former lawyer did an affidavit in response on this motion and says categorically that no cheque was never received. When I asked the defendant why there was no evidence from Andy Crown about the cheque being sent, to contradict what the plaintiff’s former lawyer said, he now says that he himself mailed the cheque. He also says that that cheque is attached to his affidavit, but it is not, and frankly I just don’t believe him on this.
[7] I find that there is no reasonable explanation for the delay. Moreover, and more importantly, even now there is no evidence to show the defendant has a defence – none whatsoever. The material on this motion does not identify, even as an allegation much less the supporting evidence, any error of fact or law in the court below. This 82 year old plaintiff should not be delayed any longer in her claim. The defendant has not even paid the various costs ordered against him.
[8] The defendant has failed to meet the test for an extension of time and the motion is dismissed.
[Submissions on Costs]
[9] I have endorsed the back of the Motion Record, “For oral reasons given and recorded, the defendant Henry Onwuachu’s motion to extend the time for appeal is dismissed. The Moving Party (defendant) is to pay costs of the motion fixed at $2,500.00 all inclusive.”
ASTON J.
Date of Reasons for Judgment: September 20, 2013
Date of Release: October 8, 2013
CITATION: Ellinger v. ACCL Group, 2013 ONSC 5985
DIVISIONAL COURT FILE NO.: 403/13
DATE: 20130920
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON J.
BETWEEN:
MARION ELLINGER
Plaintiff
(Respondent)
– and –
A.C.C.L. GROUP O/A ANDY CROWN COMPANY LIMITED, ACCL GROUP LTD., HENRY ONWUACHU and ACTION ROOFING CO.
Defendants
(Moving Parties)
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: September 20, 2013
Date of Release: October 8, 2013