CITATION: Hair and Wigs Company Inc. v. Lai, 2015 ONSC 1059
DIVISIONAL COURT FILE NO.: 578/14
DATE: 20150217
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
HAIR AND WIGS COMPANY INC.
Plaintiff
(Respondent)
– and –
JUNG-HSIEN LAI
Defendant
(Appellant)
Joseph Markin, for the Plaintiff (Respondent)
Spencer F. Toole, for the Defendant (Appellant)
HEARD at Toronto: February 17, 2015
LEDERMAN J. (ORALLY)
[1] The appellant, Jung-Hsien Lai moves for a stay pending appeal of the Order of the Small Claims Court Judge, refusing to set aside his judgment at trial. The appellant also seeks a stay of the judgment and enforcement of the Writ of Seizure and Sale.
[2] The appellant submits that the RJR-MacDonald test for a stay has been met, namely:
(a) that there is a serious issue to be decided on appeal;
(b) the enforcement of the judgment and the writ will seriously prejudice the appellant and cause her irreparable harm; and
(c) the balance of convenience favours the appellant.
[3] This stay motion must fail on the first branch of the RJR-MacDonald test. Rule 17(5) of the Small Claims Court Rules states, that the Court may set aside a judgment when a party failed to attend the trial only if, (a) that party makes a motion for such an order within thirty days after becoming aware of the judgment.
[4] In her affidavit at para. 6 the appellant states, that in or around June, 2014, she first received notice of the judgment when her brother I-Min Lai, advised her that he had been advised by their bank that there was a judgment that someone was trying to enforce against her. She states that she then contacted a lawyer to help with this matter. Parenthetically, I add I-Min Lai is the same person who was told by a Small Claims Court Judge of the trial date and that it was peremptory to the appellant but neglected to tell her. The motion to set aside came on for hearing some five months later on November 13, 2014.
[5] There is no evidence when the motion was launched or that Rule 17 had been complied with. Although the Small Claims Court Judge referred to the wrong Rule, i.e. Rule 11.06, he did state that in his view the motion was not made as soon as was reasonably possible in all the circumstances. Thus, it is clear that Rule 17 was not complied with and no extension of time was sought or special circumstances demonstrated. In fact, it seems that the appellant should have been aware of the judgment and writ well before June, 2014, in fact, as early as October 23, 2013 when the property in question was transferred and the title showed the writ registered against it.
[6] For these reasons, the motion for a stay is denied.
COSTS
[7] I have endorsed the Motion Record, “For oral reasons delivered, the motion for a stay is dismissed. Counsel have agreed that costs of this motion be fixed at $1,500, all inclusive. The appellant is to pay that amount to the respondent within thirty days.”
___________________________ LEDERMAN J.
Date of Reasons for Judgment: February 17, 2015
Date of Release: February 19, 2015
CITATION: Hair and Wigs Company Inc. v. Lai, 2015 ONSC 1059
DIVISIONAL COURT FILE NO.: 578/14
DATE: 20150217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HAIR AND WIGS COMPANY INC.
Plaintiff
(Respondent)
– and –
JUNG-HSIEN LAI
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: February 17, 2015
Date of Release: February 19, 2015