CITATION: Scott v. Wykanta Canada Ltd., 2017 ONSC 2652
DIVISIONAL COURT FILE NO.: 073/17
DATE: 20170428
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: WENDY SCOTT v. WYKANTA CANADA LTD. and GREGORY THOMLISON
BEFORE: NORDHEIMER J.
COUNSEL: D. Fenig, for the moving party/defendant, Gregory Thomlison
J. Helm, for the responding party/plaintiff
HEARD at Toronto: written submissions
E N D O R S E M E N T
[1] The defendant, Gregory Thomlison, seeks leave to appeal from the order of Belobaba J., dated January 30, 2017, in which the motion judge granted Mr. Thomlison’s motion to set aside the noting in default and default judgment against him but on terms that he pay one-half of the amount of the judgment (i.e. $37,500) into court within thirty days and that he pay costs of $200.00. It is this latter aspect of the order that gives rise to this motion for leave to appeal.
[2] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that reads:
Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
For the purposes of this motion, Mr. Thomlison relies on the second test.
[3] I would not grant leave to appeal in this case. The term in question was an exercise of the motion judge’s discretion in deciding to set aside the noting in default and default judgement. It is accepted that the court has a discretion to impose terms as part of an order setting aside default proceedings – see, for example, Canadian Imperial Bank of Commerce v. Sheahen (1978), 1978 2169 (ON SCDC), 22 O.R. (2d) 686 (Div. Ct.). While I accept that different judges in different cases have reached different conclusions regarding whether to impose such a term as part of setting aside default proceedings, the fact that there are different results does not provide a foundation for finding that the order in this case is “open to serious debate”.[^1] I acknowledge that it would have been preferable if the motion judge had given some reasons for his decision to include the payment into court as part of his order but the failure to do so does not, by itself, raise an issue about the discretion to do so.
[4] In any event, the second branch of the test is not met because the issue raised in this case is not of sufficient importance that leave to appeal ought to be granted. While it may be a matter of some importance to the parties, it does not raise any question that is of importance to the public or the administration of justice generally.
[5] Consequently, the motion for leave to appeal is dismissed
[6] I fix the costs of the motion for leave to appeal in the amount of $5,000 inclusive of disbursements and HST to be paid by Gregory Thomlison to the plaintiff within thirty days.
NORDHEIMER J.
DATE: April 28, 2017
[^1]: Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.)