DATE: 20060127

DOCKET: C42575

COURT OF APPEAL FOR ONTARIO

RE:

UNITED STATES SECURITIES AND EXCHANGE COMMISSION (Plaintiff/Respondent) v. J & J MANAGEMENT CONSULTING aka 1287769 ONTARIO INC., and CATERINA JOHNSON (Defendants/Appellants)

BEFORE:

GILLESE, BLAIR and JURIANSZ JJ.A.

COUNSEL:

Harry McMurtry

for the defendant/appellant Johnson

Malcolm Ruby

for the plaintiff/respondent

HEARD:

January 24, 2006

On appeal from the judgment of Justice Gerald F. Day of the Superior Court of Justice dated October 12, 2004.

E N D O R S E M E N T

[1] The appellants submit there was a failure of natural justice or procedural fairness in that Ms. Johnson was not permitted, on the argument of the motions, to read submissions she had prepared, and was not given an opportunity to address her motion to set aside the noting in default of the appellants.

[2] In our view, the motion judge simply attempted to assist Ms. Johnson in focusing her submissions on the pertinent issues. It is worth noting that the motion judge had before him extensive written submissions filed on behalf of the appellants and that he did confirm, at page 119 of the transcript, that Ms. Johnson had completed her submissions and had nothing further to say. Consequently, we are not persuaded there was any failure of natural justice.

[3] Setting aside a noting in default is discretionary. We cannot say on this record that the motion judge committed any error of principle in refusing to exercise his discretion.

[4] Further, given the default in defending the claim, the appellants are deemed to have admitted the finality of the judgment of the U.S. District Court. In any event, if there is any doubt that the U.S. District Court judgment should be regarded as final for the purposes of enforcement in Ontario, the appellants are fully protected by a stay of execution of the judgment pending final resolution of the appellants’ appeals in the United States. The respondent is not opposed to such a stay.

[5] Accordingly, we would dismiss the appeal and order a stay of execution as described in this endorsement. Costs in favour of the respondent are fixed in the amount of $1,500.00.

“E.E. Gillese J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”