CITATION: Ilchenko v. Fooks, 2007 ONCA 357
DATE: 20070511
DOCKET: C45835
COURT OF APPEAL FOR ONTARIO
BORINS and MACFARLAND JJ.A. and CUNNINGHAM A.C.J. (ad hoc)
BETWEEN:
SERGEY ILCHENKO and GALINA ILCHENKO
(Plaintiffs/Respondents)
and
YURI FOOKS, ANATOLY KARLINSKY now or also know as TONY KARLINSKY and MICHAEL LESHCH
(Defendatns/Appellants)
James C. Morton, for the appellants
Michael A. Handler, for the respondents
Heard: May 9, 2007
On appeal from the judgment of Justice J. Patrick Moore of the Superior Court of Justice dated July 19, 2006.
APPEAL BOOK ENDORSEMENT
[1] Assuming that this was a default judgment, and without deciding whether the court can set aside a judgment after it has been satisfied, we find no reason to interfere with the decision of the motion judge. The appellant failed to satisfy the conventional test for setting aside a default judgment. In particular, the appellant has not provided a satisfactory explanation for the delay of about eight and a half years from the time the judgment was granted until the appellant moved to set it aside. Moreover, the appellant acknowledged the validity of the judgment by unconditionally satisfying it. Therefore, the appeal is dismissed with costs fixed at $4,000 inclusive of disbursements and GST.