Bank of Montreal v. Woldegabriel

CITATION: Bank of Montreal v. Woldegabriel, 2008 ONCA 782

DATE: 20081121

DOCKET: M36969 (C49602)

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O.

BETWEEN:

BANK OF MONTREAL Respondent (Plaintiff)

and

JENNIFER WOLDEGABRIEL also known as JENNIFER HARRIETHA WOLDEGABRIEL Appellant (Defendant)

Osborne G. Barnwell for the appellant (defendant)

Ian N. Roher for the respondent (plaintiff)

Heard: November 20, 2008

ENDORSEMENT

[1] The applicant has appealed the order of Campbell J. dated November 5, 2008 rejecting the applicant’s request to schedule a motion to stay the execution of two writs of seizure and sale (the “writs”). Within that appeal, the applicant brings this motion seeking a stay of execution of the writs.

[2] The motion is dismissed. The underlying appeal is from an interlocutory, not a final order. Thus, this court does not have jurisdiction to hear the appeal, nor this motion that is brought pursuant to that appeal.

[3] Campbell J.’s endorsement denying the applicant’s request to schedule a motion reads as follows:

Nothing to schedule at this time. There is no material challenging the conviction that has been filed which is the foundation for any possible application to this court.

[4] Counsel for the applicant concedes that Campbell J. was correct in stating that there was no material filed which could form the basis of the order he was seeking. He says that he intends to file that material before the end of this year.

[5] Campbell J.’s order did not finally refuse to hear the applicant’s request to schedule a motion. Rather he refused only to schedule it at that time. He did not foreclose the possibility of scheduling a hearing if and when the applicant filed proper material.

[6] Counsel for the applicant argues that the effect of the refusal to schedule the motion finally determines the issue because the properties subject to the writs are to be sold on November 25, 2008. As a result, he submits that this court should treat Campbell J.’s order as final and assume jurisdiction over the proceeding.

[7] I do not accept this argument. Assuming that the lands are to be sold on November 25, 2008, it is not Campbell J.’s order that determines that the sale may proceed. Rather, it is the applicant’s failure to pursue her case in an appropriate manner that will result in the sale going ahead without a hearing on the application required for a stay.

[8] Finally, it is important to consider the applicant’s motion against the background of what has occurred in this case. In 2004, the applicant was convicted of fraud. Her appeal to this court and her application for leave to appeal to the Supreme Court of Canada were dismissed.

[9] The respondent, Bank of Montreal, sued the applicant for the same fraud which led to her conviction and obtained summary judgment on the basis of the criminal conviction. The applicant appealed. On her appeal, she argued, among other things, that the judgment should be set aside because her civil counsel rendered ineffective assistance on the summary judgment motion by failing to raise the alleged ineffective assistance of her counsel in the criminal proceedings both at trial and on appeal. She tendered fresh evidence to support her arguments.

[10] In dismissing the appeal on January 25, 2008, this court observed:

To put these allegations in context, the appellant has made similar allegations against virtually every one of the very long list of lawyers who have represented her in these proceedings. … In the end, this appeal invites this court to allow the re-litigation not only of the summary judgment motion but also of the appeal from conviction and of the criminal trial itself. To do so would be to permit an abuse of process.

[11] The applicant’s application for leave to appeal to the Supreme Court of Canada was dismissed.

[12] The applicant’s request to stay the execution of the writs is premised solely on a successful challenge to her criminal conviction. In furtherance of that challenge, she has been proposing, for at least a year now, to launch an application in this court to reopen the conviction based on new evidence relating to the ineffective assistance of her counsel in the criminal proceedings. To date, she has not done so.

[13] As Campbell J. correctly pointed out, there was no material before him upon which the order the applicant was seeking could possibly be made. In these circumstances, I see no basis for this court to stay the execution of the writs. This motion is, therefore, dismissed.

[14] Costs of the motion are fixed in the amount of $5,000, inclusive of disbursements and GST. I am not prepared to order the costs be paid by Mr. Barnwell personally. While it is apparent from this endorsement that I consider the steps that he has taken to have been ill-conceived, I am not satisfied this is a case that warrants costs against a solicitor.

“D. O’Connor A.C.J..O.”