Court File and Parties

CITATION: L-Jalco Holdings Inc. v. Marino Estate, 2010 ONCA 481

DATE: 20100706

DOCKET: C51734

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and Karakatsanis JJ.A.

BETWEEN

L-Jalco Holdings Inc.

Appellant

and

The Estate of Domenico Marino, Deceased, by its representative Joseph Marino, and Maurizia Marino

Respondents

Glenn Cohen, for the appellant

Gregory M. Sidlofksy and Leah Anderson Vojdani, for the respondents

Heard: July 5, 2010

On appeal from the order of Justice Janet Wilson of the Superior Court of Justice, dated Wednesday, October 21, 2009.

APPEAL BOOK ENDORSEMENT

[1] The appellant L-Jalco Holdings Inc. appeals from the order of the Divisional Court dated October 21, 2009, dismissing its appeal from the order of Master Peterson dated December 21, 2008. L-Jalco had sought to re-open a default judgment for foreclosure obtained against the respondents to request a reference. Master Peterson refused the motion and Wilson J. agreed with his analysis.

[2] In her reasons, Wilson J. observed that the foreclosure judgment was granted with the consent of the mortgagors and that the mortgagee did not request a reference. She also noted that the Master considered the appropriate contextual factors in refusing to re-open the foreclosure proceedings, including: the judgment was a consent judgment; the delay (2 ½ years) in seeking to re-open the matter and the associated prejudice to the mortgagors; and the intervening proceeding before Perell J. she concluded that there was no reason to doubt the correctness of the Master’s decision.

[3] Without accepting the entirety of the Divisional Court judge’s reasoning, we agree with her that it was open to the Master on this record to deny the relief sought by the mortgagee. The mortgagee purported to move in the original foreclosure proceedings, about 2 ½ years after default judgment had been obtained in that proceeding, and after the mortgagee had taken possession of the property, for an order amending the judgment to provide for a reference of the amount said to be owing on the mortgage covenant. The judgment was final and had been issued and entered. The relief sought by the mortgagee was, therefore, discretionary.

[4] There was no evidence before the Master explaining the delay in seeking relief on the covenant. The mortgagee did not originally wish a reference and, apparently, has now changed its mind – again without explanation. Moreover, there was some evidence of prejudice to the mortgagors arising from the passage of time. In these circumstances, the Master was entitled to deny the relief claimed.

[5] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $12,000 inclusive of disbursements and GST.