CITATION: Bodkin Leasing Corporation v. Celej, 2011 ONCA 25
DATE: 20110113
DOCKET: C52366
COURT OF APPEAL FOR ONTARIO
Doherty, MacPherson and Cronk JJ.A.
BETWEEN
Bodkin Leasing Corporation
Respondent (Plaintiff)
and
Monika Celej also known as Monika Celey also known as Monika Celei also known as Monika Pruszynska
Appellant (Defendant)
Glenroy K. Bastien, for the appellant
Kevin S. Klayman, for the respondent
Heard and released orally: January 7, 2011
On appeal from the judgment of Justice Ellen M. MacDonald of the Superior Court of Justice, dated June 15, 2010.
ENDORSEMENT
[1] The appellant appeals the dismissal, by E. MacDonald J., of her motion to set aside a default judgment against her. The default judgment related to non-payment by the appellant of her obligations under a truck lease with the respondent.
[2] The appellant contends that the motion judge’s reasons were inadequate in that they did not disclose the basis for her decision: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.
[3] We do not accept this submission. Although the motion judge’s reasons were brief (4 paragraphs), the motion was a simple one with a limited record. Moreover, it is clear from her endorsement that the motion judge was aware of and addressed the relevant factors for determining whether a default judgment should be set aside.
[4] The appellant submits that the motion judge did not properly apply the relevant factors in determining whether this default judgment should have been set aside.
[5] We disagree. In accordance with the Rules, there was effective service of the Statement of Claim on the appellant in November 2008. She did nothing. Twice, in March and August 2009, the appellant was served with proper materials and/or ordered to attend for examinations in aid of execution. She did nothing. The appellant knew of a writ of execution arising from the default judgment in May 2009. She did nothing in the face of the writ to inquire about the basis of the writ. By June or July at the latest, she knew of the default judgment. She did not move to set it aside until September 2009. All of this inactivity on the appellant’s part amply supports the motion judge’s conclusion, on the specific issue raise by this appeal, that “[t]he motion was not brought as soon as possible after she became aware of the default judgment” as well as her more general conclusion that the appellant “was reckless in her disregard of claims being advanced against her from the day she was served.”
[6] Moreover, in the face of all the notices and material the appellant received between November 2008 and July 2009, her consistent refusal to do anything about them justifies the motion judge’s conclusion that the appellant’s explanation for her default was insufficient. She simply disregarded, for months on end, oral and written communications putting her on notice that non-payment of her lease obligations was creating serious legal problems for her.
[7] In addition, there is nothing in the record except bald assertions by the appellant without supporting material from any objective source (her husband’s affidavit is not in this category) to support her position that the sale of the truck by the respondent was not a commercially reasonable sale.
[8] Finally, we see no basis for interfering with the costs award of $5000 in favour of the respondent.
[9] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $1,000.00 inclusive of disbursements and applicable taxes.
“Doherty J.A.”
“J. C. MacPherson J.A.”
“E. A. Cronk J.A.”