CITATION: Chegancas v. Lukezic, 2011 ONCA 391
DATE: 20110520
DOCKET: C53123
COURT OF APPEAL FOR ONTARIO
Rosenberg, Lang and Watt JJ.A.
BETWEEN
Arcanjo Chegancas
Plaintiff (Respondent)
and
Marija Majda Lukezic, James Joseph Lukezic, Walker Hall Winery Ltd. and Walker Hall Holdings Ltd.
Defendants (Appellants)
James Joseph Lukezic, in person for the appellants
Mitchell Rose, for the respondent
Heard: May 17, 2011
On appeal from the order of Justice Joseph W. Quinn of the Superior Court of Justice, dated December 9, 2010.
ENDORSEMENT
[1] The appellants appeal the motion judge’s decision dismissing their motion to set aside the default judgment that formed the foundation for the writ of possession.[^1] The appellants also move for a stay of the execution of the writ of possession.
[2] As the motion judge observed, the appellants offered the motion court “no plausible explanation” for their significant delay in moving to set aside the default judgment. On appeal, the appellants’ material continues to offer no plausible explanation. Nonetheless, in argument, Mr. Lukezic tried to advance information about an alleged forbearance agreement that was not contained in the record before the court on the hearing of the motion.
[3] Mr. Lukezic acknowledges this is so, but characterizes his affidavit simply as “a bit incomplete”. Mr. Lukezic concedes that he understood the importance of bringing a motion for fresh evidence before this court if he wanted to introduce further evidence. However, he says he was busy with other court matters and could not do so. When asked about this, Mr. Lukezic suggested that an adjournment be granted so that he could expand on the evidence before this court.
[4] In our view, even if such an adjournment were granted, the proposed fresh evidence would fail the Palmer test because the evidence was available at the time the motion was argued. As well, the new evidence could have been properly presented to this court had the appellants brought a timely motion to admit fresh evidence. Moreover, the only admissible evidence about the alleged forbearance agreement (to provide wine in exchange for forbearance on the mortgages) came on behalf of the respondents. Their affidavit offered an explanation of the circumstances under which the wine was provided. The appellants did not attempt to file material responsive to that explanation or to cross-examine on the particular affidavit.
[5] In addition, it appears that the appellants have made no successful effort to refinance since August 2010, when they say they first learned of the respondents’ intention to enforce possession. In all the circumstances of this case, it appears that today’s request for an adjournment is simply another attempt to delay the inevitable.
[6] In our view, on the basis of the material before him, it was open to the motion judge to dismiss the motion. He was entitled to conclude that the appellants had not met the applicable test. We see no basis to interfere with his determination. Accordingly, the appeal is dismissed.
[7] We dispense with the approval of the appellants to the form of the order dismissing the appeal. Execution of any writ of possession shall be stayed until June 17, 2011.
[8] The respondents are entitled to costs of the appeal as well as costs of the motion, which we fix at a total of $9,000.00, including disbursements and applicable taxes.
“M. Rosenberg J.A.”
“S.E. Lang J.A.”
“David Watt J.A.”
[^1]: The parties agree that this appeal applies to the default judgment and writ of execution entered in Superior Court files numbered 51909/10 and 51910/10.