COURT OF APPEAL FOR ONTARIO

CITATION: Sunlife Assurance Company of Canada v. Premier Financial Group Incorporated (Premier Financial), 2013 ONCA 151

DATE: 20130312

DOCKET: C56053

Sharpe, Epstein and Pepall JJ.A.

BETWEEN

Sunlife Assurance Company of Canada

Respondent/Plaintiff

and

Premier Financial Group Incorporated o/a Premier Financial, Premier Financial Capital Investments, and Premier Mortgage-Mortgage Alliance, David K. Chung a.k.a. Cheechul Chung and David Kee Choi Cheung, Kay Kim a.k.a. Youngchol Chung, Kyung-Sook Kiim and Kyung-Sook Kim, 2234170 Ontario inc., and Mohammad H. Khosprowbeygi

Appellants/Defendants

Stefan A. De Smit, for the appellants

B. Phillips, for the respondent

Heard: March 11, 2013

On appeal from the judgment of Justice B.P. O’Marra of the Superior Court of Justice, dated August 22, 2012.

APPEAL BOOK ENDORSEMENT

[1] The motion judge found that there was overwhelming evidence that the appellants were personally served and that they decided to ignore the process. There is ample evidence, including video recordings, to support the finding. It is established that a conscious decision not to participate in the proceedings bars consideration of a defence for the merits, even if one exists: Schill & Beninger Plumbing & Heating Ltd. v. Gallagher Estate (2001) 2001 CanLII 24134 (ON CA), 140 OAC 353.

[2] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $15,000 inclusive of disbursement and applicable taxes. The respondent agrees that the judgment be amended to delete the name “Youngchol Chung”.