COURT OF APPEAL FOR ONTARIO

CITATION: Factors Western Ltd. v. Stach, 2014 ONCA 204

DATE: 20140317

DOCKET: C57388

Juriansz, Pepall and van Rensburg JJ.A.

BETWEEN

Factors Western Ltd.

Plaintiff (Appellant)

and

John Stach (also known as John Von Stach and John S. Stach), Grace Stach (also known as Graziella Stach), Josey Bougie (also known as Josie Bougie and Joseppiena Bougie), David J. Robinson, Keith Davis, Tony Santelli, Pat Green, Powerhouse Racing Products Limited, JVS Powersports Inc., JVS Holdings Inc., JVS Power Products Inc., JVS Powersports USA Inc., Von Stach Marketing Group Inc., Von Stach USA Inc., Woodland Springs Inc., Kevin C. McLeod carrying on business as Waste Tech, and Heatflexx, Inc.

Defendants (Respondents)

Steven Shoemaker, for the appellant

Paul E. Trenker, for the respondents

Heard and released orally: March 3, 2014

On appeal from the order of Justice W. Larry Whalen of the Superior Court of Justice, dated June 26, 2013, with reasons reported at 2013 ONSC 4393.

ENDORSEMENT

[1] The parties executed minutes of settlement that required the respondents to pay the appellant $250,000 in instalments. As part of the arrangement, consent to judgment, an approved form of judgment and mutual releases were executed, all to be held in escrow.

[2] The agreement contained the specific stipulation that failure to make any of the payments on time would constitute a breach, upon which “the Plaintiff may proceed to enforce the judgment or at the Plaintiff's option, continue the Action against the Stach defendants”.

[3] The respondents failed to make the final installment of $95,000 on time. By earlier installments they had paid a total of $155,000.

[4] When payment was not received by the due date, the appellant proceeded on the judgment and filed a writ of execution.

[5] The respondents moved for relief from penalty and forfeiture under s. 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[6] The motion judge rescinded the consent judgment and granted judgment against the respondents in the amount of $95,000 plus interest in its stead.

[7] The appellant appeals, arguing that the motion judge failed to allow the appellant to revert to its option to continue the action once relief had been granted. The appellant does not contest the granting of relief itself, in the circumstances of this case.

[8] In our view, there was no live issue that the contractual option was capable of being revived after it had been exercised and subsequent relief was granted. Accordingly, there was no need for the motion judge to address the argument specifically.

[9] The appeal is dismissed.

[10] Costs fixed in the amount of $6,500 all inclusive.

“R.G. Juriansz J.A.”

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”