Court of Appeal for Ontario

CITATION: Akagi v. Synergy Group (2000) Inc., 2015 ONCA 44

DATE: 20150123

DOCKET: C57071

BEFORE: Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Trent Akagi

Plaintiff (Respondent)

and

Synergy Group (2000) Inc., Shane Davidson Smith, David Prentice, Sandra Delahaye and Jean Lucien Breau

Defendants (Appellants)

COUNSEL:

Joseph M. Sereda, for the appellants

Terry Corsianos, for the respondent

Heard and released orally: January 19, 2015

On appeal from the judgment of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated April 24, 2013.

ENDORSEMENT

[1] The appellants appeal from a judgment made on April 24, 2013 at an undefended trial. At its highest the argument of the appellants is that, not having been properly served with notice of two proceedings leading up to the trial judgment, namely the orders of Roberts J. dated October 5, 2012 and January 18, 2013, they are entitled to have the judgment set aside on appeal.

[2] The appellants took no steps to move to set aside the orders of Roberts J. on the basis that they lacked proper notice. If they had done so, they would have been required to establish, beyond defective service, that they had no actual knowledge of the proceedings. There is no evidence, even before this court, that the appellants lacked knowledge of the proceedings. The assertions made in their factum are not supported by any evidence. Indeed, the evidence is to the contrary. The appellants’ counsel, Mr. Sereda, had correspondence with opposing counsel on October 25, 2012, in which he confirmed that he was aware of the October 5, 2012 order of Roberts J. striking out the statement of defence. Furthermore, it is clear that the appellants, Synergy and Smith knew about the January 18, 2013 order of Roberts J. An agent appeared for them that day and his request for an adjournment was denied.

[3] The question of the validity of service was specifically addressed by Roberts J. in her October 5, 2012 endorsement. She validated service of the motion by courier. Based on the materials before her she concluded that service by courier to what she noted was Synergy’s registered address should have come to the attention of the individual appellants if they were not evading service.

[4] It is not the law, as the appellants contend, that an order made without notice is a nullity. The order is nonetheless an order of the court until it is set aside.

[5] There is no evidence before this court to support the contention of the appellants that they lacked knowledge of the proceedings leading up to the uncontested hearing.

[6] There appear to be no other grounds of appeal of the April 2013 judgment that was granted at the uncontested hearing.

[7] The appeal is accordingly dismissed.

[8] Costs are to the respondent in the amount of $8,475, inclusive of HST and disbursements.

“Alexandra Hoy A.C.J.O.”

“K. van Rensburg J.A.”

“David Brown J.A.”