Court of Appeal for Ontario

Citation: Baptista v. Safranko, 2016 ONCA 114

Date: 20160209

Docket: C60887

Before: Hoy A.C.J.O., Pardu and Roberts JJ.A.

Between

Maria Baptista

Plaintiff/Respondent

and

Ted Safranko and Ana Baptista

Defendants/Appellant

Counsel:

Maurizio P. Artale, for the appellant

Amandeep Sidhu, for the respondent

Heard and released orally: February 5, 2016

On appeal from the order of Justice Irving W. André of the Superior Court of Justice, dated July 17, 2015.

Endorsement

[1] The appellant, Ted Safranko, submits that the motion judge erred in refusing to set aside default judgment against him, on the ground that he did not have an arguable defence on the merits.

[2] The motion judge correctly articulated the test set out in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, but the appellant submits that on the facts before him, the motion judge ought to have concluded that there was an air of reality to the defence.

[3] In para. 55 of Mountain View Farm Ltd., the court indicated:

A motion judge’s decision to set aside a default judgment is a discretionary one that will attract deference on appeal. It should not be interfered with absent an error in law or principle, a palpable and overriding of fact, or unless the decision is so clearly wrong as to amount to an injustice.

[4] The respondent, then a 69 year-old widow, placed mortgages on her home to help her daughter and the appellant, her daughter’s then partner, purchase a home. The appellant submits that these advances were a gift and not a loan. The respondent’s evidence was supported by the evidence of the mortgage broker who testified that the proceeds from the $168,000 mortgage taken out by the respondent were advanced to the appellant and the respondent’s daughter by way of loan and that the appellant had later personally explored with him the possibility of raising funds to discharge the debts to the respondent.

[5] The appellant also stated in text messages to the respondent’s daughter that her mother was owed $168,000, stated in writing on another occasion that the respondent was to be paid first, and referred to their obligations to the respondent in other written communications.

[6] Payments on the mortgage were not made by the respondent but out of her daughter’s bank account, consistent with a loan rather than a gift. The respondent denied ever signing a statement that the advance was a gift.

[7] Given the appellant’s own communications admitting to the indebtedness, the motion judge did not err in concluding that there was no air of reality to the defence asserted in the motion to set aside the default judgment.

[8] No error having been demonstrated, the appeal is dismissed. The respondent is entitled to her costs of the appeal fixed in the amount of $8,000, inclusive of HST and disbursements.

“Alexandra Hoy A.C.J.O.”

“G. Pardu J.A.”

“L.B. Roberts J.A.”