Court of Appeal for Ontario

Date: 2018-12-07 Docket: M49850

Lauwers J.A. (In Chambers)

Between

Canadian Imperial Bank of Commerce Respondent (Respondent by Appeal)

and

George Cherrington and Tracy Cherrington Moving Party (Appellants by Appeal)

Counsel

George Cherrington, in person Denise Cooney, as duty counsel Alexandra Tratnik, for the respondent

Heard: November 28, 2018

Reasons for Decision

[1] The appellants entered into a mortgage with the respondent on August 10, 2009, which went into default. The respondent started a mortgage action on February 2, 2018 and default judgment was granted on April 16, 2018. Subsequently, on July 19, 2018, O'Connell J. made an order granting leave to the respondent to issue a writ of possession in respect of the mortgaged property.

[2] After receiving notice to vacate the property from the sheriff, Mr. Cherrington moved to set aside the judgment on August 17, 2018. The motion was adjourned to October 5, 2018, when it was heard by Sosna J. He dismissed the motion on the basis that it had no merit. On November 2, 2018, Mr. Cherrington served a notice of appeal to the Divisional Court.

[3] On November 7, 2018, Mr. Cherrington brought an ex parte motion to the Superior Court of Justice requesting an order setting aside the default judgment on an ex parte basis. Remarkably, it was processed by the Superior Court. Sosna J. ordered that the writ of possession be set aside and that Mr. Cherrington serve his motion materials for a full hearing on November 16, 2018. On that day, the matter came before DeSa J., who ordered that the writ of possession be reinstated but stayed enforcement of it until December 3, 2018 in order to give Mr. Cherrington time to arrange financing to pay off the mortgage.

[4] On November 22, 2018 Mr. Cherrington filed a notice of motion in this court. It seeks leave to appeal the order of "Judge Sosna dated November 16/2018". The problem is that DeSa J. heard him that day. In the notice of motion Mr. Cherrington notes that "Judge DeSa J. granted [a] stay of proceeding[s] until December 3 2018."

[5] The November 16, 2018 endorsement of DeSa J. provides:

The defendant has indicated his intention to pay off the debt. CIBC has agreed to not enforce the writ until December 3, 2018. The writ of possession is reinstated, but stayed until December 3, 2018.

If the defendant wishes to appeal the decision of Justice Sosna, he should [bring] his appeal on or before December 3, 2018 to the [Ontario Court of Appeal].

[6] Obviously, DeSa J. intended to give Mr. Cherrington time to either refinance or to bring his appeal to this court, since he advised Mr. Cherrington "to [bring] his appeal on or before December 3, 2018 to the [Ontario Court of Appeal]".

[7] In my view, the notice of motion intended to refer to Sosna J.'s order of October 5, 2018, and the reference to November 16, 2018 as the date of the order was an inadvertent error.

[8] What Mr. Cherrington is seeking is an extension of time within which to appeal the order of Sosna J., dated October 5, 2018, since the appeal to this court is well out of time. Considering the criteria for extending time to appeal, there is no doubt that Mr. Cherrington intended to appeal within the appeal period. The delay in this case was not long and Mr. Cherrington has explained it reasonably as misinformation from court staff that directed him to bring the appeal to the Divisional Court, not the Court of Appeal. There is no evidence to suggest that the respondent would be prejudiced if leave to appeal were extended. Its interests are protected by its security in the mortgage property.

[9] However, the motion for an extension of time to appeal from the decision of Sosna J. founders on the issue of the merits. Mr. Cherrington admitted candidly that he has not paid the mortgage in some months and that he is working to refinance. He advised that he now has new financing ready to go, but needs more time. He provided no evidence of these assertions. The only reason for his appeal would appear to be to delay execution of the default judgment. In my view, the justice of the case does not support the extension of time within which Mr. Cherrington may commence his appeal.

[10] I therefore dismiss the motion for an extension of time within which to appeal the order of Sosna J., dated October 5, 2018, and fix costs payable by Mr. Cherrington to the respondent in the amount of $500.

P. Lauwers J.A.