Court of Appeal for Ontario

Date: 2018-01-31 Docket: M48041 (C55748)

Judges: Simmons, Roberts and Nordheimer JJ.A.

Between

Bank of Montreal Respondent/Plaintiff

and

Paul Emilio Serpa Applicant/Defendant

Counsel

Paul Serpa, in person

Christopher Staples, for the respondent

Heard and released orally: January 17, 2018

Reasons for Decision

[1] The moving party requests a review of the decision of a motion judge in this court refusing to set aside a dismissal of an appeal for delay.

[2] The moving party's appeal of a judgment dated June 20, 2012 (which was apparently filed by his mother while the moving party was out of the country), was dismissed for delay on December 7, 2012. Among other things, the judgment ordered the moving party to pay the amount owing on a collateral mortgage securing payments on a line of credit.

[3] On June 8, 2017, the motion judge dismissed the moving party's request to reinstate his appeal. He found that the moving party's renewed interest in the appeal was the result of the bank seeking recovery against the second property the moving party owns following the sale of the property subject to the mortgage.

[4] However, the motion judge also found that the moving party's explanation for his delay was not convincing – as the moving party had an obligation to mind his affairs while out of the country – and that the merits of the appeal are weak.

[5] In all the circumstances, the motion judge declined to set aside the dismissal for delay at this late stage.

[6] We see no basis on which to set aside the motion judge's order. The moving party has failed to identify any error in the motion judge's reasons. The moving party's allegations in relation to the merits are vague and unsubstantiated. As noted by the motion judge, there is no adequate explanation for the inordinate delay.

[7] The review motion is dismissed. Costs of the review motion are to the bank on a partial indemnity scale fixed in the amount of $5,000 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.