Court of Appeal for Ontario

Date: 2019-12-05 Docket: C66781

Judges: Watt, Hourigan and Trotter JJ.A.

Between

Larissa Mikhailova Plaintiff (Respondent)

and

Skylark Holdings Limited and Michael Slattery Defendants (Appellants)

Counsel

Doug LaFramboise, for the appellants Scott Turton, for the respondent

Heard and released orally: November 29, 2019

On appeal from: the order of Justice Kimmel of the Superior Court of Justice, dated March 5, 2019.

Reasons for Decision

[1] The respondent commenced an action against the appellants arising from certain mortgage investments made by her with the appellants. The respondent noted the appellants in default and brought a motion for judgment. The judge hearing that motion required that notice of the motion be served on the appellants. Notice was given to the appellants, but they failed to appear on the motion for judgment. Default judgment was granted in excess of $800,000.

[2] The motion judge dismissed the appellant's motion to set aside the default judgment. On appeal, the appellants challenge every aspect of the motion judge's analysis. We do not give effect to any of these grounds of appeal.

[3] The motion judge properly applied the test from Intact Insurance Company v. Kisel, 2015 ONCA 205, 125 O.R. (3d) 365. We agree with her analysis of each of the relevant factors.

[4] In particular, the motion judge did not err in finding that the appellants failed to establish an arguable defence on the merits. The draft defence filed amounts to nothing more than a series of bald denials.

[5] Further, contrary to the submission of the appellants, the motion judge considered the issue of prejudice. In our view, she properly determined that there was no evidence of prejudice beyond the axiomatic prejudice of having a judgment entered against the appellants.

[6] In short, the grounds of appeal represent a thinly veneered attempt to have this court reweigh the appropriate factors and reach a conclusion contrary to that of the motion judge.

[7] Finally, we note that the appellants included in their notice of appeal and factum, an allegation of a reasonable apprehension of bias on the part of the motion judge. That argument was abandoned at the appeal hearing.

[8] Allegations of a reasonable apprehension of bias are very serious and must be based on evidence. To be clear, there was no evidence to support this allegation in the present case and it was recklessly made.

[9] The appeal is dismissed. Costs of the appeal, fixed in the all-inclusive amount of $6,000, are payable by the appellants to the respondent.

"David Watt J.A." "C.W. Hourigan J.A." "G.T. Trotter J.A."