COURT FILE NO.: 297/03

DATE: 20040127

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

RE: The Estate of Rachael Elgrichi and Marcelle Hadida v. Adriana Hornstein et al.

BEFORE: Swinton J.

COUNSEL: James Diamond for the Plaintiffs/Respondents

A. Patrick Wymes for the Defendant/Appellant, Adriana Hornstein

HEARD: January 26, 2004

ENDORSEMENT

[1] The appellant Adriana Hornstein appeals from a decision of Master Dash dated April 10, 2003 in which he refused to order the stay of an order for partial summary judgment, which requires her to pay $126,500 owing on two promissory notes.

[2] The Master relied on Rule 20.08, which provides:

Where it appears that the enforcement of a summary judgment ought to be stayed pending the determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the court may so order on such terms as are just.

[3] The refusal to stay the judgment was the result of an exercise of discretion by the Master. On an appeal from a Master’s exercise of discretion, there should be no interference with the decision unless the Master was clearly wrong (Lederer v. Fenwick, [2001] O.J. No. 3683 (Div. Ct.) at paragraph 5).

[4] In this case, Master Dash carefully considered the legal principles to be applied in determining whether a stay should be granted. He relied on the decision of Molloy J. in Comtract Air Compressors Inc. v. A.W. Service Industries Inc., 2000 22763 (ON SC), [2000] O.J. No. 1867, where she stated at paragraph 28 that “whether or not a stay should be granted is an exercise of discretion taking into account the nature of the defendant’s claims and the equities between the parties.” She also observed that the strength of the defendant’s counterclaim is a factor to be considered.

[5] Master Dash reviewed the facts of this case and gave careful reasons explaining why he concluded that the equities did not warrant a stay nor an order for payment of monies into court (pp. 6-8 of his endorsement). He noted that the plaintiffs’ claim is on promissory notes, which are bills of exchange, and that the monies were clearly due and owing. He made comments on the conduct of Adriana Hornstein and the weakness of the claims set out in her draft counterclaim.

[6] In my view, the appellant has failed to show that the Master committed any error in his assessment of the facts nor the inferences which he drew from them. She has not shown that he applied incorrect principles in coming to his decision or took into account irrelevant considerations. As the Master was not “clearly wrong” in his exercise of discretion, the appeal is dismissed. The respondents are to have costs of $3,000.00, the sum agreed upon by counsel, payable forthwith by the appellant.

Released: January 27, 2004

Swinton J.