



COURT OF APPEAL FOR ONTARIO

CITATION: Akagi v. Synergy Group (2000) Inc., 2015 ONCA 44

DATE: 20150123

DOCKET: C57071

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Trent Akagi

Plaintiff (Respondent)

and

Synergy
    Group (2000) Inc., Shane Davidson Smith, David Prentice,

Sandra
    Delahaye and Jean Lucien Breau

Defendants (Appellants)

Joseph M. Sereda, for the appellants

Terry Corsianos, for the respondent

Heard and released orally: January 19, 2015

On appeal from the judgment of Justice Victoria R. Chiappetta
    of the Superior Court of Justice, dated April 24, 2013.

ENDORSEMENT

[1]

The appellants appeal from a judgment made on April 24, 2013 at an
    undefended trial. At its highest the argument of the appellants is that, not
    having been properly served with notice of two proceedings leading up to the
    trial judgment, namely the orders of Roberts J. dated October 5, 2012 and
    January 18, 2013, they are entitled to have the judgment set aside on appeal.

[2]

The appellants took no steps to move to set aside the orders of Roberts
    J. on the basis that they lacked proper notice. If they had done so, they would
    have been required to establish, beyond defective service, that they had no
    actual knowledge of the proceedings. There is no evidence, even before this
    court, that the appellants lacked knowledge of the proceedings. The assertions
    made in their factum are not supported by any evidence. Indeed, the evidence is
    to the contrary. The appellants counsel, Mr. Sereda, had correspondence with
    opposing counsel on October 25, 2012, in which he confirmed that he was aware
    of the October 5, 2012 order of Roberts J. striking out the statement of
    defence. Furthermore, it is clear that the appellants, Synergy and Smith knew
    about the January 18, 2013 order of Roberts J. An agent appeared for them that
    day and his request for an adjournment was denied.

[3]

The question of the validity of service was specifically addressed by Roberts
    J. in her October 5, 2012 endorsement. She validated service of the motion by
    courier. Based on the materials before her she concluded that service by
    courier to what she noted was Synergys registered address should have come to
    the attention of the individual appellants if they were not evading service.

[4]

It is not the law, as the appellants contend, that an order made without
    notice is a nullity. The order is nonetheless an order of the court until it is
    set aside.

[5]

There is no evidence before this court to support the contention of the
    appellants that they lacked knowledge of the proceedings leading up to the
    uncontested hearing.

[6]

There appear to be no other grounds of appeal of the April 2013 judgment
    that was granted at the uncontested hearing.

[7]

The appeal is accordingly dismissed.

[8]

Costs are to the respondent in the amount of $8,475, inclusive of HST
    and disbursements.

Alexandra Hoy A.C.J.O.

K.
    van Rensburg J.A.

David
    Brown J.A.


