





CITATION:
Chegancas
v.
Lukezic
, 2011
          ONCA 391



DATE: 20110520



DOCKET: C53123



COURT OF APPEAL FOR ONTARIO



Rosenberg, Lang and Watt JJ.A.



BETWEEN



Arcanjo

Chegancas



Plaintiff (Respondent)



and



Marija

Majda

Lukezic
, James Joseph
Lukezic
,
          Walker Hall Winery Ltd. and Walker Hall Holdings Ltd.



Defendants (Appellants)



James Joseph
Lukezic
, in person for
          the appellants



Mitchell Rose, for the respondent



Heard:
May 17, 2011



On appeal from the order of Justice
          Joseph W. Quinn of the Superior Court of Justice, dated December 9, 2010.



ENDORSEMENT




[1]

The appellants appeal the
    motion judges decision dismissing their motion to set aside the default
    judgment that formed the foundation for the writ of possession.
[1]
The appellants also move for a stay of the
    execution of the writ of possession.

[2]

As the motion judge observed, the appellants offered the
    motion court no plausible explanation for their significant delay in moving
    to set aside the default judgment.  On
    appeal, the appellants material continues to offer no plausible
    explanation.  Nonetheless, in argument, Mr.
Lukezic
tried to advance information about an alleged
    forbearance agreement that was not contained in the record before the court on
    the hearing of the motion.

[3]

Mr.
Lukezic
acknowledges this is so,
    but characterizes his affidavit simply as a bit incomplete.  Mr.
Lukezic
concedes that he understood the importance of bringing a motion for fresh
    evidence before this court if he wanted to introduce further evidence.  However, he says he was busy with other court
    matters and could not do so.   When asked
    about this, Mr.
Lukezic
suggested that an adjournment
    be granted so that he could expand on the evidence before this court.

[4]

In our view, even if such an adjournment were granted, the
    proposed fresh evidence would fail the
Palmer
test because the evidence was available at the time the motion was argued.  As well, the new evidence could have been
    properly presented to this court had the appellants brought a timely motion to
    admit fresh evidence.  Moreover, the only
    admissible evidence about the alleged forbearance agreement (to provide wine in
    exchange for forbearance on the mortgages) came on behalf of the
    respondents.  Their affidavit offered an
    explanation of the circumstances under which the wine was provided.  The appellants did not attempt to file
    material responsive to that explanation or to cross-examine on the particular
    affidavit.

[5]

In addition, it appears that the appellants have made no
    successful effort to refinance since August 2010, when they say they first
    learned of the respondents intention to enforce possession.  In all the circumstances of this case, it
    appears that todays request for an adjournment is simply another attempt to
    delay the inevitable.

[6]

In our view, on the basis of the material before him, it was
    open to the motion judge to dismiss the motion.  He was entitled to conclude that the appellants had not met the
    applicable test.  We see no basis to
    interfere with his determination.  Accordingly,
    the appeal is dismissed.

[7]

We dispense with the approval of the appellants to the form
    of the order dismissing the appeal.  Execution
    of any writ of possession shall be stayed until June 17, 2011.

[8]

The respondents are entitled to costs of the appeal as well as costs of
    the motion, which we fix at a total of $9,000.00, including disbursements and
    applicable taxes.

M. Rosenberg J.A.

S.E. Lang J.A.

David Watt J.A.





[1]
The parties agree that this appeal applies to
    the default judgment and writ of execution entered in Superior Court files
    numbered 51909/10 and 51910/10.


