



COURT OF APPEAL FOR ONTARIO

CITATION: Mikhailova v. Skylark Holdings
    Limited, 2019 ONCA 958

DATE: 20191205

DOCKET: C66781

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Larissa Mikhailova

Plaintiff (Respondent)

and

Skylark Holdings Limited and Michael
    Slattery

Defendants (Appellants)

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 appellants
    motion to set aside the default judgment. On appeal, the appellants challenge
    every aspect of the motion judges 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 a 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.


