



COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Imperial Bank of Commerce v. Cherrington,
    2018 ONCA 1005

DATE: 20181207

DOCKET: M49850

Lauwers J.A. (In Chambers)

BETWEEN

Canadian Imperial Bank of Commerce

Respondent (Respondent by Appeal)

and

George Cherrington and Tracy Cherrington

Moving Party (Appellants by Appeal)

George Cherrington, in person

Denise Cooney, as duty counsel

Alexandra Tratnik, for the respondent

Heard: November 28, 2018

REASONS FOR DECISION

[1]

The appellants entered into a mortgage with the respondent on August 10,
    2009, which went into default. The respondent started a mortgage action on
    February 2, 2018 and default judgment was granted on April 16, 2018.
    Subsequently, on July 19, 2018, OConnell J. made an order granting leave to
    the respondent to issue a writ of possession in respect of the mortgaged
    property.

[2]

After receiving notice to vacate the property from the sheriff, Mr.
    Cherrington moved to set aside the judgment on August 17, 2018. The motion was
    adjourned to October 5, 2018, when it was heard by Sosna J. He dismissed the
    motion on the basis that it had no merit. On November 2, 2018, Mr. Cherrington
    served a notice of appeal to the Divisional Court.

[3]

On November 7, 2018, Mr. Cherrington brought an
ex parte
motion
    to the Superior Court of Justice requesting an order setting aside the default
    judgment on an
ex parte
basis. Remarkably, it was processed by the
    Superior Court. Sosna J. ordered that the writ of possession be set aside and
    that Mr. Cherrington serve his motion materials for a full hearing on November 16,
    2018. On that day, the matter came before DeSa J., who ordered that the writ of
    possession be reinstated but stayed enforcement of it until December 3, 2018 in
    order to give Mr. Cherrington time to arrange financing to pay off the
    mortgage.

[4]

On November 22, 2018 Mr. Cherrington filed a notice of motion in this court.
    It seeks leave to appeal the order of Judge Sosna dated November 16/2018. The
    problem is that DeSa J. heard him that day. In the notice of motion Mr.
    Cherrington notes that Judge DeSa J. granted [a] stay of proceeding[s] until
    December 3 2018."

[5]

The November 16, 2018 endorsement of DeSa J. provides:

The defendant has indicated his intention to pay off the debt.
    CIBC has agreed to not enforce the writ until December 3, 2018. The writ of
    possession is reinstated, but stayed until December 3, 2018.

If the defendant wishes to appeal
    the decision of Justice Sosna, he should [bring] his appeal on or before
    December 3, 2018 to the [Ontario Court of Appeal].

[6]

Obviously, DeSa J. intended to give Mr. Cherrington time to either
    refinance or to bring his appeal to this court, since he advised Mr.
    Cherrington to [bring] his appeal on or before December 3, 2018 to the [Ontario
    Court of Appeal].

[7]

In my view, the notice of motion intended to refer to Sosna J.s order
    of October 5, 2018, and the reference to November 16, 2018 as the date of the
    order was an inadvertent error.

[8]

What Mr. Cherrington is seeking is an extension of time within which to
    appeal the order of Sosna J., dated October 5, 2018, since the appeal to this
    court is well out of time. Considering the criteria for extending time to
    appeal, there is no doubt that Mr. Cherrington intended to appeal within the
    appeal period. The delay in this case was not long and Mr. Cherrington has
    explained it reasonably as misinformation from court staff that directed him to
    bring the appeal to the Divisional Court, not the Court of Appeal. There is no
    evidence to suggest that the respondent would be prejudiced if leave to appeal
    were extended. Its interests are protected by its security in the mortgage
    property.

[9]

However, the motion for an extension of time to appeal from the decision
    of Sosna J. founders on the issue of the merits. Mr. Cherrington admitted
    candidly that he has not paid the mortgage in some months and that he is
    working to refinance. He advised that he now has new financing ready to go, but
    needs more time. He provided no evidence of these assertions. The only reason
    for his appeal would appear to be to delay execution of the default judgment.
    In my view, the justice of the case does not support the extension of time
    within which Mr. Cherrington may commence his appeal.

[10]

I
    therefore dismiss the motion for an extension of time within which to appeal
    the order of Sosna J., dated October 5, 2018, and fix costs payable by Mr.
    Cherrington to the respondent in the amount of $500.

P. Lauwers J.A.


