



COURT OF APPEAL FOR ONTARIO

CITATION: Laurentian Bank of Canada v. Bernier, 2018 ONCA 23

DATE: 20180115

DOCKET: C62124

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

The Laurentian Bank of Canada

Plaintiff (Respondent)

and

Mary A. Bernier
and
    Frank J. Bernier

Defendants (
Appellant
)

Kevin Scullion, for the appellant

James M. Butson and Cristina Internicola, for the
    respondent

Heard: December 22, 2017

On appeal from the order of Justice Michael R. Gibson of
    the Superior Court of Justice, dated January 27, 2016.

REASONS FOR DECISION

[1]

The appellant appeals an order dismissing her motion to set aside an
    order for summary judgment granted May 12, 2011. She brings a fresh evidence
    application in support.

[2]

The appellant was sued by the respondent bank for a shortfall when it
    repossessed and sold a motorcycle that had been purchased by her husband, Frank
    Bernier. The respondent was named as co-defendant because the loan document
    bore her signature as guarantor of the loan. Frank Bernier filed a statement of
    defence on behalf of both defendants, but neither contested the motion and the
    respondent was granted summary judgment for $15,912.72, plus interest and costs.

[3]

The respondent took steps to enforce the judgment debt and scheduled an
    examination of the appellant. The appellant retained counsel and the matter was
    adjourned, but the appellant failed to attend two examinations scheduled
    subsequently. The respondent then brought a motion to compel her attendance.
    The appellant did not attend and an order of costs was made. The appellant did
    not pay and has not paid any outstanding costs orders.

[4]

In January 2016, the appellant brought a motion to set aside the
    judgment and swore an affidavit alleging that Frank Bernier, who died in 2011,
    entered the contract to purchase the motorcycle and forged her signature. No
    supporting evidence was adduced.

[5]

At the hearing of the appeal, the parties agreed that because the order
    under appeal concerns a payment of not more than $50,000, the appeal properly
    lies to the Divisional Court. In order to spare the parties further expense,
at our request, the Chief Justice of
    the Superior Court appointed the members of this panel as judges of the
    Divisional Court in order to hear this appeal.

[6]

In our view, the motion judge properly applied the test set out by this
    court in
Mehedi v. 2057161 Ontario Inc.
, 2015 ONCA 670, 391 D.L.R.
    (4th) 374. On the motion, the appellant proffered no expert evidence to support
    her claim that her signature had been forged. She provided no adequate
    explanation for her delay in moving to set aside the judgment  a delay of two
    and one-half years, even accepting her account. Finally, the motion judge found
    that the respondents would be prejudiced given the four-year delay in
    attempting to realize on the judgment.

[7]

The onus was on the appellant to demonstrate that the order should be
    set aside.  Ultimately, the motion judge was not satisfied that she met her
    burden. His discretionary decision is entitled to deference. There is no basis
    for this court to interfere with it.

[8]

The appellants fresh evidence application comes far too late in the
    day. The evidence was available when the motion was brought and it was
    incumbent on the appellant to produce it at that time. We do not think it could
    reasonably be expected to have affected the result in any event.

[9]

The fresh evidence application is dismissed. The appeal is dismissed.

[10]	The respondent is entitled to costs, fixed in the amount of $4,000 inclusive of taxes and disbursements.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


