2017 ONSC 1877, 2017 ONSC 1877

CITATION : Apollo Real Estate Limited v. Streambank Funding Inc., 2017 ONSC 1877 DIVISIONAL COURT FILE NO’s.: 72/17 95/17 DATE: 20170323 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: APOLLO REAL ESTATE LIMITED v. STREAMBANK FUNDING INC. O/A THE EQUITY CENTRE, GARY CULLEN and IRWIN BELITSKY BEFORE: NORDHEIMER J. HEARD at Toronto: written submissions E N D O R S E M E N T [ 1 ] The plaintiff sought leave to appeal from the decision of McEwen J. dated December 12, 2016, in which the motion judge set aside a default judgment that had been granted by Cameron J. on December 22, 2003.

On March 14, 2017, I dismissed that motion for leave to appeal. [ 2 ] Prior to my decision dismissing the motion for leave to appeal, a dispute occurred between the plaintiff and the defendant, Gary Cullen, regarding the contents of the formal order that the motion judge had made. On January 31, 2017, the motion judge ordered that the parties each deliver their version of the formal order, which he would review, and then settle the terms of the formal order. The plaintiff then brought a motion for leave to appeal from the January 31 order (Div. Ct.

File No. 72/17). [ 3 ] On February 14, 2017, the motion judge forwarded to the parties the signed formal order. The plaintiff then brought an application for leave to appeal the February 14 order (Div. Ct.

File No. 95/17). [ 4 ] As a result of these two motions for leave to appeal, I directed the Registrar, pursuant to r. 2.1.01(3) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to give notice to the plaintiff that the court was considering making an order dismissing both motions for leave to appeal on the grounds that they appear to be frivolous, vexatious or otherwise an abuse of the process of the court. [ 5 ] In response to the notice, Mr. Malamas has delivered written submissions. I believe that, reduced to its essentials, Mr. Malamas has two complaints.

One is that the motion judge settled the order himself rather than permitting the registrar to do so pursuant to r. 59.04(10). The other is that the motion judge, in the course of these two subsequent orders, extended the time for the defendant, Gary Cullen, to file his statement of defence. [ 6 ] There is no merit to either of these complaints. In terms of the first complaint, the Rules of Civil Procedure contemplate that an order can be settled by the registrar or by the judge who made the order. In addition, no appeal lies from the settling of the formal order. The appeal lies from the order itself.

The plaintiff sought leave to appeal from the order and that was dismissed. The plaintiff has therefore exercised the only right of appeal that it had from the order made. In terms of the second complaint, until the formal order was signed, the defendant, Gary Cullen, could not file his statement of defence. Since there was a delay in settling the formal order, the time originally provided by the motion judge for the defence to be filed would have come and gone, without the defendant, Gary Cullen, being able to actually file his defence.

Consequently, the motion judge, in the exercise of his discretion, extended the time for the defence to be filed. That result had to occur since, had the motion judge not done so, the effect of the original order would have been frustrated. Indeed, that was clearly the objective of Mr. Malamas since he complains, in his written submissions, that the decision of the motion judge prevented him from once again noting the defendant, Gary Cullen, in default. [ 7 ] The two motions for leave to appeal are frivolous and an abuse of the court’s process. Consequently, both motions are dismissed under r. 2.1.01(1).

NORDHEIMER J. DATE: March 23, 2017