Ilchenko v. Fooks

Ilchenko v. Fooks

The motion judge's decision not to set aside the default judgment was upheld because the appellant failed to satisfy the conventional test: there was no satisfactory explanation for the roughly eight and a half year delay and the appellant had unconditionally satisfied the judgment, demonstrating acknowledgement of its validity.

Citation
2007 ONCA 357
Parties
Plaintiff/respondent: Sergey Ilchenko; Plaintiff/respondent: Galina Ilchenko; Defendant/appellant: Yuri Fooks; Defendant/appellant: Anatoly Karlinsky now or also know as Tony Karlinsky; Defendant/appellant: Michael Leshch
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
11 May 2007
Procedural Posture
Civil Appeal / Court of Appeal Endorsement on Motion to Set Aside Default Judgment After Satisfaction
Outcome
Appeal dismissed
Legal Topics
Setting Aside Default Judgment, Delay in Bringing Motion, Satisfaction of Judgment, Costs
Source Language
English
Civil Procedure Enforcement Appeal Setting Aside Default Judgment Delay in Bringing Motion Satisfaction of Judgment Costs

Case Brief

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Parties

Sergey Ilchenko

Plaintiff/respondent

Galina Ilchenko

Plaintiff/respondent

Yuri Fooks

Defendant/appellant

Anatoly Karlinsky now or also know as Tony Karlinsky

Defendant/appellant

Michael Leshch

Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Endorsement on Motion to Set Aside Default Judgment After Satisfaction

Legal Issues

  1. 1 Whether a default judgment can be set aside after it has been satisfied
  2. 2 Whether the appellant provided a satisfactory explanation for an approximately eight and a half year delay in moving to set aside the judgment
  3. 3 Whether unconditional satisfaction of a judgment precludes relief to set it aside

Ratio Decidendi

The motion judge's decision not to set aside the default judgment was upheld because the appellant failed to satisfy the conventional test: there was no satisfactory explanation for the roughly eight and a half year delay and the appellant had unconditionally satisfied the judgment, demonstrating acknowledgement of its validity.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs fixed at $4,000 inclusive of disbursements and GST