Pomeroy v. Home Trust Company
The appeal was dismissed because the appellant sought to introduce fresh evidence too late—after a peremptory motion date—failed to file responding materials and acknowledged default, leaving the motion judge entitled to rely on the uncontroverted evidence of the moving party; no error was shown.
Source-derived case information.
- Citation
- 2009 ONCA 816
- Parties
- Appellant: Graham Pomeroy; Respondent: Home Trust Company
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 20 November 2009
- Procedural Posture
- Civil Collection / Court of Appeal Appeal From Motion Judge (superior Court of Justice)
- Outcome
- Appeal dismissed
- Legal Topics
- Fresh Evidence on Appeal, Default, Adjournment, Peremptory Motion Date, Costs Fixed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Graham Pomeroy
Appellant
Home Trust Company
Respondent
Procedural Posture
Civil Collection / Court of Appeal Appeal From Motion Judge (superior Court of Justice)
Legal Issues
- 1 Whether fresh evidence should be admitted on appeal
- 2 Whether the motion judge erred in proceeding in the appellant's absence
- 3 Whether costs were properly assessed and fixed
Ratio Decidendi
The appeal was dismissed because the appellant sought to introduce fresh evidence too late—after a peremptory motion date—failed to file responding materials and acknowledged default, leaving the motion judge entitled to rely on the uncontroverted evidence of the moving party; no error was shown.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to respondent fixed at $5,649.63, all inclusive
Full Case Text
Judgment text and source record
1 paragraphs
Pomeroy v. Home Trust Company Collection Decisions of the Court of Appeal Date 2009-11-20 Neutral citation 2009 ONCA 816 Docket numbers C50708 Judges Gillese, Eileen E.; Blair, Robert Ashley; MacFarland, Jean Louise Subject Civil Decision Content CITATION: Pomeroy v. Home Trust Company, 2009 ONCA 816 DATE: 20091120 DOCKET: C50708 COURT OF APPEAL FOR ONTARIO Gillese, Blair and MacFarland JJ.A. BETWEEN Graham Pomeroy Appellant and Home Trust Company Respondent Graham Pomeroy, appellant appearing in person A. Jackson, for the respondent Heard: November 17, 2009 On appeal from the judgment of Justice E. Fedak of the Superior Court of Justice, dated June 9, 2009. APPEAL BOOK ENDORSEMENT [1] Mr. G. Pomeroy today seeks to introduce new evidence. It is too late. The proper time to introduce that evidence was before the motion judge. The motion was originally returnable on May 14, 2009. At the request of Mr. G. Pomeroy – made through his brother – the hearing of the motion was adjourned to June 9, 2009, expressly on the basis that it was peremptory on Mr. G. Pomeroy “with or without a lawyer.” Mr. G. Pomeroy was not in attendance on June 9, 2009, due to ill health. However, he did not file any responding materials, something within his power to have done. [2] As a consequence, the motion judge was left with the uncontroverted evidence of the moving party. Today, G. Mr. Pomeroy acknowledges he was in default and that the motion judge made no error. The motion judge was entitled to make the order that he did. [3] As there is no error in the order under appeal, the appeal is dismissed with costs to the respondent fixed at $5649.63, all inclusive.