B. Greenberg

The plaintiff moved under Rule 37.14(1) to set aside an order dismissing its construction lien action.

The action had been dismissed after the plaintiff failed to attend a motion following the removal of its former counsel of record.

The court found that the plaintiff did not receive actual notice of the removal order and that its failure to attend the dismissal motion was due to an accident or mistake by its president, who mistakenly believed former counsel would attend.

The court set aside the dismissal order, finding the plaintiff moved forthwith, without unreasonable delay, and that the defendant would not be prejudiced.

The defendant foreign hotel corporation brought a motion to set aside service of a statement of claim, arguing that service at a Toronto office operated by a marketing contractor did not constitute valid service under the Rules of Civil Procedure.

The plaintiff cross-moved for a declaration that service was proper or, alternatively, for validation of service.

The court applied the test for whether a foreign corporation carries on business in Ontario and examined the contractual marketing relationship between the defendant and the Ontario-based marketing company.

It held that the marketing activities were integral to the defendant’s business and constituted carrying on business in Ontario.

Service effected at the Toronto office was therefore valid, and the defendant’s motion was dismissed.

The appellant appealed an order, attempting to raise potential defences on the merits and challenging the provenance of documents filed below.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusions that the appellant was properly served and had no defence on the merits based on the record.