COURT OF APPEAL FOR ONTARIO
RE:
DALE KAUZLARICK (Plaintiff) (Respondent) – and – AUTO MOTO LTD. and NIKOLA ELEZ (Defendants) (Appellants)
BEFORE:
LASKIN, MacPHERSON and LANG JJ.A.
COUNSEL:
Carol Street
for the appellant
Edward S.E. Kim
for the respondents
HEARD & ENDORSED:
November 26, 2004
On appeal from the order of Justice Erwin W. Stach of the Superior Court of Justice dated February 19, 2004.
A P P E A L B O O K E N D O R S E M E N T
1The issue on this appeal is whether Stach J. committed a reviewable error in exercising his discretion to refuse to set aside the judgment the respondent had obtained on default. We have concluded that he did not err. As Ms. Street acknowledged in her capable argument on behalf of the appellant, no explanation was offered for the lengthy delay in moving to set aside the default judgment. That alone is sufficient to dispose of this appeal.
2We add, however, that we accept Mr. Kim’s submission that the appellant’s main contention – he told the respondent the car had been salvaged – is nowhere to be found in the statement of defence.
3Accordingly, the appeal is dismissed with costs in the amount of $7,500, inclusive of disbursements and GST.