DATE: 20060705

DOCKET: C44679

COURT OF APPEAL FOR ONTARIO

RE: ARMSTRONG FAMILY INDUSTRIES INC. (Plaintiff/ Respondent) – and – INTERNATIONAL PRINTING MACHINERY INC. (Defendant/Appellant)

BEFORE: O’CONNOR A.C.J.O. LABROSSE and FELDMAN JJ.A.

COUNSEL:

Yehuda Levinson

for the appellant

Kevin Klayman

for the respondent

HEARD & RELEASED ORALLY: July 4, 2006

On appeal from the judgment of Justice H.J.W. Siegel of the Ontario Superior Court of Justice dated December 6, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appeal is allowed.

[2] In our view, the appellant’s failure to respond to the motion resulted from a mistake within the meaning of rule 37.14(1)(b). In reaching this conclusion, we have had regard to the appellant’s background, the interaction between the appellant and the respondent’s counsel, the appellant’s clear intention to defend the action and importantly, the subsequent receipt of the notice from the court that the action had been dismissed.

[3] In the result, we allow the appeal and order that the judgment in the court below be set aside.

[4] The costs order below shall continue. There will be no order as to costs of this appeal.