CITATION: 1316845 Ontario Limited v. Es-Lea Holdings Limited, 2009 ONCA 622
DATE: 20090825
DOCKET: C48919
COURT OF APPEAL FOR ONTARIO
Laskin, MacFarland and LaForme JJ.A.
BETWEEN
1316845 Ontario Limited and Cosimo DiLollo
Plaintiffs/Defendants by Counterclaim (Appellants)
and
Es-Lea Holdings Limited, Rino De Piero, Jack Frymer, Steinberg Morton Frymer LLP, Sam Stern, Ciarelli & Gareri Enterprises Inc., Anna Maria Ciarelli, Nick Ciarelli, Dino Spirito, Frank Sgro, Capo Sgro LLP, 1346665 Ontario Inc., Tony Fasulo, Heather Fasulo, and John Bentivoglio
Defendants/Plaintiffs by Counterclaim (Respondents)
Michael A. Kleinman, for the appellants
L. Viet Nguyen, for the respondents
Heard: August 24, 2009
On appeal from the order of Justice Michael G.J. Quigley of the Superior Court of Justice dated May 14, 2008.
APPEAL BOOK ENDORSEMENT
[1] The default in this case was nearly two years. Although we accept the appellants’ submission that they had an intent to defend the counterclaim when the litigation started, we see no error in Justice Quigley’s finding at para. 22 of his reasons that the appellants did not maintain their intent. That finding is reasonably supported by the evidence referred to in para. 22. It follows that we do not accept the appellants’ characterization of the failure to defend as a “technical slip”.
[2] Absent a continuing intend to defend, this appeal must be dismissed.
[3] The respondents are entitled to their costs in the amount of $3,675, inclusive of disbursements and GST.