Court File and Parties
Court of Appeal for Ontario
Goudge, Juriansz and MacFarland JJ.A.
Between
Pitney Bowes of Canada Ltd.
Plaintiff (Respondent)
and
Homelife/United Realty Inc.
Defendant (Appellant)
Counsel: Atoosa Mahdavian, for the appellant Inga Andriessen and Ann Hatsios, for the respondent
Heard: August 8, 2011
On appeal from the final order of Justice David Price of the Superior Court of Justice dated April 6, 2011.
Appeal Book Endorsement
1In our view the draconian step of striking out the Statement of Defence and Counterclaim was not justified in the circumstances of this case. This was not a case where there were repeated failures to comply. The former solicitors for the appellant were removed from the record by order in late February and the trial of the action scheduled to proceed at a “blitz” sitting of the court about one month later in April.
2There was evidence of some efforts on the part of the appellant to retain counsel and of the difficulties they encountered which is not surprising in view of the proximity of the trial date.
3In our view less draconian measures ought to have been considered and ought to have prevailed. For example there could have been an extension of time granted failing which the appellant would be obliged to proceed without counsel.
4The appeal is allowed and the order of Price J. is set aside.
5Costs to the appellant fixed in the sum of $7,000.00 inclusive of disbursements and H.S.T.