Court File and Parties
Court of Appeal for Ontario
Before: Doherty, Armstrong JJ.A. and Hoy J. (ad hoc)
Between
Luna McCalla Plaintiff (Respondent)
and
Albert Sliwin, Avon Sportswear Limited, Albert Sliwinski Limited, Faylaura Investments Inc. and Shain Sportswear Limited Defendants (Appellants)
Counsel: Michael R. Kestenberg, for the defendants (appellants) John R. Evans and Neil J. Keating, for the plaintiff (respondent)
Heard: November 28, 2011
On appeal from the judgment of Justice Gray of the Superior Court of Justice dated March 29, 2011.
Appeal Book Endorsement
1The appellant moved under Rule 37.14 to set aside the order striking the statement of defence. As we read the reasons, the motion judge found that the non-attendance by counsel on the day of the initial motion was not on account of “mistake or accident”, but was the culmination of a pattern of conduct intended to delay and stonewall the action in the hope that the plaintiffs would not pursue their claims (see paras. 3, 40, 55 and 57 of motion judge’s reasons). That factual finding is fully justified on this record. Counsel for the appellants acknowledges that without a finding of “accident or mistake”, the appellants could not access relief under Rule 37.14.
2The appeal is dismissed. Costs to the respondents in the amount of $7,500, inclusive of HST and disbursements.