COURT FILE NO.: 05-283876-PD2
DIVISIONAL COURT FILE NO.: 167/06
DATE: 20060502
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: DEREK MCBRIDE and limerick mines ltd. and john steele
BEFORE: Chapnik J.
COUNSEL: J. Alick Ryder, for the Moving Party
Lisa Miron, for the Responding Parties
HEARD: April 27, 2006 at Toronto
E N D O R S E M E N T
CHAPNIK J.:
[1] The plaintiff seeks leave to appeal the Order of Spence J. dated March 30, 2006 in which he set aside the noting in default signed on April 15, 2005. At the same time, the learned motions judge also set aside the referral of the action for an assessment of damages by Lax J. on June 13, 2005.
[2] The applicant alleges there is good reason to doubt the correctness of the Order of Spence J. in that he exercised his discretion on a wrong principle. Moreover, the case is important to the development of the law and the administration of justice generally in Ontario “respecting the significance in law of an accidental slip to the exercise of the court’s discretion under Rule 19.03.”
[3] Spence J., though finding that the defendant had not shown an intent to defend at the relevant time or that there was no undue delay after becoming aware of the noting in default, also found that the requisition for the noting in default incorrectly stated the ground to be “the failure to file a statement of claim”.
[4] In exercising his discretion, the learned motions judge relied on the rationale of Henry J. in Grant v. Graydex Ottawa, [1983] O.J. No. 529 (H.C.J.) that, in obtaining judgment where a defendant is not entitled to notice and is not represented, the plaintiff must comply strictly with the rules. In his brief endorsement, Spence J. also noted that the noting in default was at “an early stage” in the proceedings; and that there had been “absolutely no consideration of the merits”.
[5] It is well settled law that the test for setting aside a noting in default should not be the same as that for setting aside a default judgment; and in either case the court has a broad discretion. See for example, Metropolitan Toronto Condominium Corp. No.706 v. Bardmore Developments Ltd. (1991), 3 O.R. (3d) 278.
[6] In my view, the motions judge was entitled to make the findings he did. There was no error in fact or in law; and I can find no good reason to doubt the correctness of the Order.
[7] In any event, the issues raised are not of general importance. They fail to transcend the immediate interest of the parties or involve matters of public importance relevant to the development of the law or the administration of justice. See Rankin v. McLeod, Young, Weir (1986), 57 O.R. (2d) 569; Comtrade Petroleum Inc. v. 490300 Ontario Ltd., [1992] 7 O.R. (3d) 542 (Div. Ct.).
[8] Accordingly, the motion for leave to appeal to the Divisional Court from the Order of Spence J. dated March 30, 2006 is dismissed. Costs to the defendants are fixed in the all-inclusive sum of $2,000.00, payable to Lisa Miron in trust, forthwith.
[9] The parties have spent far too much time and resources over this interlocutory matter. It is in the interest of all concerned that the trial of this matter be expedited.
[10] Order accordingly.
Chapnik J.
DATE: