COURT OF APPEAL FOR ONTARIO

**DATE:**20001214

DOCKET: C33072/C34262

RE: ARETHA WILSON, on her own behalf and on behalf of SKYLER WILSON, All other persons having claims or judgments against (Plaintiff/Respondent) vs. CGU INSURANCE COMPANY OF CANADA, ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA, LLOYD’S OF LONDON INSURANCE, HALIFAX INSURANCE COMPANY, GAN COMPANY OF CANADA LIMITED & CORPORATION OF THE CITY OF TORONTO (Defendant/Appellant)

AND RE: ARETHA WILSON and SKYLER WILSON, by his Litigation Guardian ARETHA WILSON (Plaintiff/Respondent) vs. LETITIA KEE, ABLE ATLANTIC TAXI CO. LTD., PHILIP MCDONALD AND GEORGE MEISNER, ABLE ATLANTIC TAXI (1992) LTD., ABLE ATLANTIC TAXI (1989) LTD., ABLE ATLANTIC TAXI INC. AND 556652 ONTARIO LTD., formerly known as ABLE ATLANTIC TAXI LIMITED (Defendant/Appellant)

BEFORE: GOUDGE, BORINS AND SHARPE JJ.A.

COUNSEL: Larry J. Kielbowich

for the appellant GAN Company of Canada Limited

Larry Reimer

for the appellant Able Atlantic Taxi (1992) Limited

Edmund A. Clarke

for the respondent

HEARD: December 11, 2000

On appeal from the orders of Justice Victor Paisley dated October 13, 1999 and Justice James M. Spence dated May 29, 2000.

E N D O R S E M E N T

[1] We are not persuaded that either Paisley J. or Spence J. erred in the exercise of their discretion in refusing to set aside the default judgment granted by Pitt J.

[2] As for the judgment of Paisley J., it turned on his finding that Ms. Wilson would suffer greater prejudice than GAN if the default judgment were to be set aside. In our view, given that GAN has recourse against its insured if called upon under s.258 of the Insurance Act, R.S.O. 1990, c.I-8, to pay the judgment, this finding does not represent an impermissible exercise of his discretion. This being so, there is no need to decide whether Paisley J. erred in refusing to add GAN as a third party under s.258(14) of the Act.

[3] Spence J. was alert to the factors and principles that are to be considered when asked to set aside a default judgment. On the record before him, he found that there was delay in seeking to set aside the judgment, being satisfied, as well, that there was no procedural injustice that resulted from the service of the statement of claim or the addition of the Able parties as defendants by Pitt J.

[4] We would not interfere with these findings. Nor are we prepared to interfere with his finding that greater prejudice would result to Ms. Wilson than to the Able appellant were the default judgment to be set aside. As the moving party must satisfy all of the factors stated by the cases before a default judgment can be set aside, it is unnecessary to consider whether there was a defence on the merits available to the Able appellant.

[5] Therefore the appeals are dismissed with costs.

(signed) “S.T. Goudge J.A.”

(signed) “S. Borins J.A.”

(signed) “R. J. Sharpe J.A.”