DATE: 20031024

DOCKET: C39655, M29881

COURT OF APPEAL FOR ONTARIO

RE: ANTIQUE TREASURES OF THE WORLD INC. (Plaintiff/ Respondent) and MICHELE BAUER (Defendant/Appellant) and OAKVILLE ANTIQUE MALL INC. – and between – MICHELLE BAUER (plaintiff by Counterclaim/Appellant) – and – ANTIQUE TREASURES OF THE WORLD INC. and LUCIE BRINGS (Defendants by Counterclaim/Respondents)

BEFORE: MORDEN, GILLESE and ARMSTRONG JJ.A.

COUNSEL: Lucie Brings in person Rosemary Fisher for the defendant/appellant Michelle Bauer

HEARD: October 20, 2003

RELEASED ORALLY: October 21, 2003

On appeal from the judgment of Justice A. Donald K. MacKenzie of the Superior Court of Justice dated January 30, 2003.

E N D O R S E M E N T

[1] We do not think that MacKenzie J. erred in dismissing the defendant’s motion. The ground of the motion was that, in light of Dunn J.’s order of May 16, 2002, the plaintiff followed the wrong procedure in obtaining the default judgment. MacKenzie J. was right not to accede to this ground. Dunn J.’s order as signed and entered did not impose the obligation on the plaintiff to move for judgment and neither, on the facts of this case, do the Rules of Civil Procedure. Accordingly, the default judgment was properly granted.

[1] The appeal is dismissed. In these circumstances, it is unnecessary to deal with the motion to quash.

[2] [Following submissions on costs] We award the costs of the appeal to the respondent fixed in the amount of $10,500, inclusive of disbursements and G.S.T.

“J.W. Morden J.A.”

“E.E. Gillese J.A.”

“R.P. Armstrong J.A.”