DATE: 20030918

DOCKET: C37401 M30290

COURT OF APPEAL FOR ONTARIO

RE: NIPPON EXPRESS CANADA LTD. (Plaintiff (Respondent)) v. WILLIAM PROVAN and WILLIAM PROVAN carrying on business as GLOBAL TRADE SERVICES (Defendants (Appellants))

BEFORE: LASKIN, FELDMAN and ARMSTRONG JJ.A.

COUNSEL: Donald S. Morris for the respondent Angela Assuras for the appellants

HEARD: September 10, 2002

E N D O R S E M E N T

[1] This is an appeal from the order of Justice Greer of the Superior Court of Justice dated November 14, 2001 in which she dismissed the appellants’ application to set aside the default judgment of Justice Festeryga of the Superior Court dated July 10, 2001.

[2] Counsel for the appellants argued that because the cause of action asserted in the statement of claim was for fraud, that the resulting judgment for $143,462.06 was not a liquidated sum as required by rule 19.04 (1)(a). Counsel relied upon the judgment of this court in Schill et al v. Gallagher, [2001], O.J. No. 260. We are satisfied that the Schill case is distinguishable from the case at bar. In that case, the court had some doubt as to the amount in issue and the need to justify it. We have no such doubt in this case. The amount of $143,462.06 was supported by a detailed schedule of invoices. In any event, we note that the court in Schill simply set aside the default judgment with leave to the plaintiff to move again on proper material. The court refused to set aside the noting in default.

[3] Counsel for the appellant raised other arguments concerning the service of the statement of claim and the failure to comply with the provisions of Rule 19. We are satisfied that there was proper service of the statement of claim, that the default judgment was properly obtained under rule 19.04 (1)(a) and that Greer J. properly applied the test for setting aside a default judgment as set out in Chitel v. Rothbart [1988], O.J. No. 1197.

[4] In our view, Justice Greer committed no error in principle in refusing to exercise her discretion to set aside the default judgment. Accordingly the appeal is dismissed. It is unnecessary to deal with the motion to quash the appeal and the related issue concerning the filing of fresh evidence. However, we do wish to note that counsel for the respondent acknowledged that there was substantial duplication between the judgment of Festeryga J. and a restitution order of the Ontario Court of Justice dated January 23, 2003. Counsel for the respondent made it clear that his client had no intention of pursuing double recovery.

[5] The respondent shall have its costs of the appeal on a partial indemnity basis fixed at $4,800 including disbursements and Goods and Services Tax.

“J. I. Laskin J.A.”

“K. Feldman J.A.”

“Robert P. Armstrong J.A.”