DATE: 20040609

DOCKET: C41580

COURT OF APPEAL FOR ONTARIO

RE:

JOHN ANDREW CANAVAN and GAIL MARIE CANAVAN (Respondents (Plaintiffs)) – and – PAUL M. FELDMAN (Appellant (Defendant))

BEFORE:

MOLDAVER, SIMMONS and JURIANSZ JJ.A.

COUNSEL:

Janet E. Gross

for the appellant

George S. Glezos and Christine Snow

for the respondents

HEARD & ENDORSED:

June 7, 2004

On appeal from the order of Justice Ted Matlow of the Superior Court of Justice dated March 1, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] We would admit the fresh evidence. In our view, it was not reasonably available on March 1, 2004 given that counsel was only retained on February 23, 2004 and it could reasonably have impacted on the motion judge’s determination in the sense that it was credible and reliable and tended to confirm the appellant’s explanation for his delay.

[2] Accordingly, for that reason alone, we are of the view that the appeal must succeed and the noting in default should be set aside on such terms as are just (see rule 19.03(1)).

[3] In the particular circumstances of this case, given that the appellant has, for all intents and purposes, admitted liability, we would set aside the noting in default on the following terms:

(1) The appellant may deliver a statement of defence by no later than June 11, 2004, limited to the issue of damages.

(2) Discoveries on the issue of damages are to be completed by June 17, 2004.

(3) All necessary steps shall be taken to expedite the transcripts, if any, such that they will be available for the trial presently scheduled for June 21, 2004.

[4] With respect to costs, the motions judge made no order as to costs. We would not interfere with that disposition.

[5] As for the appeal, the appellant concedes that he should pay the reasonable costs of the respondents. We agree. In our view, costs should be awarded on a partial indemnity basis. Given that the appellant was successful, at least in part, and given the nature and complexity of the appeal and the awards normally made by this court in similar cases, we would fix the costs at $7,500 inclusive of GST and disbursements.