DATE: 20040913

DOCKET: C41025 and C41026

COURT OF APPEAL FOR ONTARIO

RE:

PATRICE KWIATKOWSKI-LEBLANC and 737164 ONTARIO INC. (Plaintiffs/Appellants) – and – KWIATKOWSKI ENTERPRISES LIMITED and DANIEL KWIATKOWSKI (Defendants/ Respondents)

BEFORE:

ROSENBERG, LANG and JURIANSZ JJ.A.

COUNSEL:

Melvyn L. Solmon and Raffaele Sparano for the appellants

Mark Taggart for the respondents

HEARD:

September 10, 2004

On appeal from the judgment of Justice James C. Kent of the Superior Court of Justice dated October 20, 2003.

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

[1] We were not persuaded that because the defendants’ counsel did not send a copy of their September 5, 2000 letter to the court to the plaintiffs, the usual test for setting aside an order dismissing an action does not apply.

[2] The motions judge was entitled, on the evidence before him, to find that the plaintiff did not adequately explain her delay in bringing her motion once she learned of the dismissals, and that the defendants would suffer prejudice. Appeal dismissed. Costs fixed at $3500 inclusive of GST and disbursements.

“R.G. Juriansz J.A.”