Stoughton Trailers Canada Corp. v. James Expedite Transport Inc., 2008 ONCA 817

CITATION: Stoughton Trailers Canada Corp. v. James Expedite Transport Inc., 2008 ONCA 817

DATE: 20081203

DOCKET: C48675

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Simmons JJ.A.

BETWEEN:

Stoughton Trailers Canada Corp.

Plaintiff (Respondent)

and

James Expedite Transport Inc., York Region Courier Service Ltd., Jet Express Canada (2000) Inc., R.E.X. Courier Inc., and Jim Raso also known as Gennaro Raso

Defendants (Appellants)

Counsel:

Brent Pearce, for the appellants

Justin M. Jakubiak, for the respondent

Heard and released orally: November 20, 2008

On appeal from the order of Justice Beth A. Allen of the Superior Court of Justice dated March 18, 2008.

ENDORSEMENT

[1] In our view, the motion judge erred in principle in holding that her discretion to set aside the consent order was circumscribed by the factors set out by Master Sandler in Chitel v. Rothbart (1984), 42 C.P.C. 217. As pointed out by Sachs J. in Beetown Honey Products Inc. (Re) (2003), 2003 32918 (ON SC), 67 O.R. (3d) 511 (S.C.J.), the discretion is broader and should be exercised where necessary to achieve the justice of the case. See also the decision of the Divisional Court in Chitel at (1985), 2 C.P.C. (2d) xlix. In this case, there were reasonable grounds for questioning the correctness of the default judgment especially as against the individual defendant. Also, the funds to comply with the order, while not paid by December 31, 2007, were available before the return date of the motion.

[2] Accordingly the appeal is allowed. The parties have advised this court that all amounts ordered have now been paid. Therefore, the order of Allen J. of March 18, 2008 is set aside and the order of October 23, 2007 is varied to provide that a new date for the motion to set aside the default judgment is to be agreed upon by the parties.

[3] Accordingly, the appeal is allowed with costs fixed at $3,500 inclusive of G.S.T. and disbursements.

Signed: "M. Rosenberg J.A."

"K. Feldman J.A."

"Janet Simmons J.A."