De Morales v. Lafontaine-Rish Medical Group Ltd., 2009 ONCA 87

CITATION: De Morales v. Lafontaine-Rish Medical Group Ltd., 2009 ONCA 87

DATE: 20090128

DOCKET: C49229

COURT OF APPEAL FOR ONTARIO

Gillese, MacFarland and LaForme JJ.A.

BETWEEN:

Susana Martinez De Morales

Plaintiff (Respondent)

and

Lafontaine-Rish Medical Group Ltd., Alvin James Anderson, Canderm Pharma Inc. and Bioform Medical Inc., Lafontaine Jeneusse Corporation

Defendants (Appellant)

Counsel:

Robert Zigler, for the appellant

Bois P. Wilson and François Sauvageau, for the respondent

Heard: January 28, 2009

On appeal from the order of Justice David Aston of the Superior Court of Justice, dated July 4, 2008.

APPEAL BOOK ENDORSEMENT

[1] We would dismiss the appeal. The motion judge applied the correct principles although he did not expressly set them out. He was fully justified in concluding that Mr. Froom made the deliberate choice not to file a statement of defence. As this court stated in Schill & Beninger Plumbing & Heat Ltd. v. Gallagher Estate 2001 CanLII 24134 (ON CA), [2001] O.J. No. 260 at para. 11: “Even if a viable defence was presented the intentional refusal to defend…stands as a permanent bar to intervention.”

[2] We note that even today no statement of defence has been filed, which makes it difficult to assess whether – much less contend for – there is a good defence on the merits. Like the motion judge, we view the award of punitive damages as high. However, not a single authority was provided to support the contention that it is more than is necessary to serve the purpose for which it was awarded. In the circumstances, there is no basis on which to interfere with the amount awarded.

[3] Accordingly, the appeal is dismissed with costs to the respondent fixed at $7,500, all inclusive.