CITATION: Fountas Holdings Corporation v. J.S. Melo Inc., 2011 ONCA 61
DATE: 20110121
DOCKET: C52511
COURT OF APPEAL FOR ONTARIO
Laskin, Lang and LaForme JJ.A.
BETWEEN
Fountas Holdings Corporation
Plaintiff/Defendant to the Counterclaim (Appellant)
and
J.S. Melo Inc.
Defendant/Plaintiff by Counterclaim (Respondent)
A. Irvin Schein, for the appellant
John R. Crouchman, for the respondent
Heard: January 20, 2011
On appeal from the order of Justice Michael J. Quigley of the Superior Court of Justice, dated July 26, 2010.
APPEAL BOOK ENDORSEMENT
[1] In our view, the interests of justice require setting aside the dismissal order. The motion judge erred by failing to give effect to three important factors: first, that the plaintiff did not receive the status notice or later dismissal order; second, that after learning of the dismissal order the plaintiff moved promptly to set it aside; and third, that the plaintiff learned of the dismissal order less than three months after it was made, when it tried to set the action down for trial.
[2] Had the plaintiff received the status notice and moved within 90 days it would have had the right under rule 48.14 to set the action down for trial. In that case, the plaintiff’s failure to move the action along earlier, and any prejudice suffered by the defendant in the intervening years would have been irrelevant. From the record before us, we can assume that the plaintiff would have set the action down for trial within the 90 day period in rule 48.14. Accordingly, it is just that the plaintiff be permitted to do so.
[3] The appeal is allowed and the registrar’s order dated January 29, 2010 is set aside. The plaintiff shall have 30 days from today’s date to set this action down for trial.
[4] We think this is an appropriate case to order no costs of either the motion or the appeal.