Court File and Parties

Citation: McCalla v. Sliwin, 2011 ONCA 754

Date: 2011-11-29

Docket: C53566

Court of Appeal for Ontario

Before: Doherty, Armstrong JJ.A. and Hoy J. (ad hoc)

Between

Luna McCalla Plaintiff (Respondent)

and

Albert Sliwin, Avon Sportswear Limited, Albert Sliwinski Limited, Faylaura Investments Inc. and Shain Sportswear Limited Defendants (Appellants)

Counsel: Michael R. Kestenberg, for the defendants (appellants) John R. Evans and Neil J. Keating, for the plaintiff (respondent)

Heard: November 28, 2011

On appeal from the judgment of Justice Gray of the Superior Court of Justice dated March 29, 2011.

Appeal Book Endorsement

[1] The appellant moved under Rule 37.14 to set aside the order striking the statement of defence. As we read the reasons, the motion judge found that the non-attendance by counsel on the day of the initial motion was not on account of “mistake or accident”, but was the culmination of a pattern of conduct intended to delay and stonewall the action in the hope that the plaintiffs would not pursue their claims (see paras. 3, 40, 55 and 57 of motion judge’s reasons). That factual finding is fully justified on this record. Counsel for the appellants acknowledges that without a finding of “accident or mistake”, the appellants could not access relief under Rule 37.14.

[2] The appeal is dismissed. Costs to the respondents in the amount of $7,500, inclusive of HST and disbursements.