COURT OF APPEAL FOR ONTARIO

CITATION: Wayne v. 1690416 Ontario Inc., 2013 ONCA 108

DATE: 20130220

DOCKET: C56126

BEFORE: Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Linda Wayne, Glenn Kiff and Jason Kiff o/a East Village Coffeehouse

Plaintiffs (Respondents)

and

1690416 Ontario Inc.

Defendant (Appellant)

COUNSEL:

P. Wardle and E. Pleet, for the appellant

Jennifer Quick, for the respondents

HEARD: February 19, 2013

On appeal from the judgment of Justice Ian F. Leach of the Superior Court of Justice, dated September 18, 2012.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals the order of Leach J. of the Superior Court of Justice dated September 18, 2012, upholding an order setting aside the appellant’s statement of defence and dismissing its counterclaim. The appellant appeals on three grounds.

[2] First, the appellant contends that the motion judge erred by interpreting Rule 37.14 in too strict a fashion by using the language “might have led to a different result” as a de facto test for the application of the Rule.

[3] We disagree. The motion judge explicitly referred to the statutory language in Rule 37.14 which requires the balancing of the interests of the parties and depends on the evidence in each case. He then engaged comprehensively in precisely this balancing exercise.

[4] Second, the appellant contends that the motion judge erred by saying that the appellant’s motion before him was an improper collateral attack on the earlier Compliance Order of Morissette J.

[5] We do not accept this submission. It was obvious that there would be a linkage between the motion before the motion judge and previous orders in this long-running action.

[6] Finally, the appellant contends that in his balancing exercise the motion judge downplayed the short duration of the relevant delay by the appellant and ignored the fact that the appellant was self-represented at a crucial juncture.

[7] We disagree. In our view, the motion judge’s analysis of the relevant factors was comprehensive and persuasive. He stated his conclusion in this fashion at paras. 80-82:

In the case before me, I am not presented with a defendant guilty of “technical non-compliance”, offering a “reasonable explanation” for failure to abide by obligations in the rules and court orders, based on “unexpected or unusual contingencies”.

I am instead presented with a defendant that has wholly failed to comply with specific obligations arising pursuant to the Rules and a court order, provides no real explanation for the ongoing non-compliance, (let alone a reasonable one), and gives no indication as to when compliance might be expected. Moreover, all this takes place against the backdrop of a litigation history suggesting the defendant’s current failings are consistent with behaviour demonstrated in the past, as far as its approach to this litigation is concerned.

In such circumstances, I think the balancing exercise described by the Court of Appeal requires denial of the Rule 37.14 relief requested by the defendant.

[8] In our view, the record on the motion strongly supports this analysis and conclusion.

[9] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $9000 inclusive of HST and disbursements.