COURT OF APPEAL FOR ONTARIO

CITATION: Cowley v. Rode Estate, 2014 ONCA 248

DATE: 20140331

DOCKET: C58000

Rosenberg, LaForme and Tulloch JJ.A.

BETWEEN

Anton Cowley and Hector Fernando

Plaintiffs (Appellants)

and

The Estate of Rachel Millicent Rode

Defendant (Respondent)

S. Lenard Kotylo, for the appellants

Brian Belmont, for the respondent

Heard: March 27, 2014

On appeal from the order of Justice Kevin Whittaker of the Superior Court of Justice, dated November 5, 2013.

APPEAL BOOK ENDORSEMENT

[1] This action was dismissed in May 2012. Despite this fact, the appellants brought two motions for default judgment after May 2, 2012 without disclosing this fact and without complying with the direction of the Registrar as to the proper parties. The appellants brought the motion to set aside the dismissal over a year after the dismissal. Given this state of affairs, it has not been shown that the application judge erred in dismissing the application to set aside the dismissal. It was open to the application judge to find that the appellants did not move promptly and did not have a valid explanation for the delay.

[2] Finally, there are no grounds for interfering with the costs order. Given the state of affairs the order was appropriate.

[3] Accordingly, the appeal is dismissed with costs fixed at $8,000 inclusive of HST and disbursements.