COURT OF APPEAL FOR ONTARIO

CITATION: AMV Leasing Limited v. De Palma, 2015 ONCA 200

DATE: 20150325

DOCKET: C59232

Simmons, Tulloch and Pardu JJ.A.

BETWEEN

AMV Leasing Limited and Lawlor Enterprises Inc.

Plaintiff/Respondents

and

Claudia De Palma, Vittoria De Palma, Castellini Homes Inc., Amlap Development Corp., and Antoinetta De Palma

Defendants

(Claudia De Palma – Appellant)

Eddy J. Battiston and Harold Rosenberg, for the appellants

Robert K. Brown, for the respondents

Heard: March 18, 2015

On appeal from the judgment of Justice David Price of the Superior Court of Justice, dated July 14, 2014.

APPEAL BOOK ENDORSEMENT

[1] The motion judge’s decision refusing to set aside the noting of default is a discretionary order. In reaching his decision, he considered all relevant circumstances including the fact that the appellant has not complied with an outstanding order for production – a factor that the motion judge concluded could prejudice the respondents. The appellant has not demonstrated any basis for setting aside the motion judge’s findings or his exercise of discretion.

[2] Since the respondents obtained an order to proceed under s. 69 of the Bankruptcy and Insolvency Act, we are not satisfied that rule 11 of the Rules of Civil Procedure is applicable in these circumstances. See Micallef v. Dodig, [2009] O.J. No. 5564 (Div. Ct.).

[3] The appeal is therefore dismissed. Costs of the appeal are awarded to the respondents on a partial indemnity basis, fixed in the amount of $5,500 inclusive of all applicable taxes and disbursements.