Court of Appeal for Ontario

Citation: Aluminum Window Design Installations Inc. v. Grandview Living Inc., 2018 ONCA 838

Date: 2018-10-18

Docket: M49535 (C63782)

Motion Judge: Benotto J.A.

Between

Aluminum Window Design Installations Inc. Moving Party (Respondent)

and

Grandview Living Inc., John Matas and Gord Matas Responding Party (Appellants)

Counsel

George Corsianos, for the appellants

Gregory N. Hemsworth, for the respondent

Heard: October 5, 2018

Reasons for Decision

Overview

[1] The appellants move to review the order of the Deputy Registrar dismissing the appeal for delay. The order under appeal struck the appellants' statement of defence. The appellants received notice of the motion to strike the pleadings but did not attend. A brief overview of the facts follows.

The Underlying Action, the Order Appealed From, and the Appeal

[2] In August 2010, the respondent contracted to provide aluminum windows and glazing for the appellants' condominium project. In July 2015, the respondent commenced an action against the appellants for unpaid work. The appellants served and filed a statement of defence in September 2015. From October 2015 to September 2016 the respondent attempted to arrange a discovery plan. Ultimately, on September 14, 2016, Master Muir granted an order establishing a discovery plan. The appellants failed to comply.

[3] On February 9, 2017 the respondent properly served a notice of motion to strike the appellants' pleadings.

[4] The motion was returnable before Di Tomaso J. on April 20, 2017. The appellants filed no material on the motion and did not appear. The motion judge granted an order striking the appellants' pleadings and noting the pleadings closed. The appellants and their counsel were immediately told about the order and provided with a copy.

[5] On May 20, 2017 the appellants filed a Notice of Appeal of the order of April 20, 2017.

[6] On June 20, 2017, the Deputy Registrar for the Court of Appeal for Ontario delivered a Notice of Intention to Dismiss the Appeal for Delay. The appeal was dismissed for delay on July 18, 2017 because the appellant had not perfected the appeal.

[7] One year later, on July 30, 2018 the appellants filed a notice of motion to set aside the Deputy Registrar's order dismissing the appeal and to extend the time for perfecting the appeal. By that time the respondent had obtained judgment on its claim and attempted to examine the appellants in aid of execution.

[8] The appellants now seek to set aside the Deputy Registrar's order and extend the time for perfection of the appeal.

Analysis

[9] There are two reasons why this motion must fail: (i) the appellants are in the wrong court; and (ii) they do not meet the test for setting aside the Deputy Registrar's decision.

Wrong Court

[10] Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides as follows:

SETTING ASIDE, VARYING OR AMENDING ORDERS

Motion to Set Aside or Vary

37.14 (1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

(c) is affected by an order of a registrar,

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.

Order Made by Registrar

(3) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a registrar may be made to a judge or master, at a place determined in accordance with rule 37.03 (place of hearing of motions).

Order Made by Judge

(4) A motion under subrule (1) or any other rule to set aside, vary or amend an order of a judge may be made,

(a) to the judge who made it, at any place; or

(b) to any other judge, at a place determined in accordance with rule 37.03 (place of hearing of motions).

[11] The appellants did not attend the motion before Di Tomaso J. Therefore, the required procedure was to move to set aside the order before Di Tomaso J. on or immediately after April 20, 2017.

[12] The appellants did not do that. Nor did the appellants move to set aside the judgment that was ultimately obtained. Rule 19.08 provides as follows:

19.08 (1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.

(2) A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial may be set aside or varied by a judge on such terms as are just.

(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under rule 19.03.

[13] In Halow Estate v. Halow, 59 O.R. (3d) 211, this court states at para. 7:

The appellant having been noted in default, no appeal lies to this court from Wright J.'s order striking his statement of defence… For policy reasons discussed in National Bank, the appellant must exhaust his remedies in the court of first instance before an appeal will lie to this court. In this case, at the time the appellant filed his Notice of Appeal, he had already been noted in default. His remedy therefore lay under rule 19.03.

[14] Instead of applying under rr. 37 or 19, the appellants sought to appeal without exhausting their remedies in the court below. This court does not have jurisdiction to hear the appeal.

[15] On this basis alone the appellants' motion fails. However, even if this court had jurisdiction, the appellants have not met the test to set aside the order of the Deputy Registrar.

The Test to Set Aside the Order and Extend the Time to Perfect the Appeal

[16] The following factors are considered when an appellant seeks to set aside the order and extend the time to perfect the appeal:

• whether the moving party had an intention to appeal within the time for bringing an appeal;
• the length of the delay and the explanation for the delay;
• any prejudice to the respondent caused by the delay; and
• the justice of the case.

See Paulsson v. Cooper, 2010 ONCA 21, [2010] O.J. No. 123 at para. 2.

[17] The delay of a year to perfect the appeal is long and largely unexplained. Essentially, the appellants allege that they left the action and the appeal in the hands of their then lawyer and should not be responsible for their lawyer's conduct of the file. However, the email exchange on February 5, 2018 shows that the appellants were aware of the need to perfect.

[18] The delay has prejudiced the respondent which has been attempting to execute on the judgment.

[19] I turn to consider the justice of the case. Simply put, there is no merit to the appeal of the motion judge's order. The appellants allege that the motion judge erred in granting the order on the basis that striking out a defence is a severe remedy and the motion judge ought to have provided the appellants with an opportunity to cure the default. It is not clear how this could have happened when the appellants did not attend the motion or request more time. This makes no procedural or practical sense particularly in the context of the appellants' failure to abide by the court order for the discovery and production and their failure to appear or file materials for the motion. Therefore, there is nothing to suggest that the motion judge erred in fact or in law.

[20] Accordingly, the motion is dismissed with costs payable to the respondent in the amount of $15,000 inclusive of disbursements and HST.

M.L. Benotto J.A.