





CITATION: Pitney Bowes of Canada Ltd. v. Homelife/United
      Realty Inc., 2011 ONCA 553



DATE: 20110811



DOCKET:  C53561



COURT OF APPEAL FOR ONTARIO



Goudge, Juriansz and MacFarland JJ.A.



BETWEEN



Pitney Bowes of Canada Ltd.



Plaintiff (Respondent)



and



Homelife/United Realty Inc.



Defendant (Appellant)



Atoosa Mahdavian, for the appellant



Inga Andriessen and Ann Hatsios, for the respondent



Heard: August 8, 2011



On appeal from the final order of Justice David Price of the
          Superior Court of Justice dated April 6, 2011.



APPEAL BOOK ENDORSEMENT



[1]

In our view the draconian step of striking out the Statement of Defence
    and Counterclaim was not justified in the circumstances of this case. This was
    not a case where there were repeated failures to comply. The former solicitors
    for the appellant were removed from the record by order in late February and
    the trial of the action scheduled to proceed at a blitz sitting of the court
    about one month later in April.

[2]

There was evidence of some efforts on the part of the appellant to
    retain counsel and of the difficulties they encountered which is not surprising
    in view of the proximity of the trial date.

[3]

In our view less draconian measures ought to have been considered and
    ought to have prevailed.  For example there could have been an extension of
    time granted failing which the appellant would be obliged to proceed without
    counsel.

[4]

The appeal is allowed and the order of Price J. is set aside.

[5]

Costs to the appellant fixed in the sum of $7,000.00 inclusive of
    disbursements and H.S.T.


