



COURT OF APPEAL FOR ONTARIO

CITATION:
1067609 Ontario Inc. (Turner's
    Garage) v. Schell, 2012 ONCA 310

DATE: 20120511

DOCKET: C54809

MacPherson, Gillese and Blair JJ.A.

BETWEEN

1067609 Ontario Inc., o/a Turners Garage

Plaintiff (Respondent)

and

Lyndel Schell and BDO Canada Limited, Trustee in
    Bankruptcy for David Schell

Defendants (Appellants)

D. Andrew Thomson, for the appellants

David A. Morin, for the respondent

Heard and released orally: May 9, 2012

On appeal from the order of Justice Edward J. Koke of the
    Superior Court of Justice, dated December 5, 2011.

ENDORSEMENT

[1]

The appellants were served with the statement of claim on August 12,
    2010.  They delivered, but did not file, a statement of defence.  Ultimately,
    they were noted in default and an undefended trial date was set for September
    12, 2011.

[2]

Shortly before the scheduled trial date, the appellants brought a motion
    in which they sought, among other things, to set aside the noting in default
    and extend the time for filing the statement of defence.

[3]

In detailed reasons for decision, the motion judge carefully went over
    the factual background.  He then articulated the legal principles that govern
    the setting aside of a noting in default.  The appellant accepts that his
    articulation of the governing legal principles is accurate.  Thereafter, the
    motion judge gave extensive reasons for concluding that the appellants failed
    to demonstrate a continuing intention to defend.  In summary, these reasons
    show that despite being repeatedly advised of the need to file the appropriate
    documents or suffer the legal consequences, it was not until August 23, 2011 
    some six days before the scheduled trial date and more than a year after having
    been served with the statement of claim  that the appellants retained a lawyer
    and instructed him to bring a motion to set aside the default judgment.

[4]

The motion judge also found that the appellants explanation for their
    failure to file the statement of defence within a reasonable time period was
    both vague and incredible.  Again, he gave thoughtful reasons for this
    finding.

[5]

Further, the motion judge found that the appellants had failed to bring
    their motion to set aside expeditiously.  This finding too, was fully available
    to the motion judge on the record.

[6]

Setting aside is a discretionary order.  We see no error in the motion
    judges exercise of discretion in refusing to set aside the noting in default. 
    On the contrary, on the record before us, the motion judge was fully justified
    in dismissing the motion to set aside.

[7]

Accordingly, the appeal is dismissed.  Costs of the appeal to the
    respondent fixed at $8,000, inclusive of disbursements and applicable taxes.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

R.A.
    Blair J.A.


