



COURT OF APPEAL FOR ONTARIO

CITATION: Birchland Plywood-Veneer Ltd. v. Activa Trading Co.
    Ltd., 2018 ONCA 846

DATE: 20181024

DOCKET: M49487 (C59583)

Hoy A.C.J.O, Sharpe and Fairburn JJ.A.

BETWEEN

Birchland Plywood-Veneer Ltd.

Responding Party (Respondent)

and

Activa Trading Co. Ltd. and MLS Machinery
    Incorporated

Moving Parties (Appellants)

Terry Corsianos, for the moving parties

Dhiren R. Chohan, for the responding party

Heard: October 18, 2018

REASONS FOR DECISION

[1]

On April 14, 2015, the Deputy Registrar dismissed the moving parties
    appeal for delay. In May 2018, the moving parties brought a motion to set aside
    the Deputy Registrars order. The motion was dismissed by MacFarland J.A. The
    moving parties now bring a subsequent motion to review the order of MacFarland
    J.A.

[2]

The responding party commenced an action against
    the moving parties in July 2010. The action pertained to the responding partys
    purchase of equipment from the moving parties in November 2007. Default
    judgment was obtained and damages were awarded in March 2011. Although the
    moving parties filed a notice of motion for an order to set aside the default
    judgment in May 2011, the motion was not heard until September 2014. The moving
    parties tried to explain the over three-year delay between the default judgment
    and the motion as having resulted from the incompetence of a series of lawyers
    they had retained.

[3]

The motion judge gave multiple reasons for
    dismissing the motion to set aside the default judgment. He rejected the moving
    parties position that they had not been served with the statement of claim in
    August 2010; found that, through their principal, the moving parties had attempted
    to manipulate the litigation; concluded that the responding party had been
    prejudiced by the delay; and determined that the delay had not been adequately
    explained.

[4]

After a correct recitation of the law and
    careful review of the evidence, the motion judge ultimately concluded that the
    equities of the situation demand that the motion be dismissed despite the
    prejudice that would flow to the [moving parties] from failure to set aside
    default Judgment and the obvious and meaningful weight that Courts often accord
    this final consideration.

[5]

The moving parties then appealed to this court,
    after which more delay accrued. Although the moving parties were twice ordered
    to perfect their appeal by specified dates, they did not do so.

[6]

Accordingly, on April 14, 2015, the Deputy
    Registrar dismissed the appeal for delay. The moving parties did nothing to
    resurrect their appeal for over three years. The only explanation offered by
    the moving parties for failing to act is that they had again received poor legal
    representation. They point to a single email exchange with a prior lawyer in
    April 2015 as evidence that they thought things were in hand and that the
    lawyer was drafting the application to place the appeal back on the list. We
    agree with MacFarland J.A.s observation that [i]t is impossible on this
    record to make any conclusion except that this litigation was seemingly
    parked until the timing served [the moving parties] better.

[7]

It is against that factual backdrop  almost
    eleven years since the original purchase that ultimately gave rise to the
    dispute  that MacFarland J.A. concluded that the moving parties had lost their
    right to have their case determined on the merits. Although the moving parties
    argue that they have a strong defence to the claim on the merits, the original
    motion judge, whose decision would be the subject of any potential appeal, was
    cognizant of the fact that arguable defences ought to be given every
    reasonable opportunity to be advanced in Court. Yet he concluded that, taking
    into account all of the circumstances, the equities of the situation demanded
    that the motion be dismissed. We see no error in that approach.

[8]

Nor do we see error in MacFarland J.A.s careful
    review of the factual record or her application of the legal principles to
    those facts. As she found, the delay has been extraordinary, the moving
    parties have failed to address that delay in any meaningful way, and prejudice
    would result to the responding party if the matter were to be permitted to
    proceed at this stage.

[9]

The motion is dismissed. Costs to the respondent
    fixed in the sum of $5,000 inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.
Robert J. Sharpe J.A.
Fairburn J.A.


