





CITATION:
McCalla v. Sliwin, 2011
          ONCA 754




DATE:  20111129



DOCKET: C53566



COURT OF APPEAL FOR ONTARIO



Doherty, Armstrong JJ.A. and Hoy J. (
ad hoc
)



BETWEEN



Luna McCalla



Plaintiff (Respondent)



and



Albert Sliwin, Avon Sportswear Limited, Albert
          Sliwinski Limited
, Faylaura Investments Inc. and
Shain Sportswear
          Limited



Defendants (
Appellants
)



Michael R. Kestenberg, for the defendants (
appellants
)



John R. Evans and Neil J. Keating, for the plaintiff (respondent)



Heard:
November 28, 2011



On appeal from the judgment of Justice Gray of the Superior
          Court of Justice dated March 29, 2011.



APPEAL BOOK ENDORSEMENT



[1]

The appellant moved under Rule 37.14 to set aside the order striking the
    statement of defence.  As we read the reasons, the motion judge found that the
    non-attendance by counsel on the day of the initial motion was not on account
    of mistake or accident, but was the culmination of a pattern of conduct
    intended to delay and stonewall the action in the hope that the plaintiffs
    would not pursue their claims (see paras. 3, 40, 55 and 57 of motion judges
    reasons).  That factual finding is fully justified on this record.  Counsel for
    the appellants acknowledges that without a finding of accident or mistake,
    the appellants could not access relief under Rule 37.14.

[2]

The appeal is dismissed.  Costs to the respondents in the amount of
    $7,500, inclusive of HST and disbursements.


