



COURT OF APPEAL FOR ONTARIO

CITATION: Alderton v. Haylor Properties Niagara Inc., 2018
    ONCA 483

DATE: 20180524

DOCKET: C64725

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

David Alderton

Plaintiff/Respondent

and

Haylor Properties Niagara Inc. and Andrea Wood

Defendants/Appellants

Aaron Rousseau, for the appellants

Barry W. Adams, for the respondent

Heard and released orally: May 22, 2018

On appeal from the
    order of Justice J.A. Ramsay of the Superior Court of Justice, dated November
    23, 2017.

REASONS FOR DECISION

[1]

This is an appeal of an order dismissing a
    motion to set aside a default judgment.

[2]

The respondent sued the appellants Haylor
    Properties Niagara Ltd. and its principal Andrea Wood for wrongful dismissal in
    an action commenced in 2011. A trial record was filed in November 2013 and, to
    accommodate the availability of the appellants counsel, a trial date was fixed
    for the sittings commencing September 7, 2015. In the interim, the appellants
    counsel was removed from the record, which prompted an adjournment of the
    trial. This pattern continued, with trial dates being fixed and adjournments
    sought so the appellants could retain new counsel. The trial was marked
    peremptory for a date in 2016, but adjourned on consent on condition that Ms.
    Wood attend for examination for discovery. Ultimately, the trial was marked
    peremptory for the trial sittings commencing November 7, 2016.

[3]

In September 2016, the respondent brought a
    motion to strike the appellants statement of defence after the appellants
    failed to deliver a notice of intent to act in person, and to appoint counsel
    for the corporate defendant. The motion was adjourned at the appellants
    request to October 5, 2016, after the appellants asserted they had new counsel.
    However no one attended at the return date of the motion and the statement of
    defence and counterclaim was struck.

[4]

The appellants were noted in default and the
    matter proceeded to an uncontested trial. Sweeny J. granted judgment and costs
    against the corporate appellant only, dismissing the action against Ms. Wood
    without costs.

[5]

The appellants motion under r. 19.08 to set
    aside the default judgment was dismissed by the motion judge, Ramsay J.

[6]

The motion judge referred to the factors set out
    in
Mountainview Farms Ltd. v. McQueen
, 2014
    ONCA 194, as applicable to a motion to set aside a default judgment. He
    accepted that the motion had been brought promptly and that the appellants had
    an arguable defence. He concluded however that the circumstances leading to the
    default had not been adequately explained, and that, if the order were made,
    the respondent would be prejudiced and the integrity of the system of justice
    would be impaired.

[7]

The appellants say the motion judge erred
    because (1) he failed to consider that they had a plausible explanation for
    their failure to attend at the uncontested trial; and (2) he made palpable and
    overriding errors of fact in concluding that the appellants had been intentionally
    delaying the matter.

[8]

We do not give effect to either ground of
    appeal.

[9]

First, as the motion judge observed, the issue
    was not whether the appellants were able to explain their failure to attend the
    uncontested trial. Their defence had been struck without leave to deliver
    another defence, and they had been noted in default. Pursuant to r. 19.02(3),
    in the absence of any direction to the contrary, they were not entitled to
    notice of the uncontested trial, or, without leave of the court, to participate
    further in the action. The appellants knew the matter had been scheduled to
    proceed in the sittings on a peremptory basis, had not attended to oppose the
    motion to strike their defence, and cannot therefore rely on any asserted
    failure to receive notice from the court that the uncontested trial was
    proceeding. As the motion judge observed, any explanation for why the
    appellants did not attend the uncontested trial was beside the point.

[10]

The second ground of appeal is that the motion
    judge made palpable and overriding errors of fact. First, the appellants argue
    that the motion judge erred in saying that the appellants had not paid certain
    costs ordered against them in September 2015. After being interrupted in his
    oral reasons by the respondents counsel, the motion judge acknowledged this
    error, and it cannot reasonably be concluded that this played any role in his
    decision, let alone that it was an overriding factor.

[11]

Second, the appellants assert that the motion
    judge erred in saying that they were never examined for discovery, when Ms.
    Wood was in fact examined. This was an error, however nothing turns on it. Ms.
    Wood was only discovered after repeated adjournments and cancellations as a
    condition of the court adjourning a trial date that had been marked peremptory.
    The motion to set aside the default judgment was not refused because the
    appellants failed to attend for discovery, but because of their pattern of
    delay, which led to a decision by the court to strike their pleading. In all
    the circumstances the conclusion of the motion judge here was reasonable. A
    motion judges decision on a motion to set aside a default judgment is
    discretionary and attracts deference on appeal:
Mountainview
, at para. 55.

[12]

Finally, we decline to address the appellants
    argument, which was raised for the first time today, that the motion judge
    failed to consider prejudice to the appellants in refusing to set aside the
    default judgment.

[13]

The appeal is therefore dismissed. Costs to the respondent in the
    amount agreed between counsel, $3,500, inclusive of disbursements and
    applicable taxes.

S.E. Pepall J.A.

K. van Rensburg J.A.

David M. Paciocco
    J.A.


