





CITATION:
Fountas Holdings Corporation v. J.S. Melo
          Inc., 2011 ONCA 61



DATE: 20110121



DOCKET: C52511



COURT OF APPEAL FOR ONTARIO



Laskin, Lang and LaForme JJ.A.



BETWEEN



Fountas Holdings Corporation



Plaintiff/Defendant to the Counterclaim
          (Appellant)



and



J.S. Melo Inc.



Defendant/Plaintiff by Counterclaim (Respondent)



A. Irvin Schein, for the appellant



John R. Crouchman, for the respondent



Heard: January 20, 2011



On appeal from the order of Justice
          Michael J. Quigley of the Superior Court of Justice, dated July 26, 2010.



APPEAL BOOK ENDORSEMENT



[1]

In our view, the interests of justice require setting aside the
    dismissal order.  The motion judge erred by failing to give effect to three
    important factors:  first, that the plaintiff did not receive the status notice
    or later dismissal order; second, that after learning of the dismissal order the
    plaintiff moved promptly to set it aside; and third, that the plaintiff learned
    of the dismissal order less than three months after it was made, when it tried
    to set the action down for trial.

[2]

Had the plaintiff received the status notice and moved within 90 days it
    would have had the right under rule 48.14 to set the action down for trial.  In
    that case, the plaintiffs failure to move the action along earlier, and any
    prejudice suffered by the defendant in the intervening years would have been
    irrelevant.  From the record before us, we can assume that the plaintiff would
    have set the action down for trial within the 90 day period in rule 48.14. 
    Accordingly, it is just that the plaintiff be permitted to do so.

[3]

The appeal is allowed and the registrars order dated January 29, 2010
    is set aside.  The plaintiff shall have 30 days from todays date to set this
    action down for trial.

[4]

We think this is an appropriate case to order no costs of either the
    motion or the appeal.


