



COURT OF APPEAL FOR ONTARIO

CITATION:
Wayne v. 1690416 Ontario
    Inc., 2013 ONCA 108

DATE: 20130220

DOCKET: C56126

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Linda Wayne, Glenn Kiff and Jason Kiff o/a East
    Village Coffeehouse

Plaintiffs (Respondents)

and

1690416 Ontario Inc.

Defendant (Appellant)

P. Wardle and E. Pleet, for the appellant

Jennifer Quick, for the respondents

Heard: February 19, 2013

On appeal from the judgment of Justice Ian F. Leach of
    the Superior Court of Justice, dated September 18, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals the order of Leach J. of the Superior Court of
    Justice dated September 18, 2012, upholding an order setting aside the
    appellants statement of defence and dismissing its counterclaim. The appellant
    appeals on three grounds.

[2]

First, the appellant contends that the motion judge erred by
    interpreting Rule 37.14 in too strict a fashion by using the language might
    have led to a different result as a
de facto
test for the application
    of the Rule.

[3]

We disagree. The motion judge explicitly referred to the statutory
    language in Rule 37.14 which requires the balancing of the interests of the
    parties and depends on the evidence in each case. He then engaged
    comprehensively in precisely this balancing exercise.

[4]

Second, the appellant contends that the motion judge erred by saying
    that the appellants motion before him was an improper collateral attack on the
    earlier Compliance Order of Morissette J.

[5]

We do not accept this submission. It was obvious that there would be a
    linkage between the motion before the motion judge and previous orders in this
    long-running action.

[6]

Finally, the appellant contends that in his balancing exercise the
    motion judge downplayed the short duration of the relevant delay by the
    appellant and ignored the fact that the appellant was self-represented at a
    crucial juncture.

[7]

We disagree. In our view, the motion judges analysis of the relevant
    factors was comprehensive and persuasive. He stated his conclusion in this
    fashion at paras. 80-82:

In the case before me, I am not presented with a defendant
    guilty of technical non-compliance, offering a reasonable explanation for
    failure to abide by obligations in the rules and court orders, based on
    unexpected or unusual contingencies.

. . .

I am instead presented with a defendant that has wholly failed
    to comply with specific obligations arising pursuant to the Rules and a court
    order, provides no real explanation for the ongoing non-compliance, (let alone
    a reasonable one), and gives no indication as to when compliance might be
    expected. Moreover, all this takes place against the backdrop of a litigation
    history suggesting the defendants current failings are consistent with behaviour
    demonstrated in the past, as far as its approach to this litigation is
    concerned.

In such circumstances, I think the balancing exercise described
    by the Court of Appeal requires denial of the Rule 37.14 relief requested by
    the defendant.

[8]

In our view, the record on the motion strongly supports this analysis
    and conclusion.

[9]

The appeal is dismissed. The respondent is entitled to its costs of the
    appeal fixed at $9000 inclusive of HST and disbursements.


