1316845 Ontario Limited v. Es-Lea Holdings Limited

1316845 Ontario Limited v. Es-Lea Holdings Limited

The appeal was dismissed because the appellants failed to maintain a continuing intent to defend the counterclaim, a finding reasonably supported by the evidence; their failure was not a mere technical slip.

Citation
2009 ONCA 622
Parties
Plaintiffs/defendants by Counterclaim (appellants): 1316845 Ontario Limited and Cosimo DiLollo; Defendants/plaintiffs by Counterclaim (respondents): Es-Lea Holdings Limited; Rino De Piero; Jack Frymer; Steinberg Morton Frymer LLP; Sam Stern; Ciarelli & Gareri Enterprises Inc.; Anna Maria Ciarelli; Nick Ciarelli; Dino Spirito; Frank Sgro; Capo Sgro LLP; 1346665 Ontario Inc.; Tony Fasulo; Heather Fasulo; John Bentivoglio
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
25 August 2009
Procedural Posture
Collection / Appeal From Superior Court of Justice Order Dated May 14, 2008
Outcome
Appeal dismissed
Legal Topics
Default Judgment, Intent to Defend, Setting Aside Default, Costs
Source Language
English
Civil Collection Procedure Default Judgment Intent to Defend Setting Aside Default Costs

Case Brief

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Parties

1316845 Ontario Limited and Cosimo DiLollo

Plaintiffs/defendants by Counterclaim (appellants)

Es-Lea Holdings Limited; Rino De Piero; Jack Frymer; Steinberg Morton Frymer LLP; Sam Stern; Ciarelli & Gareri Enterprises Inc.; Anna Maria Ciarelli; Nick Ciarelli; Dino Spirito; Frank Sgro; Capo Sgro LLP; 1346665 Ontario Inc.; Tony Fasulo; Heather Fasulo; John Bentivoglio

Defendants/plaintiffs by Counterclaim (respondents)

Procedural Posture

Collection / Appeal From Superior Court of Justice Order Dated May 14, 2008

Legal Issues

  1. 1 Whether the appellants maintained a continuing intent to defend the counterclaim
  2. 2 Whether the failure to defend was excusable or a technical slip
  3. 3 Entitlement to costs following dismissal of the appeal

Ratio Decidendi

The appeal was dismissed because the appellants failed to maintain a continuing intent to defend the counterclaim, a finding reasonably supported by the evidence; their failure was not a mere technical slip.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed.
  • Respondents awarded costs of $3,675 inclusive of disbursements and GST.