The principles for setting aside a default judgment are well known.
Among other things there must be a viable defence presented but that is not enough. An explanation of why a defence was not delivered is required and if there is an intentional refusal to file a defence the explanation will not be accepted.
Yesterday's Court of Appeal decision in De Morales v. Lafontaine-Rish Medical Group Ltd., 2009 ONCA 87 makes this clear.
The Court held:
He was fully justified in concluding that Mr. Froom made the deliberate choice not to file a statement of defence. As this court stated in Schill & Beninger Plumbing & Heat Ltd. v. Gallagher Estate [2001] O.J. No. 260 at para. 11:
"Even if a viable defence was presented the intentional refusal to defend…stands as a permanent bar to intervention."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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