Continuing intention to defend required to set aside default judgment.

To set aside a default judgment there must be an intention to defend when the claim is first received.

That said, should the intention to defend cease before a defence is delivered, a motion to set aside default judgment will fail.

There must be a continuing intention to defend.

Thus, we see the Court of Appeal's decision in 1316845 Ontario Limited v. Es-Lea Holdings Limited, 2009 ONCA 622 holding:

Although we accept the appellants' submission that they had an intent to defend the counterclaim when the litigation started, we see no error in Justice Quigley's finding at para. 22 of his reasons that the appellants did not maintain their intent. ... Absent a continuing intend to defend, this appeal must be dismissed.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777