Friday, December 2, 2011

Setting aside a default

Roth v. Bourollias, 2011 ONCA 760, released today, deals with setting aside a default. 


In general on a motion to set aside a default, the court will consider: (a) whether the motion to set aside the judgment was brought promptly; (b) where there is a plausible excuse or explanation for the defendant's default in complying with the Rules of Civil Procedure; and (c) whether the facts establish at least an arguable case: Nelligan v. Lindsay, [1945] O.W.N. 295 (H.C.J.); Laredo v. Sinnadurai (2005), 78 O.R. (3d) 321 (C.A.); Morgan v. Toronto (Municipality) Police Services Board, [2003] OJ. No. 1106 at para. 19 (C.A.); MacNaughton v. The Royalton, 2011 ONSC 17. 


Today’s decision is a helpful appeal decision upholding, albeit slightly restating,  the long established test:


[1]              Justice Strathy addressed the motion based on the governing case law set out in Scaini v. Prochnicki, [2007] ONCA 63, which confirmed the factors from Reid v. Dow Corning Corp., (2001), 11 C.P.C. (5th) 80. He considered each of the four factors: (1) explanation for the ten-and-one- half year delay; (2) inadvertence in missing the deadline; (3) bringing the motion promptly after discovering the dismissal; and (4) prejudice to the defendant. He found in favour of the respondent on each of the factors. He found that there was no adequate explanation for the delay and that the appellant did not show diligence in prosecuting the action.



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