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.

 

29 comments:

Anonymous said...

Howdy, I am new to running a blog and internet sites in general and was curious about how you got the "www" included in your domain name?

I see your domain name, "http://www.blogger.com/comment.g?blogID=4937285970642106606&postID=287145025130876647" has
the www and my web address looks like, "http://mydomain.com".
Do you know the best way I can alter this? I'm using Wordpress platform. Appreciate it

my web site: webster

Anonymous said...

Hello just wanted to give you a quick heads up.
The words in your article seem to be running off
the screen in Internet explorer. I'm not sure if this is a formatting issue or something to do with internet browser compatibility but I thought I'd post to let you know.
The style and design look great though! Hope you get the problem fixed soon.
Many thanks

Also visit my web blog - http://www.skhugrowth.com/news/articleView.html?idxno=147
Also see my website > marshalls

Anonymous said...

Hi, I am new to running a blog and websites in general and was wondering how you got the "www" included in your web address name?
I see your domain name, "http://www.blogger.com/comment.g?blogID=4937285970642106606&postID=287145025130876647" has the
www and my web address looks like, "http://mydomain.com".
Do you know the best way I can change this? I'm using Wordpress. Thanks

Look at my web page :: cost driveway

Anonymous said...

Hey! I'm at work surfing around your blog from my new iphone! Just wanted to say I love reading through your blog and look forward to all your posts! Carry on the fantastic work!

Also visit my page; pakovanje

Anonymous said...

Do you mind if I quote a several of your blogposts as long as I
provide credit and sources returning to your site: http://www.
blogger.com/comment.g?blogID=4937285970642106606&postID=287145025130876647.
I am going to aslo make sure to give you the proper anchor text hyperlink using your webpage title: Blogger: Morton's Musings. Please make sure to let me know if this is acceptable with you. Thankyou

Also visit my web page; disaffiliate

Anonymous said...

Hi! I know this is kinda off topic nevertheless
I'd figured I'd ask. Would you be interested in trading links or maybe guest authoring a
blog article or vice-versa? My blog discusses a lot of the same topics
as yours and I think we could greatly benefit from each other.
If you might be interested feel free to shoot me an email.
I look forward to hearing from you! Great blog by the way!


my webpage: trees

Anonymous said...

Superb blog! Do you have any tips and hints for aspiring writers?

I'm hoping to start my own website soon but I'm a little lost on everything.
Would you propose starting with a free platform like Wordpress or go for a paid option?

There are so many options out there that I'm completely confused .. Any ideas? Bless you!

my blog :: removal los

Anonymous said...

Hey! Quick question that's totally off topic. Do you know how to make your site mobile friendly? My web site looks weird when viewing from my iphone 4. I'm trying to find a template
or plugin that might be able to correct this problem.
If you have any suggestions, please share. Many thanks!


my site: http://www.4networking.biz
My website > trake

Anonymous said...

The other day, while I was at work, my sister stole my iPad
and tested to see if it can survive a forty foot drop, just so she can be a youtube sensation.
My iPad is now destroyed and she has 83 views. I know this is entirely off
topic but I had to share it with someone!

Review my weblog Removal tree

Anonymous said...

My spouse and I stumbled over here coming from a different web page and thought I might as well check things out.
I like what I see so now i am following you. Look forward
to looking over your web page again.

My website - packaging

Anonymous said...

Hey there! I know this is kinda off topic but I was wondering which blog platform are you using for
this site? I'm getting fed up of Wordpress because I've had issues
with hackers and I'm looking at options for another platform. I would be great if you could point me in the direction of a good platform.

Here is my blog strec

Anonymous said...

First of all I would like to say excellent blog! I had a quick question that I'd like to ask if you don't mind.

I was interested to find out how you center yourself and clear your head before writing.
I've had difficulty clearing my mind in getting my thoughts out there. I do enjoy writing however it just seems like the first 10 to 15 minutes are generally lost just trying to figure out how to begin. Any suggestions or tips? Appreciate it!

Feel free to surf to my web-site ... information

Anonymous said...

Howdy! I could have sworn I've been to this site before but after reading through some of the post I realized it's new to me.
Nonetheless, I'm definitely delighted I found it and I'll be book-marking and checking back often!



Also visit my blog :: recovery
My web page - help

Anonymous said...

Hello! I've been following your weblog for some time now and finally got the bravery to go ahead and give you a shout out from Porter Texas! Just wanted to tell you keep up the fantastic work!

Feel free to visit my web site - blog

Anonymous said...

Hi, i read your blog from time to time and i own a similar one
and i was just wondering if you get a lot of spam responses?

If so how do you protect against it, any plugin or anything you can recommend?
I get so much lately it's driving me mad so any help is very much appreciated.

my site :: weblog

Anonymous said...

This doesn't really have to do with the topic right now, but I wanna ask if you know where I might obtain a good captcha plugin that I could use on my blog?? I'm implementing the
same blog system as you and I'm having difficulty locating one?

my homepage ... wiki.beagleboard.de

Anonymous said...

Good day! Do you know if they make any plugins to assist with SEO?
I'm trying to get my blog to rank for some targeted keywords but I'm not seeing very
good gains. If you know of any please share. Cheers!

Take a look at my webpage - asphalt driveway

Anonymous said...

Hey I know this is off topic but I was wondering if you knew of any
widgets I could add to my blog that automatically tweet
my newest twitter updates. I've been looking for a plug-in like this for quite some time and was hoping maybe you would have some experience with something like this. Please let me know if you run into anything. I truly enjoy reading your blog and I look forward to your new updates.

Feel free to surf to my site :: whaling

Anonymous said...

want to affiliate physical products, then you'd want to probably work with Amazon or.

An online marketing system is the perfect way to get started online, because you get to build your list and get educated at the same time.
Instead target and focus your internet marketing campaign towards your target audience and target market to achieve more success.



Feel free to visit my webpage Web design (www.facebook.com)

Anonymous said...

The only time we ever really buted heads was when they were talking about
the Video Game Circus. Just then they arrived at the back
steps of deck leading up to Panchito's. Well, I thought since I was going to the boat show in the morning,
that we could make a breakfast date out of it.


Take a look at my site ... boom beach hack

Anonymous said...

With havin so much content do you ever run into any
issues of plagorism or copyright violation? My site has a lot of exclusive content I've either written myself or
outsourced but it looks like a lot of it is popping
it up all over the internet without my agreement. Do you
know any techniques to help prevent content from being ripped off?
I'd really appreciate it.

Visit my web site - free live sex chat

Anonymous said...

The cathedral measures 601 feet long, 146 feet
wide, and 10 ccm high. When the stone had to product be as pper Vaasu Principles.
The walls flanking the stairs, were decorated with ceramic life
size reliefs of lions on a dark blue background. Lighting
installatiojs operate in emergency mode and point the way comfortably, and at the lowest level visible to a programmer.
Also known as a sameAs relationship, to link product the terms and instances in the BI domain.

Also visit my blog przemysł (http://www.innercompass.net/userinfo.php?uid=549234)

Anonymous said...

Everything is very open with a precise description of the challenges.
It was truly informative. Your site is extremely helpful.

Thanks for sharing!

Also visit my page; chaturbate free tokens (grapier.irucomm.com)

Anonymous said...

Everyone loves what you guys are up too. Such clever work and coverage!

Keep up the very good works guys I've added
you guys to my blogroll.

My blog post ... truck driver salary mn (bluegrass.app.bbb.org)

Anonymous said...

Hello there, I discovered your website via Google at the same time as searching for a similar subject, your site got here up, it seems great.
I've bookmarked it in my google bookmarks.
Hi there, simply became aware of your blog through Google,
and found that it's truly informative. I'm gonna be careful for brussels.
I will be grateful if you happen to proceed this in future.
Numerous people will be benefited out of your writing.
Cheers!

Check out my blog post a c e weight loss

Anonymous said...

Whilst recovering from his injury Gianluigi Buffon took
time off in Malta with his family at The Palace Malta Hotel in Sliema and had the opportunity to wine and
dine at the hotel. Though Group 'B' mates of them was easy comparing
Group 'A' but Philippines are enough confident for this largest Basketball event of Asia.
The final, true to form, saw top seed China placed against second seed
India.

Feel free to surf to my web-site ... Watch FIBA World Cup 2014 Final Live Stream

Anonymous said...

I used to be able to find good information from your blog articles.



Have a look at my site pest control review houston texas

Anonymous said...

The more we washed our hands with it, the more
these bits of spearmint were freed from the soap base.
The meal may last just one evening, but the recipe can carry on forever.
Handmade items are generally far better in more ways than one, and they should
be sought out whenever possible.

Here is my web site - vintage headbands

yanmaneee said...

pandora charms
jordan 11
off white
golden goose
supreme clothing
curry 5
lebron shoes
hermes online
supreme shirt
balenciaga shoes