Wednesday, September 12, 2012

Setting aside a default judgment

CIBC Mortgages Inc. v. Kwaw, 2012 ONCA 602 gives a brief but useful restatement of the law regarding setting aside default judgments:

[2] In particular, it is implicit in the motion judge's reasons that he was prepared to accept that the first two branches of the test (the absence of delay and an adequate explanation of the circumstances giving rise to the default) may have been satisfied. However, the appellant's motion to set aside the default judgment against him foundered on the third branch of the test. Although the default judgment sounds in fraud, the appellant failed to establish any arguable defence on the merits to either the Bank's fraud claim or its negligence claim. Simply put, there was no evidence of an arguable defence to either cause of action. We note that, to this date, there is no explanation forthcoming from the appellant as to what happened to the money in question.

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