Thursday, October 24, 2013

Default set aside without consideration of merits

As a general rule, one of the factors to be considered in setting aside a default is the merit of the claim, appeal, application etc against which default is made. In an interesting chambers decision this week in the Court of Appeal for Ontario Mr Justice Doherty found that, where the default was brief and the cause of the default technical, a consideration of the merits was unnecessary and default would be set aside directly. The decision is, as yet, unreported but I have a copy should anyone need it: Fitzpatrick v Squires October 23, 2013 OCA unreported.

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