Monday, March 3, 2014

Irregularly signed default judgment not set aside as of right

The Toronto Dominion Bank v. Nawab, 2014 ONCA 152 deals with a default judgment signed before the time to defend had elapsed.  In such circumstances many would assume the judgment was to be set aside as of right and ex debito justitiae.  Such an assumption would be wrong.  The Court holds:

[2]        On the appellant’s first argument, the default judgment was signed before the 20 day period for service had elapsed and therefore was signed irregularly.  However, rule 2.01 of the Rules of Civil Procedure gives this court the power to relieve against irregularities.  The appellant was not prejudiced by the irregularity and therefore it is not in the interests of justice to set aside the default judgment as of right. 

No comments: