Friday, March 14, 2014

Setting aside a default - Five factors

Traditionally there are three factors considered in setting aside a default. But Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 lists five:

[48]       The court must consider the following three factors:

(a) whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether there is a plausible excuse or explanation for the defendant's default in complying with the Rules;  and

(c) whether the facts establish that the defendant has an arguable defence on the merits.

[49]       To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd2007 ONCA 333, 87 O.R. (3d) 479 (C.A.), at para. 2:

(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e) the effect of any order the court might make on the overall integrity of the administration of justice.

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