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"1080": {
"pageid": 1080,
"ns": 0,
"title": "Re-Entry by Landlord (CTA)",
"revisions": [
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"*": "[[Category:Eviction (Commercial Tenancy)]]\n[[Category:RTA Exempt Tenancies]]\n\n{{Citation: \n| categories = [Eviction (Commercial Tenancy)], [RTA Exempt Tenancies]\n| shortlink = 5q\n}}\n\n==2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149<ref name=\"Good Guys\"/>==\n\n[1] As a courtesy by letter dated June 17, 2019, this court\u2019s Senior Legal Officer alerted the parties to a potential problem regarding this court\u2019s jurisdiction to hear an appeal from an order granting vacant possession. She suggested that they could bring a motion before a single judge of this court or file a consent order transferring the appeal to the Divisional Court without the necessity of today\u2019s attendance.\n\n[2] The parties did not do so but argued that this court has jurisdiction to hear this appeal.\n\n[3] We disagree. <b><u>The application judge granted vacant possession to the respondent which, in our view, is caught under s. 78 (1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, when read in light of the statutory scheme set out in s. 74 to 78, which deal with who is entitled to possession after a notice under the Commercial Tenancies Act is served. The February 13, 2019 order of Hourigan J.A., refusing a stay of the order under appeal and consequentially granting a writ of possession, was ancillary to the order granting vacant possession. It is therefore not an impediment to the Divisional Court\u2019s jurisdiction to hear this appeal.</b></u>\n\n[4] As a result, the appeal from the January 23, 2019 order granting vacant possession must be made to the Divisional Court.\n\n[5] Accordingly, the appeal in this court is transferred to the Divisional Court pursuant to s. 110 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.\n\n<ref name=\"Good Guys\">2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149 (CanLII), <http://canlii.ca/t/j5jht>, retrieved on 2020-09-22</ref>\n\n\n==Mason Homes Limited v. Woodford, 2014 ONCA 816 (CanLII)<ref name=\"Woodford\"/>==\n[16] A proper analysis of ss. 18 and 19 of the Act would necessitate consideration not only of the timing of the re-entry, but also of whether the premises were abandoned when the re-entry occurred. <b><u>When premises have been abandoned, immediate re-entry by a landlord does not prejudice its ability to claim for the rent outstanding:</b></u> <i>Commercial Credit Corp. v. Harry D. Shields Ltd. (1980), 1980 CanLII 1617 (ON SC), 29 O.R. (2d) 106, at paras. 16-20 (H. Ct. J.)</i><ref name=\"Harry\"/>; 615314 Ontario Ltd. v. 396380 Ontario Inc., [1995] O.J. No. 1518 (Ont. Ct. J. Gen. Div.).\n\n[17] There was no evidence on the issue of abandonment adduced at trial because the Act was not pleaded and the respondents had, in any event, admitted that re-entry occurred on January 20, 2005. The trial judge did not, therefore, have a proper evidentiary foundation to conduct his analysis of the application of the Act. Instead, he equated a changing of the locks with a re-entry resulting in forfeiture of right to sue for the balance of the rent due and failed to conduct a meaningful analysis of the issue of abandonment.\n\n<ref name=\"Woodford\">Mason Homes Limited v. Woodford, 2014 ONCA 816 (CanLII), <http://canlii.ca/t/gfbv5>, retrieved on 2020-11-03</ref>\n<ref name=\"Harry\">Commercial Credit Corp. Ltd. v. Harry D. Shields Ltd. et al., 1980 CanLII 1617 (ON SC), <http://canlii.ca/t/g1hlt>, retrieved on 2020-11-03</ref>\n\n==Feeney v. Noble, 1994 CanLII 10538 (ON SC)==\n\n<b>Issue No. 1</b>\n\nSection 103 of the Landlord and Tenant Act, R.S.O. 1990, c. L.7 (the \"Act\"), provides as follows:\n\n::103(1) Despite section 98, 99, 100, 101 or 102, where a landlord in good faith requires possession of residential premises at the end of,\n:::(a) the period of the tenancy; or\n:::(b) the term of a tenancy for a fixed term,\n\nfor the purpose of occupation by himself or herself, his or her spouse or a child or parent of the landlord or the landlord's spouse, the period of the notice of termination required to be given is not less than sixty days.\n\n:...\n\nThe tenant submits that the notice of termination did not comply with s. 103(1) of the Act because Feeney was not the landlord at the appropriate time that the notice was given. In my opinion this is not the proper construction to be placed upon the Act. If it were a person could not purchase a property for his own use and gain possession on closing. He would have to purchase it and then give the appropriate notice and wait for the expiry of that notice before bringing the application to court. This is unreasonable and not within the intent of the Act. <b><u>It should be remembered that the notice itself does not evict the tenant. If the tenant chooses not to vacate, the landlord must still apply for an order of termination and writ of possession before the tenant must vacate.</b></u> If for some reason the purchase had not been completed Feeney would not have the status to bring the application. The important thing is to provide reasonable notice to the tenant.\n\n\n<ref name=\"Feeney\">Feeney v. Noble, 1994 CanLII 10538 (ON SC), <http://canlii.ca/t/g1g1d>, retrieved on 2020-11-03</ref>\n\n==Regina v. Doucette, 1960 CanLII 138 (ON CA)<ref name=\"Doucette\"/>==\n\nIt should be made clear at the outset that the recaption or resumption of possession of goods by the act of the owner through an agent or bailiff acting under his written authority, is not a lawful execution of any process against lands or goods, or is not the making of a lawful distress or seizure within the meaning of s.110 (c) of the Cr. Code which is directed against resistance to or wilful obstruction of any person engaged in the performance of such acts. This is placed beyond question by the decision of the Court of Appeal in <i>R. v. Shand (1904), 1904 CanLII 109 (ON CA), 7 O.L.R. 190</i><ref name=\"Shand\"/>.\n\n<b><u>The limitations upon the right of an owner to repossess his goods without process of law are stated clearly and succinctly</b></u> in 3 Blackstone, Commentaries, pp.3-4, from which I quote\n\n::Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, ... in which case the owner of the goods ... may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; ... if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favors and will justify his proceeding. But <b><u>as the public peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use provate force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.</b></u>\n\nThis passage in Blackstone was commented upon and applied by Parke, B., in Patrick v. Colerick (1838), 3 M. & W. 483. See also Davis v. Whitridge, (1847), 2 Strob. 232.\n\n<b><u>It is very clear that whatever rights the vendor or his assignee or their authorized agent might have had under the terms of the conditional sales contract (the purchase money being in arrear and unpaid) to enter upon Chappell's premises to resume possession of the goods in question, it would be illegal for them to take such possession by force.</b></u> Traders Bk. v. Browne Mfg. (1889), 18 O.R. 430, cited by counsel for the respondents is authority for this proposition. In Re Nu-Way Meat Market (1940), 22 C.B.R. 46, it was held that the liquidator might claim possession of a truck sold to a debtor under suspensive conditions of property, where the vendor had taken possession of it by force and deceit since the winding up, and had neglected to furnish the liquidator with the detailed account of what was still owned by the debtor; <b><u>whatever the terms of the deed, no one had the right to take the law into one's own hands.</b></u>\n\n[...]\n\n<b><u>There must be reasonable limits imposed upon the right of self-help assumed and asserted by private individuals in order to preserve peace and tranquillity and to avoid the evil consequences which are bound to flow from insistence upon a right to use private force.</b></u> Under s. 39 of the Cr. Code, the peaceable possessor of movable property under a claim of right is protected from criminal responsibility (although not from civil responsibility) for resisting its taking even by the person legally entitled.\n\n<ref name=\"Doucette\">Regina v. Doucette, 1960 CanLII 138 (ON CA), <http://canlii.ca/t/g18pq>, retrieved on 2020-09-11</ref>\n<ref name=\"Shand\">The King v. Shand, 1904 CanLII 109 (ON CA), <http://canlii.ca/t/htzk9>, retrieved on 2020-09-11</ref>\n\n==References=="
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"1101": {
"pageid": 1101,
"ns": 0,
"title": "Re-Opening an Application",
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"*": "[[Category:Rules of Civil Procedure (Ontario)]]\n\n==R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE, Rule 38<ref name=\"Reg194\"/>==\n\n38.11 (1) A party or other person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person\u2019s attention and names the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 38.11 (1); O. Reg. 132/04, s. 10; O. Reg. 55/12, s. 3.\n:(2) A motion under subrule (1) may be made,\n::(a) at any place, to the judge who granted the judgment;\n::(b) at a place determined in accordance with rule 37.03 (place of hearing of motions), to any other judge;\n::(c) to the Divisional Court, in the case of a judgment of that court. R.R.O. 1990, Reg. 194, r. 38.11 (2).\n\n:(3) On a motion under subrule (1), the judgment may be set aside or varied on such terms as are just. R.R.O. 1990, Reg. 194, r. 38.11 (3).\n\n<ref name=\"Reg194\">R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE, <https://www.ontario.ca/laws/regulation/900194>, reterived 2020-12-01</ref>\n\n==Fresh Network v. Alessandro, 2004 CanLII 30078 (ON SC)<ref name=\"Alessandro\"/>==\n\n<b><u>[14] The sole question raised by the motion at hand is whether the judgment is properly to be set aside against Joe because of a \u201cmistake\u201d within the meaning of Rule 38.11(1).</b></u>\n\n[15] It is apparent that Joe\u2019s \u201cmistake\u201d was to rely upon Domenic\u2019s assertion that Joe was \u201cout of the picture\u201d and their view that the new Form #1 filed October 3, 2003 was a full and conclusive defence for Joe. This was a conclusion as to the effect of the new Form #1. However, at the least, any person acting responsibly in his own self-interest would conclude that it would be wise to attend at the hearing to give evidence as to who had actual control of Farmers at the relevant times and that the new Form #1 was truthful in its assertion as to the July 1, 2003 date in the change of directors.\n\n[16] As I have said, Spence J. had before him the new Form #1. Spence J. seems to have implicitly made the finding that a new Form #1 does not impact to absolve a director/officer, as named by the pre-existing corporate profile in the public record of the Ministry, from liability to a third party under the relevant statutes until a new Form #1 is recorded (or at least filed) with the Ministry. Joe\u2019s mistake was to believe he would be \u201cout of the picture\u201d simply because of the new Form #1.\n\n[17] In my view, there was not a \u201cmistake\u201d within the meaning of Rule 38.11(1). Joe made an error of judgment in believing he was \u201cout of the picture.\u201d There was no mistake as to time or place of the hearing. Joe intentionally chose not to attend and, at best, relied upon his own opinion and his brother\u2019s lay opinion, as to their legal position. They assumed the risk of non-attendance at the hearing. Joe chose not to attend the hearing because of his belief as to the legal significance and impact of the new Form #1 and that Domenic\u2019s and his view would accord with the trial judge\u2019s view and findings.\n\n[18] In my view, <b><u>a defendant cannot intentionally ignore a trial when he should reasonably know he is clearly at risk of being held liable and then claim a \u201cmistake\u201d within the meaning of Rule 38.11(1) upon being found liable to the opposing party.</b></u> There is a paucity of case law in respect of Rule 38.11(1), specifically regarding the meaning of \u201cmistake.\u201d See generally Ewert v. Chapnick (1995), 37 C.P.C. (3d) 76 (Ont. Gen. Div.); Zsoldos v. Ontario Assn. of Architects, [2004] O.J. No. 309 (CA) (QL).\n\n<ref name=\"Alessandro\">Fresh Network v. Alessandro, 2004 CanLII 30078 (ON SC), <http://canlii.ca/t/1htph>, retrieved on 2020-12-01</ref>\n\n==Ivandaeva Total image Salon Inc. v. Hlembizky, 2003 CanLII 43168 (ON CA)<ref name=\"Ivandaeva\"/>==\n\n[27] Other than <i>Stanley Canada Inc. v. 683481 Ontario Ltd. (1990), 1990 CanLII 8098 (ON SC), 74 D.L.R. (4th) 528 (Ont. Gen. Div.)</i><ref name=\"Stanley\"/>, the cases that have considered the rule in its different forms do not discuss the meaning of \"affected by\". However, a review of the cases in which a successful motion has been brought under rule 37.14(1) and rule 38.11(1), which applies to applications, or their predecessors, to set aside or vary an order suggests that the order must be one that directly affects the rights of the moving party in respect to the proprietary or economic interests of the party. In addition, there is another broad group of cases, usually arising from the sealing of a court file, in which the media has complained that its right to freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms has been compromised and in which the principle of open and accessible court proceedings has been invoked. See, e.g., <i>Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, 211 D.L.R. (4th) 193.</i><ref name=\"Sierra Club\"/>\n\n<ref name=\"Ivandaeva\">Ivandaeva Total image Salon Inc. v. Hlembizky, 2003 CanLII 43168 (ON CA), <http://canlii.ca/t/1bv2j>, retrieved on 2020-12-01</ref>\n<ref name=\"Stanley\">Stanley Canada Inc. V. 683481 Ontario Ltd., 1990 CanLII 8098 (ON SC), <http://canlii.ca/t/gbdqh>, retrieved on 2020-12-01</ref>\n<ref name=\"Sierra Club\">Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] 2 SCR 522, <http://canlii.ca/t/51s4>, retrieved on 2020-12-01</ref>\n\n==2701988 Ontario Inc. v. Ok-Shim Jeong, 2020 ONSC 4455 (CanLII)<ref name=\"Ok-Shim\"/>==\n\n[1] This is a motion to set aside an order granted to the Applicant corporation on April 28, 2020, during the suspension of the court\u2019s regular operations due to the COVID-19 pandemic. At a telephone case conference, the court ordered the release of $350,000 to the Applicant. The Respondents, Ms. Jeong and the 2313067 Ontario Inc. (of which she is the principal) were not in attendance for the case conference. They submit that the order should be set aside pursuant to\nr. 38.11 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194 on the basis that they failed to attend the hearing of the application due to accident, mistake or insufficient notice.\n\n'''Test pursuant to r. 38.11'''\n\n[10] Rule 38.11(1) provides that a judgment on an application may be set aside for lack of or - insufficient notice. It reads:\n\n::38.11(1) A party or other person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person\u2019s attention and names the first available hearing date that is at least three days after service of the notice of motion.\n\n<b><u>[11] The parties agree that the analytical framework to be applied under r. 38.11 is the same as for a motion to set aside a default judgment under r. 19.08. As set out in <i>1493201 Ontario Ltd. v. Giannoylis, 2016 ONSC 1210</i><ref name=\"Giannoylis\"/>, at para. 12, the factors to consider are:\n\n::(a) Was the application made without notice or did the Respondent fail to appear at the hearing of the application through accident, mistake or insufficient notice?\n::(b) Was the Respondent\u2019s motion to set aside the judgment brought forthwith after the judgment came to her attention?\n::(c) Did the Respondent\u2019s motion name the first available hearing date that was at least three days after service of the notice of motion?\n::(d) Does the Respondent have an arguable defence on the merits?\n::(e) What is the potential prejudice to the Respondent should the motion be dismissed and what is the potential prejudice to the Applicant should the motion be allowed?\n::(f) What would be the effect of any order the Court might make on the overall integrity of the administration of justice?</b></u>\n\n[12] These factors are not to be considered as rigid rules. Instead, <b><u>the court must consider the particular circumstances of each case to determine whether the judgment should be set aside:</b></u> <i>Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at para. 50</i><ref name=\"McQueen\"/>; <i>Natural Energy Systems Inc. v. Hallett, 2019 ONSC 1372, at paras 39-40.</i><ref name=\"Hallett\"/>\n\n<ref name=\"Ok-Shim\">2701988 Ontario Inc. v. Ok-Shim Jeong, 2020 ONSC 4455 (CanLII), <http://canlii.ca/t/jbl5l>, retrieved on 2020-12-01</ref>\n<ref name=\"Giannoylis\">1493201 Ontario Limited v Giannoylis, 2016 ONSC 1210 (CanLII), <http://canlii.ca/t/gnd1n>, retrieved on 2020-12-01</ref>\n<ref name=\"McQueen\">Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 (CanLII), <http://canlii.ca/t/g65rt>, retrieved on 2020-12-01</ref>\n<ref name=\"Hallett\">Natural Energy Systems Inc. v. Hallett, 2019 ONSC 1372 (CanLII), <http://canlii.ca/t/hxs43>, retrieved on 2020-12-01</ref>\n\n==1202600 Ontario Inc. v. Jacob, 2012 ONSC 361 (CanLII)<ref name=\"Jacob\"/>==\n\n[70] A motion to set aside is but one step in the process to determine a matter on its merits. If a case obviously lacks merit, it would be contrary to the direction given by rule 1.04(1) to set the judgment aside.\n\n[71] Thresholds, while helpful in some circumstances in eliminating unnecessary procedures and providing predictability to the law, are generally not in harmony with the expansive interpretive approach described by rule 1.04 that focuses on just, final outcomes achieved in a timely way and at the least cost to the parties.\n\n[72] I am not saying that proper notice, which is an important aspect of natural justice, is not a significant factor in determining whether an outcome is just. However, an interpretation of rules 19.08 or 38.11 that is in harmony with rule 1.04(1) should not limit the court to consideration of a single threshold factor concerning the regularity of notice.\n\n[73] If, perhaps, a party is brought into court as a result of irregular service, I see no reason why the court should not take the opportunity, when the parties are before it, with the time and expense that this entails, to take a look - not a hard look - but a very practical look, to see whether there is any merit to the defendant\u2019s case when a plaintiff advances this argument.\n\n<b><u>[76] It is my view that rule 1.04 directs me to interpret rule 38.11 so as to consider all relevant factors that, on mature reflection, will secure the most just, most expeditious and least expensive determination of this proceeding on its merits.</b></u> These include:\n::a. the regularity of the procedures followed to obtain Default Judgment, including whether it is made on notice, or other factors affecting notice;\n::b. if regularly obtained, an explanation of the circumstances that led to Default Judgment, including accident, mistake or other personal circumstances of the defendant;\n::c. the timeliness of the procedures to set aside the judgment; and\n::d. the triable merits of the defence.\n\n[77] The latter three factors have been reformulated somewhat from how they were described in Chitel, supra, to reflect the more recent pronouncement of the Court of Appeal in <i>Morgan v. Toronto (City) Police Services Board, 2003 CanLII 14993 (ON CA), [2003] O.J. No. 1106 at para. 36.</i><ref name=\"Morgan\"/>\n\n<b>Analysis</b>\n\n::a) Failure to Provide Notice or Sufficient Notice\n\n[78] Mr. McCormick submits that he was not provided with notice or sufficient notice of the application leading to the Default Judgment of Sedgwick J. of April 25, 2007.\n\n[79] There seems little doubt that the process followed to obtain default judgment was irregular.\n\n[80] Although not raised in argument, I am of the view that this matter should never have been brought as an application. It is a garden variety debt collection case which is perfectly suited and normally prosecuted by way of an action.\n\n<b><u>[100] As such, I am not satisfied that the inadequacies of notice are sufficient to conclude that it is in the interests of justice to set aside the judgment on this basis alone, were this the applicable test, which I do not believe to be the case for rule 38.11.</b></u>\n::b) An explanation of the circumstances that led to the Default Judgment\n\n[101] As I have found that notice provided to Mr. McCormick was defective, this would explain the circumstances that led to the Default Judgment.\n::c) Timeliness of the procedures to set aside the Judgment\n\n<b><u>[143] While I find that the notice of application was defective and may have led Mr. McCormick to believe that judgment had already been obtained, I nevertheless dismiss the motion to set aside the Order of Sedgwick J. dated April 25, 2007.</b></u>\n\n<b><u>[144] I do so on the grounds that Mr. McCormick did not proceed expeditiously to set the motion down as required by rule 38.11.</b></u>\n\n[145] In addition, I conclude that the materials filed by Mr. McCormick do not meet the low threshold I apply in this issue to demonstrate a defence on the merits such that it would be contrary to the interest of justice to set aside the Default Judgment.\n\n[146] Accordingly, Mr. McCormick\u2019s motion to set aside the Order of Sedgwick J. dated April 25, 2007, is dismissed.\n\n<ref name=\"Jacob\">1202600 Ontario Inc. v. Jacob, 2012 ONSC 361 (CanLII), <http://canlii.ca/t/fpwwx>, retrieved on 2020-11-06</ref>\n<ref name=\"Morgan\">Morgan v. Municipality of Toronto Police Services Board, 2003 CanLII 14993 (ON CA), <http://canlii.ca/t/1brrk>, retrieved on 2020-11-06</ref>\n\n==Segura Mosquera v. Rogers Communications Inc., 2019 ONSC 6187 (CanLII)<ref name=\"Segura\"/>==\n\n[18] A central issue is whether this motion to set aside the dismissal order is governed by R. 37.14 or, as submitted by Rogers and the CCTS, is governed by R. 38.11, namely whether the plaintiff must demonstrate valid claims to have the dismissal order set aside.\n\n[19] Those Rules state:\n\n::37.14 (1) A party or other person who,\n::::(a) is affected by an order obtained on motion without notice;\n::::(b) fails to appear on a motion through accident, mistake or insufficient notice; or\n::::(c) is affected by an order of a registrar, \n\n:::may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person\u2019s attention and names the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 37.14 (1); O. Reg. 132/04, s. 9.\n\n:::(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just. R.R.O. 1990, Reg. 194, r. 37.14 (2).\n\n::38.11 (1) A party or other person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person\u2019s attention and names the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 38.11 (1); O. Reg. 132/04, s. 10; O. Reg. 55/12, s. 3. (emphasis added)\n\n[20] The requirements under R. 38.11 to set aside a judgment on the basis of mistake or accident, have been held to be the same as the requirements to set aside default judgment under R. 19.08; as held in <i>1493201 Ontario Ltd. v. Giannoylis 2016, 2016 ONSC 1210 (O.S.C.).</i><ref name=\"Giannoylis\"/> That court stated:\n\n::10 Given the similarity of these provisions and the circumstances in which they operate, it is my view that it is appropriate to adopt the test outlined in <i>Intact Insurance Company v. Kisel</i><ref name=\"Kisel\"/> for setting aside default judgments to motions to set aside judgment granted on an application under Rule 38.11.\n\n::11 <b><u>In Kisel the Ontario Court of Appeal stated that a Court has to decide whether, in the particular circumstances of the case, it is just to relieve a defendant from the consequence of default. The following criteria, although not rigid rules, apply to a motion (to set aside a default judgment) under Rule 19.08:</b></u>\n\n:::(a) Was the motion brought promptly after the Defendant learned of the default judgment?\n:::(b) Does the Defendant have a plausible excuse or explanation for the default?\n:::(c) Does the Defendant have an arguable defence on the merits?\n:::(d) What is the potential prejudice to the Defendant should the motion be dismissed, and the potential prejudice to the Plaintiff should the motion be allowed?\n:::(e) What would be the effect of any order the Court might make on the overall integrity of the administration of justice? (emphasis added)\n<b><u>\n::12 In light of Rule 38.11 and Kisel, the applicable criteria on a motion under Rule 38.11 are as follows:\n:::(a) Was the application made without notice or did the Respondent fail to appear at the hearing of the application through accident, mistake or insufficient notice?\n:::(b) Was the Respondent's motion to set aside the judgment brought forthwith after the judgment came to her attention?\n:::(c) Did the respondent's motion name the first available hearing date that was at least three days after service of the notice of motion?\n:::(d) Does the Respondent have an arguable defence on the merits? \n:::(e) What is the potential prejudice to the Respondent should the motion be dismissed and what is the potential prejudice to the Applicant should the motion be allowed?\n::::(f) What would be the effect of any order the Court might make on the overall integrity of the administration of justice? (emphasis added)\n::See also 1202600 Ontario Inc. v. Jacob, 2012 CarswellOnt 1335 (O.S.C.), para 76.</b></u>\n\n[21] The plaintiff did not commence a proceeding in this court in bringing her motion that was dismissed on November 23, 2018. The order in issue dismissed the plaintiff\u2019s motion for leave to transfer the SC Action to this court. Has such leave been granted, that order transfer would result in the SC Action being transferred to this court.\n\n[22] The plaintiff, pursuant to s. 107(1)(c) to (4) of the Courts of Justice Act R.S.O. 1990, Chapter C.34 (the \u201cCJA\u201d) and R. 37.17, may seek the transfer of her SC Action to this court by motion. Although she could have, she was not required to and did not commence an application seeking such transfer to this court.\n\n[23] It is not disputed that the plaintiff as a result of the November 23, 2018 dismissal order order remains entitled to proceed with the SC Action in that court. \n\n<ref name=\"Segura\">Segura Mosquera v. Rogers Communications Inc., 2019 ONSC 6187 (CanLII), <http://canlii.ca/t/j31cq>, retrieved on 2020-12-01</ref>\n<ref name=\"Kisel\">Intact Insurance Company v. Kisel, 2015 ONCA 205 (CanLII), <http://canlii.ca/t/ggv8t>, retrieved on 2020-12-01</ref>\n\n==References=="
}
]
}
}
}
}