Test to Set-Aside a Default Judgement: Difference between revisions
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20. At the hearing, neither party presented case law as to the interpretation of the meaning of “meritorious defence.” In Shamar, supra, I stated: | 20. At the hearing, neither party presented case law as to the interpretation of the meaning of “meritorious defence.” In Shamar, supra, I stated: | ||
::On at least a simple reading of the claim and defence together, the defence appears to me to be reasonably coherent and plausible…. | ::<i>On at least a simple reading of the claim and defence together, the defence appears to me to be reasonably coherent and plausible….</i> | ||
21. I accept that the plaintiff here may have a strong case such that the defence (in particular, that the wrong entity is being sued) will not prevail at trial. But I respectfully do not see that a judge on a motion to set aside a default is called upon in effect to determine whether the defence will prevail at trial: the test must be less onerous than that. See <i>Heasman v Mac’s Convenience Store Inc., 2015 ONSC 2290 (CanLII), (2015) O.J. No. 1746, 252 A.C.W.S. (3d) 576 (Div. Ct.)</i><ref name="Heasman"/>. | 21. I accept that the plaintiff here may have a strong case such that the defence (in particular, that the wrong entity is being sued) will not prevail at trial. But I respectfully do not see that a judge on a motion to set aside a default is called upon in effect to determine whether the defence will prevail at trial: the test must be less onerous than that. See <i>Heasman v Mac’s Convenience Store Inc., 2015 ONSC 2290 (CanLII), (2015) O.J. No. 1746, 252 A.C.W.S. (3d) 576 (Div. Ct.)</i><ref name="Heasman"/>. |
Revision as of 15:18, 11 February 2022
Caselaw.Ninja, Riverview Group Publishing 2021 © | |
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Date Retrieved: | 2024-11-23 |
CLNP Page ID: | 1869 |
Page Categories: | [Rule 11 - Default Proceedings (SCSM Rules)] |
Citation: | Test to Set-Aside a Default Judgement, CLNP 1869, <6M>, retrieved on 2024-11-23 |
Editor: | Sharvey |
Last Updated: | 2022/02/11 |
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O. Reg. 258/98: RULES OF THE SMALL CLAIMS COURT
11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that,
- (a) the party has a meritorious defence and a reasonable explanation for the default; and
- (b) the motion is made as soon as is reasonably possible in all the circumstances. O. Reg. 78/06, s. 24.
Adam Macarthur Electrical Contracting Ltd. v Lamb Development Corporation, 2017 CanLII 37773 (ON SCSM)[2]
11. The test for setting aside a default judgment in Small Claims Court is set out in Rule 11.06, as follows:
- 11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that,
- (a) the party has a meritorious defence and a reasonable explanation for the default; and
- (b) the motion is made as soon as is reasonably possible in all the circumstances.
- ...
20. At the hearing, neither party presented case law as to the interpretation of the meaning of “meritorious defence.” In Shamar, supra, I stated:
- On at least a simple reading of the claim and defence together, the defence appears to me to be reasonably coherent and plausible….
21. I accept that the plaintiff here may have a strong case such that the defence (in particular, that the wrong entity is being sued) will not prevail at trial. But I respectfully do not see that a judge on a motion to set aside a default is called upon in effect to determine whether the defence will prevail at trial: the test must be less onerous than that. See Heasman v Mac’s Convenience Store Inc., 2015 ONSC 2290 (CanLII), (2015) O.J. No. 1746, 252 A.C.W.S. (3d) 576 (Div. Ct.)[3].
22. As in Shamar, supra, I have read the draft defence along with the claim and the affidavit material, and in that context the defence appears to me to be reasonably coherent and plausible. I would therefore find that the test of “meritorious defence” is met.
References
- ↑ O. Reg. 258/98: RULES OF THE SMALL CLAIMS COURT, <https://www.ontario.ca/laws/regulation/980258>, retrieved 2022-02-11
- ↑ 2.0 2.1 Adam Macarthur Electrical Contracting Ltd. v Lamb Development Corporation, 2017 CanLII 37773 (ON SCSM), <https://canlii.ca/t/h4c74>, retrieved on 2022-02-11
- ↑ 3.0 3.1 Heasman v Mac’s Convenience Store Inc., 2015 ONSC 2290 (CanLII), <https://canlii.ca/t/gh4kp>, retrieved on 2022-02-11