This was a defendant’s motion for an order pursuant to Rule 19.03 of the Rules of Civil Procedure setting aside the noting of default and allowing him to file a statement of defence. The motion was granted after Maramger J. reviewed principles the Court will take into account when exercising its discretion to set aside and order noting a party in default.
Heard October 7, 2016 | Full Decision [CanLII]
This was a defendant’s motion for an order pursuant to Rule 19.03 of the Rules of Civil Procedure setting aside the noting of default and allowing him to file a statement of defence.
The plaintiffs served their statement of claim on June 4, 2015. They then granted a waiver of defence on a self-represented defendant until July 20, 2015. On July 21, 2015, the plaintiffs noted the defendant in default. On July 22, 2015, the defendant served a statement of defence, only to find out that he had been noted in default. This defendant then sought consent to file his statement of defence and was told by the plaintiff that he could do so on the condition that a limitation period argument would not be raised. The plaintiffs took no steps to obtain default judgement. On March 7, 2016, the defendant retained counsel and tried to enter a defence again.
As held in Intact Insurance Company v. Kisel, 2015 ONCA 205, the Court has broad discretion to set aside a noting of default on terms that are just:
When exercising its discretion to set aside a noting of default, a court should assess “the context and factual situation” of the case.¹ It should particularly consider such factors as the behaviour of the plaintiff and the defendant; the length of the defendant’s delay; the reasons for the delay; and the complexity and value of the claim. These factors are not exhaustive.² Some decisions have also considered whether setting aside the noting of default would prejudice a party relying on it.³ Only in extreme circumstances, however, should the court require a defendant who has been noted in default to demonstrate an arguable defence on the merits.⁴
Holding that the plaintiff’s case would not be prejudiced by the relief sought, each side was responsible for the delay in moving the matter forward and the terms for setting aside the noting of default should have been a reasonable amount for the costs of delay, Maramger J., granted the defendant’s motion.
Read the full decision on CanLII
¹ Metropolitan Toronto Condominium Corp. No. 706 v. Bardmore Developments Ltd. (1991),1991 CanLII 7095 (ON CA), 3 O.R. (3d) 278 (Ont. C.A.), at pp. 284-85 [“Bardmore”].
² Nobosoft Corp. v. No Borders Inc., 2007 ONCA 444 (CanLII), 225 O.A.C. 36, at para. 3; Flintoff v. von Anhalt, 2010 ONCA 786 (CanLII), [2010] O.J. No. 4963, at para. 7.
³ Enbridge Gas Distribution Inc. v. 135 Marlee Holdings Inc., [2005] O.J. No. 4327, at para. 8
⁴ Bardmore, note 1 at para 8.
