Success in Court – Motion to Set Aside a Default Judgment

Recently, a defendant moved to set aside a default judgment (Rule 19.08) in a case I was prosecuting. Generally, in determining whether to set aside a default judgment, the Ontario Court will consider the following five major factors:

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

b) Whether the defendant has a plausible excuse or explanation for the default;

c) Whether the defendant has an arguable defence on the merits;

d) The potential prejudice to the defendant should the motion be dismissed, and the potential prejudice to the plaintiff 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.[1]

The Court will not apply the above factors rigidly, but will decide whether it is just, in the particular circumstances of the case, to relieve a defendant from the consequences of default.

In this case of Michael’s Law Firm, the Court held that the defendant had not met his onus, and refused to set aside the default, upholding the default judgment. Costs were also awarded in my favor on the motion.

To contact Michael Lesage, please call 647-495-8995 or email him at michael@michaelsfirm.ca.

 [1]BASF Canada Inc. v. Ebreo et al, 2015 ONSC 1584. See also Harman Estate v. Campbell, [2015] O.J. 3157 (Ont. S.C.J.).

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