WestlawNext Canada insight Blog

Digest of the Week | Default Proceedings

Digest of the Week | Default Proceedings

Default judgment against defendants stood based on evidence that the defendants were aware of action against them.



Ur-Rahman v. Mahatoo

2016 CarswellOnt 10716, 2016 ONCA 555, E.A. Cronk J.A., J.C. MacPherson J.A., M.L. Benotto J.A. (Ont. C.A.); affirming (2016), 2016 ONSC 56, 2016 CarswellOnt 448, G. Dow J. (Ont. S.C.J.) [Ontario]



Default proceedings -- Application to set aside default judgment -- Effect of delay in applying



Respondent was tenant who had slip and fall accident in 2003, on appellant landlord's property -- Tenant brought action against landlords, and had landlords noted in default in 2005 -- Tenant did not obtain default judgment until 2014 -- Landlords claimed they only learned of action during enforcement proceedings in 2015 -- Landlords applied to set aside default judgment, but were unsuccessful -- Landlords claimed that they acted promptly after learning of default, and had meritorious case -- Landlords claimed that setting aside default was in interest of justice -- Landlords appealed from motion judgment -- Appeal dismissed -- Motion judge made proper finding that it was likely landlords had prior knowledge of action -- Landlords were found to have evaded service -- Landlord's own evidence was that they learned of court proceeding in 2014, but took no steps to inquire as to nature of proceeding for six months -- There was evidence that tenant resided at property, contrary to landlord's assertions -- Findings were based in evidence -- Motion judge made no error.
© Copyright WestlawNext Canada, Thomson Reuters Canada Limited. All rights reserved.