Setting aside a default judgement

In Eddy v. Erb, 2020 ONCJ 383, Justice Schwarzl went into this issue and gave the tests for setting aside a default.

The leading authorities to set aside a default are: HSBC v. Firestar, 2008 ONCA 894; TD Bank v. Radiancy Canada Inc., 2006 CanLII 33694; Ozugowski v. Lake Stars Corp., 2019 ONSC 2032.

[35.]      These authorities state that the moving party must satisfy three elements to be successful in setting aside a default:

(a)  That the motion to set aside was brought without delay after learning of the default;

(b)  That the circumstances giving rise to the default were adequately explained; and

(c)  The moving party has an arguable case on the merits.

[36.]      In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, the Ontario Court of Appeal added two further elements to those stated above, namely:

(d)   Assessing the potential elements to the parties if the motion is either granted or dismissed; and

(e)  The effect that any order made on the motion would have on the overall integrity of the administration of justice.

[37.]      Some cases in the Ontario Court of Justice have considered all of these elements when deciding whether to set aside a default:  P.M. v. S.M., 2014 ONCJ 496; S.O. v. E.A., 2017 ONCJ 213; E.S.R. v. R.S.C., 2019 ONCJ 381.

Particular facts from the case:

[39.]     In the case before me, the father failed to act promptly after learning of the default in early March, 2020. Despite (a) being warned in the past that the matter could conclude in his absence if he did not participate, (b) being notified that the trial management conference was peremptory on both parties, and (c) being ordered to pay $1000 in costs, the father did nothing until he lost access to the child in late June, 2020.  The father’s absences on several court dates prior to November 2019 further illustrate his somewhat cavalier approach to his MTC.

[40.]      When assessing his overall behaviour and in consideration of the communications sent by the court and Ms. Singh after November 13, 2019 I am not satisfied that the father’s explanations for letting the case “slip his mind” are reasonable.  While it is true that he suffered significant personal and business traumas in November, 2019 his own affidavit material says that the distraction from this case was for a couple of months, which means until mid- January 2020 at the latest.  These explanations do not address why he ignored all communications after that time.  These explanations do not explain why he failed to pay the cost order until late July, 2020.  They do not explain his tardiness before November, 2019.

Analysis:

The bar is high when there is a litigant who has defaulted on a case. This means that when a litigant defaults, the litigant has to immediately take steps to remedy the situation. The litigant cannot afford to wait. The longer the time passes, the more the problems arise. The Courts have laid down several tests to set aside the default. It is difficult to fulfill these tests. Reasons have to be given and detailed evidence has to be shown.

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