Ontario Civil

Civil Procedure

Appeal to set aside default judgment was dismissed

Respondent was tenant who had slip and fall accident in 2003, on appellant landlords’ 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. Landlords’ 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. 

Ur-Rahman v. Mahatoo (July 8, 2016, Ont. C.A., J.C. MacPherson J.A., E.A. Cronk J.A., and M.L. Benotto J.A., CA C61704) Decision at 262 A.C.W.S. (3d) 325 was affirmed. 268 A.C.W.S. (3d) 48. 

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