Ontario Civil


Judgements and Orders

SETTING ASIDE
University satisfied test for setting aside default judgment, writ of execution and garnishment

On April 3, 2012, plaintiff obtained $163,000 default judgment against defendant university. On April 12, 2012, plaintiff obtained writ of execution, and on April 16, 2012, it issued garnishment notice, from which it recovered $163,000. University moved to set aside default judgment, writ and garnishment. Motion granted. Plaintiff’s action alleged that parties had entered into agreement for plaintiff to assist university in recruitment of students and share tuition fees. It claimed university had breached its fiduciary duty by cancelling agreement and establishing satellite campus in Toronto without involvement of plaintiff. In its proposed statement of defence, university claimed it had cancellation rights under arrangement if certain levels of recruitment were not achieved or minimal levels were not reached. University said that it was indebted to plaintiff for only $52,000, and thus, it had been overbilled. Thus, save for $52,000, university had shown defence for claim upon which default judgment was based. There was also genuine issue for trial about whether relationship between parties was fiduciary. University satisfied test for setting aside default judgment, writ of execution and garnishment. Save for $52,000, garnished monies should be returned to university.

Education Invention Centre of Canada v. Algoma University (Feb. 24, 2015, Ont. S.C.J., Perell J., File No. CV-11-433568) 250 A.C.W.S. (3d) 112.

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