Defendant moved as quickly as court schedule allowed him to move to set aside summary judgment

Civil Practice and Procedure - Judgments and orders - Setting aside

Parties entered agreement of purchase and sale for purchase of plaintiffs’ residence but agreement did not close and plaintiffs sold their residence for less to another purchaser. Plaintiff sought damages from defendant and brought motion for summary judgment which was granted after defendant’s motion for adjournment, based largely on note from chiropractor that defendant could not attend in person, was denied . Defendant brought motion under R. 59.06(2)(a) of Rules of Civil Procedure to set aside summary judgment. Motion granted . New evidence of injuries suffered when defendant fell off ladder and in subsequent motor vehicle accident which court was not aware of at time of summary judgment motion satisfied court that it would have granted adjournment on terms that would have likely dealt with timetabling of motion. Defendant moved as quickly as court schedule allowed him to move to set aside summary judgment . There was no evidence of any difficulty in re-litigating issues raised by summary judgment motion. There was no real evidence of prejudice to plaintiffs beyond delay in terms of being able to enforce judgment as well as possible costs thrown away.

Giancola v. Dobrydnev (2019), 2019 CarswellOnt 14733, 2019 ONSC 5372, M.L. Edwards J. (Ont. S.C.J.).

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