Defendants actively tried to avoid being served with statement of claim

Ontario civil | Civil Procedure


Defendants actively tried to avoid being served with statement of claim

Plaintiff picked worms which she sold to wholesalers, one of whom was defendant corporation. On June 1, 2012, plaintiff obtained default judgment against defendants for $280,786.28 representing unpaid deliveries of worms. Defendants learned of judgment in July, 2012, and on August 30, 2012, issued notice of motion to set aside default judgment. Defendants conceded that plaintiff was owed between $125,000 and $130,000. They claimed they were lulled into false sense of security after service of statement of claim because parties were attempting to resolve amount owing. Motion dismissed. There was evidence that defendants had actively tried to avoid being served with statement of claim. Defendants presented no evidence that amounts claimed by plaintiff were not accurate. Defendants were required to put forward something more than bald unsubstantiated statement that amount owing to plaintiff must be reduced by certain unquantified set off amounts. Defendants did not meet necessary burden to cause motion judge to exercise his discretion and set aside default judgment.
Tran v. Zaharis (Oct. 9, 2013, Ont. S.C.J., G.E. Taylor J., File No. C-976-11) 234 A.C.W.S. (3d) 873.

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