Fernandez v. Unique Auto Collision Network Solution Corp.

Fernandez v. Unique Auto Collision Network Solution Corp.

The appeal was allowed because the motion judge effectively granted default judgment when the motion sought only a writ of possession, the earlier default judgment had been set aside and not reinstated, and the materials before the motion judge were inadequate to support the relief; therefore the judgment and writs of possession were set aside.

Citation
2012 ONCA 118
Parties
Plaintiff (respondent): Frank Fernandez; Defendant (appellant): Unique Auto Collision Network Solution Corp.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
21 February 2012
Procedural Posture
Civil / Appeal to Court of Appeal From Superior Court Judgment; Motion for Writ of Possession
Outcome
Appeal allowed; judgment and award of Allen J. set aside; writs of possession set aside; no order as to costs.
Legal Topics
Default Judgment, Writ of Possession, Setting Aside Judgment, Motion Practice, Costs
Source Language
English
Civil Procedure Property Enforcement Default Judgment Writ of Possession Setting Aside Judgment Motion Practice Costs

Case Brief

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Parties

Frank Fernandez

Plaintiff (respondent)

Unique Auto Collision Network Solution Corp.

Defendant (appellant)

Procedural Posture

Civil / Appeal to Court of Appeal From Superior Court Judgment; Motion for Writ of Possession

Legal Issues

  1. 1 Whether motion judge granted default judgment beyond the relief sought
  2. 2 Whether an earlier default judgment had been set aside and not reinstated
  3. 3 Whether the material filed supported the relief requested

Ratio Decidendi

The appeal was allowed because the motion judge effectively granted default judgment when the motion sought only a writ of possession, the earlier default judgment had been set aside and not reinstated, and the materials before the motion judge were inadequate to support the relief; therefore the judgment and writs of possession were set aside.

Court Disposition

Appeal allowed; judgment and award of Allen J. set aside; writs of possession set aside; no order as to costs.

Orders

  • Appeal allowed
  • Judgment and award of Allen J. set aside