Karrys v. Bank of Montreal

Karrys v. Bank of Montreal

The motion judge erred by concluding the appellant had sought numerous extensions based on the Bank's material and by failing to consider whether the counterclaim raised a set-off; accordingly the appeal is allowed, the motion judge's dismissal is set aside and the appellant is granted 15 days to deliver a motion to set aside the default judgment, with costs in the cause to be determined by the motion judge.

Citation
2016 ONCA 338
Parties
Appellant (defendant): Peter J. Karrys; Respondent (plaintiff): Bank of Montreal
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
17 June 2016
Procedural Posture
Collection / Appeal From Motion Judge Order Dated October 22, 2015
Outcome
Appeal allowed; motion judge's order dismissing the motion set aside.
Legal Topics
Default Judgment, Set Aside, Set Off, Counterclaim, Extensions of Time, Costs
Source Language
English
Civil Civil Procedure Appeal Default Judgment Set Aside Set Off Counterclaim Extensions of Time +1 more

Case Brief

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Parties

Peter J. Karrys

Appellant (defendant)

Bank of Montreal

Respondent (plaintiff)

Procedural Posture

Collection / Appeal From Motion Judge Order Dated October 22, 2015

Legal Issues

  1. 1 Whether the motion judge erred in finding the appellant had requested numerous extensions prior to default judgment being signed
  2. 2 Whether the motion judge erred by refusing to grant alternative relief to allow a motion to set aside the default judgment
  3. 3 Whether the motion judge failed to consider whether the counterclaim raised a set-off

Ratio Decidendi

The motion judge erred by concluding the appellant had sought numerous extensions based on the Bank's material and by failing to consider whether the counterclaim raised a set-off; accordingly the appeal is allowed, the motion judge's dismissal is set aside and the appellant is granted 15 days to deliver a motion to set aside the default judgment, with costs in the cause to be determined by the motion judge.

Court Disposition

Appeal allowed; motion judge's order dismissing the motion set aside.

Orders

  • Motion judge’s order dismissing the motion is set aside.
  • Appellant is granted 15 days to deliver a motion to set aside the default judgment.