Misir v. Misir

Misir v. Misir

The reinstated default judgment and subsequent enforcement orders must be set aside because the respondent and his counsel failed to make full and fair disclosure at a without‑notice attendance; Brown J. proceeded on the incorrect premise that no defence had been filed and fairness required setting aside the orders and reconsideration with proper disclosure.

Citation
2017 ONCA 675
Parties
Plaintiff (respondent in Appeal): Randy Misir; Defendant (appellant): Geree Misir; Defendant (appellant): Rajendra Narine (a.k.a. Hardial Singh)
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
30 August 2017
Procedural Posture
Civil Appeal From Superior Court Orders Concerning Reinstated Default Judgment and Enforcement / Appeal to the Court of Appeal of Ontario (final Reasons)
Outcome
Appeal allowed; orders of Morgan J. and Cavanagh J. set aside; costs reserved with directions for written submissions.
Legal Topics
Setting Aside Default Judgment, Without‑notice Motions and Full and Fair Disclosure, Service of Documents, Court‑supervised Sale of Property, Costs
Source Language
English
Civil Procedure Enforcement of Judgments Remedies Setting Aside Default Judgment Without‑notice Motions and Full and Fair Disclosure Service of Documents Court‑supervised Sale of Property Costs

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Parties

Randy Misir

Plaintiff (respondent in Appeal)

Geree Misir

Defendant (appellant)

Rajendra Narine (a.k.a. Hardial Singh)

Defendant (appellant)

Procedural Posture

Civil Appeal From Superior Court Orders Concerning Reinstated Default Judgment and Enforcement / Appeal to the Court of Appeal of Ontario (final Reasons)

Legal Issues

  1. 1 Whether the motion judge erred in dismissing the appellants' motion to set aside a reinstated default judgment
  2. 2 Whether the reinstatement order (Brown J.) should be set aside for failure to make full and fair disclosure in a without‑notice attendance
  3. 3 Whether the respondent's attendance and representations to the court amounted to adequate notice or disclosure

Ratio Decidendi

The reinstated default judgment and subsequent enforcement orders must be set aside because the respondent and his counsel failed to make full and fair disclosure at a without‑notice attendance; Brown J. proceeded on the incorrect premise that no defence had been filed and fairness required setting aside the orders and reconsideration with proper disclosure.

Court Disposition

Appeal allowed; orders of Morgan J. and Cavanagh J. set aside; costs reserved with directions for written submissions.

Orders

  • Appeal allowed.
  • Orders of Morgan J. dated July 19, 2016 and of Cavanagh J. dated November 23, 2016 are set aside.