McIlwain v. Len’s Cove Marina Ltd.

McIlwain v. Len’s Cove Marina Ltd.

The motion judge erred by making factual findings and weighing Mountain View factors rigidly; the appellant produced a plausible explanation for the default (belief that NauticStar was addressing the issue under warranty) and an arguable defence as to the nature of the defects and warranty coverage (satisfying the 'air of reality' test), and the interests of justice required setting aside the default judgment to allow the action to be decided on the merits.

Citation
2025 ONCA 434
Parties
Plaintiff (respondent): Thomas McIlwain; Defendant (appellant): Len’s Cove Marina Ltd.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
16 June 2025
Procedural Posture
Civil Appeal / Appeal From Order Refusing to Set Aside Default Judgment Under Rule 19.08(1)
Outcome
Appeal allowed; default judgment and noting in default set aside
Legal Topics
Setting Aside Default Judgment, Rule 19.08(1), Mountain View Factors, Arguable Defence / Air of Reality, Manufacturer Warranty Relevance, Default Judgment Enforcement
Source Language
English
Civil Procedure Contract Law Product Liability Enforcement of Judgments Warranties Setting Aside Default Judgment Rule 19.08(1) Mountain View Factors +3 more

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Parties

Thomas McIlwain

Plaintiff (respondent)

Len’s Cove Marina Ltd.

Defendant (appellant)

Procedural Posture

Civil Appeal / Appeal From Order Refusing to Set Aside Default Judgment Under Rule 19.08(1)

Legal Issues

  1. 1 Whether the default judgment should be set aside
  2. 2 Whether the defendant provided a plausible explanation for default
  3. 3 Whether the defendant demonstrated an arguable defence (air of reality)

Ratio Decidendi

The motion judge erred by making factual findings and weighing Mountain View factors rigidly; the appellant produced a plausible explanation for the default (belief that NauticStar was addressing the issue under warranty) and an arguable defence as to the nature of the defects and warranty coverage (satisfying the 'air of reality' test), and the interests of justice required setting aside the default judgment to allow the action to be decided on the merits.

Court Disposition

Appeal allowed; default judgment and noting in default set aside

Orders

  • Default judgment and any execution thereon are set aside
  • Noting in default is set aside