Cooksville Steel Limited v. Schmidt

Cooksville Steel Limited v. Schmidt

The motions judge erred by resolving a contested issue of credibility on the motion materials; because a genuine issue existed as to whether the cheque constituted accord and satisfaction, the default judgment had to be set aside and the defendant allowed to deliver a statement of defence.

Citation
C26131
Parties
Plaintiff/respondent: Cooksville Steel Limited; Defendant/appellant: Walter Schmidt (a.k.a. Waldemar Schmidt) c.o.b. Schmidt Investments
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
11 September 1998
Procedural Posture
Civil / Appeal to Court of Appeal From Motions Judge Regarding Setting Aside Default Judgment
Outcome
Appeal allowed; order under appeal set aside; default judgment set aside; appellant permitted to deliver a statement of defence by September 29, 1998.
Legal Topics
Default Judgment, Setting Aside, Accord and Satisfaction, Credibility, Costs
Source Language
English
Civil Civil Procedure Contract Law Appeal Default Judgment Setting Aside Accord and Satisfaction Credibility +1 more

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Parties

Cooksville Steel Limited

Plaintiff/respondent

Walter Schmidt (a.k.a. Waldemar Schmidt) c.o.b. Schmidt Investments

Defendant/appellant

Procedural Posture

Civil / Appeal to Court of Appeal From Motions Judge Regarding Setting Aside Default Judgment

Legal Issues

  1. 1 Whether a cheque dated September 20, 1991 for $22,000 constituted accord and satisfaction in full
  2. 2 Whether the motions judge could resolve a credibility dispute on the motion materials
  3. 3 Whether the default judgment should be set aside

Ratio Decidendi

The motions judge erred by resolving a contested issue of credibility on the motion materials; because a genuine issue existed as to whether the cheque constituted accord and satisfaction, the default judgment had to be set aside and the defendant allowed to deliver a statement of defence.

Court Disposition

Appeal allowed; order under appeal set aside; default judgment set aside; appellant permitted to deliver a statement of defence by September 29, 1998.

Orders

  • Set aside the order under appeal and the default judgment against the appellant.
  • Permit the appellant to deliver a statement of defence by not later than September 29, 1998.