Schill & Beninger Plumbing & Heating Ltd. v. Rozon

Schill & Beninger Plumbing & Heating Ltd. v. Rozon

The default judgment signed by the Registrar under r.19.04 was set aside because the claim was not a liquidated demand that could be properly determined administratively by the Registrar; adjudication by a judge under r.19.05 was required to determine the amount. The amendment to correct the plaintiff's name was permissible, the attempt to reopen pleadings was denied due to intentional default, and the Court of Appeal declined to disturb the trial judge's order on costs against the litigation administrator.

Citation
C34542
Parties
Plaintiff (respondent): Schill & Beninger Plumbing & Heating Ltd.; Defendant (appellant): Amanda Kelly Rozon, Executrix of the Estate of Rosalind Gallagher and of the Estate of George Gallagher; Defendant (appellant): Canadian Imperial Bank of Commerce; Defendant (appellant): The Toronto-Dominion Bank
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
31 January 2001
Procedural Posture
Civil / Appeal From Motion Decision Dated May 19, 2000 Permitting Amendment of Judgment and Refusing to Set Aside Default Judgment; Hearing Before Court of Appeal Jan 12, 2001
Outcome
Default judgment entered by the Registrar under r.19.04 set aside for jurisdictional defect; plaintiff granted leave to proceed before a judge under r.19.05; amendment to correct corporate name permitted; noting of pleadings closed not set aside; trial judge's costs order against the litigation administrator not...
Legal Topics
Default Judgment, Liquidated Demand, Jurisdiction of Registrar, Rule 19.04, Rule 19.05, Setting Aside Judgment, Misnomer/amendment of Judgment, Costs, Pleadings Closed, Conversion, Fraud, Inter Jurisdictional Enforcement
Source Language
English
Civil Procedure Torts Estates Banking and Finance Default Judgment Liquidated Demand Jurisdiction of Registrar Rule 19.04 +8 more

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Parties

Schill & Beninger Plumbing & Heating Ltd.

Plaintiff (respondent)

Amanda Kelly Rozon, Executrix of the Estate of Rosalind Gallagher and of the Estate of George Gallagher

Defendant (appellant)

Canadian Imperial Bank of Commerce

Defendant (appellant)

The Toronto-Dominion Bank

Defendant (appellant)

Procedural Posture

Civil / Appeal From Motion Decision Dated May 19, 2000 Permitting Amendment of Judgment and Refusing to Set Aside Default Judgment; Hearing Before Court of Appeal Jan 12, 2001

Legal Issues

  1. 1 Whether the Registrar had jurisdiction under r.19.04 to sign a default judgment based on the statement of claim
  2. 2 Whether the claim was a liquidated demand within the meaning of r.19.04
  3. 3 Whether the default judgment should be set aside and pleadings reopened given intentional default by the litigation administrator

Ratio Decidendi

The default judgment signed by the Registrar under r.19.04 was set aside because the claim was not a liquidated demand that could be properly determined administratively by the Registrar; adjudication by a judge under r.19.05 was required to determine the amount. The amendment to correct the plaintiff's name was permissible, the attempt to reopen pleadings was denied due to intentional default, and the Court of Appeal declined to disturb the trial judge's order on costs against the litigation administrator.

Court Disposition

Default judgment entered by the Registrar under r.19.04 set aside for jurisdictional defect; plaintiff granted leave to proceed before a judge under r.19.05; amendment to correct corporate name permitted; noting of pleadings closed not set aside; trial judge's costs order against the litigation administrator not...

Orders

  • Default judgment signed by the Registrar on January 9, 1998 set aside.
  • Plaintiff granted leave to proceed before a judge under r.19.05.