1565703 Ontario Limited v. St. Clair Tavern (Sarnia) Limited

1565703 Ontario Limited v. St. Clair Tavern (Sarnia) Limited

The default judgment was set aside because the respondent did not properly prove it and, in the interests of justice, the appellant must be permitted to contest the quantum and pursue a counterclaim; the Court retained the writ on title to protect the respondent and varied the costs award to $8,336.13 while allowing costs thrown away for obtaining the default judgment; there shall be no costs of the appeal.

Citation
2011 ONCA 523
Parties
Plaintiff (respondent): 1565703 Ontario Limited; Defendant (appellant): St. Clair Tavern (Sarnia) Limited
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
19 July 2011
Procedural Posture
Civil / Appeal From Superior Court Motion Judgment
Outcome
Appeal allowed; default judgment set aside
Legal Topics
Default Judgment, Setting Aside Default, Costs, Writ of Execution, Counterclaim, Quantum
Source Language
English
Civil Procedure Enforcement Judgments Costs Default Judgment Setting Aside Default Writ of Execution Counterclaim +1 more

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Parties

1565703 Ontario Limited

Plaintiff (respondent)

St. Clair Tavern (Sarnia) Limited

Defendant (appellant)

Procedural Posture

Civil / Appeal From Superior Court Motion Judgment

Legal Issues

  1. 1 Whether the respondent properly proved its default judgment
  2. 2 Whether the Court of Appeal should set aside a default judgment on grounds not raised before the motion judge in the interests of justice
  3. 3 Whether a writ of execution filed in respect of the default judgment should remain on title

Ratio Decidendi

The default judgment was set aside because the respondent did not properly prove it and, in the interests of justice, the appellant must be permitted to contest the quantum and pursue a counterclaim; the Court retained the writ on title to protect the respondent and varied the costs award to $8,336.13 while allowing costs thrown away for obtaining the default judgment; there shall be no costs of the appeal.

Court Disposition

Appeal allowed; default judgment set aside

Orders

  • Appellant to deliver its statement of defence and any counterclaim within 10 days of the entry of this order
  • Any writ of execution filed in respect of the default judgment shall remain on title