CIBC Mortgages Inc. v. Kwaw

CIBC Mortgages Inc. v. Kwaw

The motion judge (and Court of Appeal) refused to set aside the default judgment because, although the first two branches of the test may have been met, the appellant failed to demonstrate any arguable defence on the merits to the bank's fraud or negligence claims; accordingly the interests of justice required dismissal of the motion and the appeal.

Citation
2012 ONCA 602
Parties
Plaintiff (respondent): CIBC Mortgages Inc.; Defendant (appellant): Edmund Manna-Atta Kwaw
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
12 September 2012
Procedural Posture
Collection / Appeal From Motion to Set Aside Default Judgment
Outcome
Appeal dismissed.
Legal Topics
Default Judgment, Set Aside, Fraud, Negligence, Motion to Set Aside
Source Language
English
Civil Collection Fraud Tort (negligence) Default Judgment Set Aside Negligence Motion to Set Aside

Case Brief

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Parties

CIBC Mortgages Inc.

Plaintiff (respondent)

Edmund Manna-Atta Kwaw

Defendant (appellant)

Procedural Posture

Collection / Appeal From Motion to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the motion judge applied the correct test for setting aside a default judgment
  2. 2 Whether the appellant established absence of delay and provided an adequate explanation for the default
  3. 3 Whether the appellant established an arguable defence on the merits to the bank's fraud and negligence claims

Ratio Decidendi

The motion judge (and Court of Appeal) refused to set aside the default judgment because, although the first two branches of the test may have been met, the appellant failed to demonstrate any arguable defence on the merits to the bank's fraud or negligence claims; accordingly the interests of justice required dismissal of the motion and the appeal.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.
  • Respondent entitled to costs of the appeal fixed in the amount of $2,000 inclusive of disbursements and all applicable taxes.