The Toronto Dominion Bank v. Nawab

The Toronto Dominion Bank v. Nawab

Although the default judgment was signed before the 20-day service period had elapsed, the court exercised its power under Rule 2.01 and declined to set the judgment aside because the appellant was not prejudiced by the irregularity; additionally the appellant had no defence on the merits because she undisputedly received $600,000 from the property sale; accordingly the appeal was dismissed.

Citation
2014 ONCA 152
Parties
Plaintiff (respondent): The Toronto Dominion Bank; Defendant (appellant): Najeeb Ali Nawab; Defendant (appellant): Rhonda Chapman a.k.a. Rhonda Joyce Brioux
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
3 March 2014
Procedural Posture
Civil / Appeal to Court of Appeal From Superior Court of Justice Order Dated August 26, 2013
Outcome
Appeal dismissed
Legal Topics
Default Judgment, Setting Aside Judgment, Service of Process, Procedural Irregularity, Relief Against Irregularities (rule 2.01), Defence on the Merits, Costs
Source Language
English
Civil Procedure Debt Collection Property Law Default Judgment Setting Aside Judgment Service of Process Procedural Irregularity Relief Against Irregularities (rule 2.01) +2 more

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Parties

The Toronto Dominion Bank

Plaintiff (respondent)

Najeeb Ali Nawab

Defendant (appellant)

Rhonda Chapman a.k.a. Rhonda Joyce Brioux

Defendant (appellant)

Procedural Posture

Civil / Appeal to Court of Appeal From Superior Court of Justice Order Dated August 26, 2013

Legal Issues

  1. 1 Whether a default judgment signed before the 20-day service period elapsed must be set aside as of right
  2. 2 Whether the appellant has a defence on the merits to the bank's claim given receipt of sale proceeds
  3. 3 Whether the court should exercise its power under Rule 2.01 to relieve against procedural irregularity

Ratio Decidendi

Although the default judgment was signed before the 20-day service period had elapsed, the court exercised its power under Rule 2.01 and declined to set the judgment aside because the appellant was not prejudiced by the irregularity; additionally the appellant had no defence on the merits because she undisputedly received $600,000 from the property sale; accordingly the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs fixed at $3,500, all inclusive