Baptista v. Safranko

Baptista v. Safranko

The motion judge did not err in concluding there was no air of reality to the appellant's defence given the mortgage broker's evidence, the appellant's own written communications acknowledging indebtedness and payment patterns consistent with a loan; accordingly the discretionary decision to refuse to set aside the default judgment was entitled to deference and the appeal was dismissed.

Citation
2016 ONCA 114
Parties
Plaintiff/respondent: Maria Baptista; Defendant/appellant: Ted Safranko; Defendant/appellant: Ana Baptista
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
9 February 2016
Procedural Posture
Civil / Appeal From Motion to Set Aside Default Judgment
Outcome
Appeal dismissed; motion judge's order refusing to set aside default judgment upheld
Legal Topics
Default Judgment, Setting Aside Default Judgment, Air of Reality Test, Mortgage, Loan Versus Gift, Evidence
Source Language
English
Civil Property Contract Procedural Law Equity Default Judgment Setting Aside Default Judgment Air of Reality Test +3 more

Case Brief

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Parties

Maria Baptista

Plaintiff/respondent

Ted Safranko

Defendant/appellant

Ana Baptista

Defendant/appellant

Procedural Posture

Civil / Appeal From Motion to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the motion judge erred in refusing to set aside the default judgment against the appellant
  2. 2 Whether the appellant had an arguable defence that met the air of reality test
  3. 3 What standard of deference applies to a motion judge's discretionary decision to refuse to set aside a default judgment

Ratio Decidendi

The motion judge did not err in concluding there was no air of reality to the appellant's defence given the mortgage broker's evidence, the appellant's own written communications acknowledging indebtedness and payment patterns consistent with a loan; accordingly the discretionary decision to refuse to set aside the default judgment was entitled to deference and the appeal was dismissed.

Court Disposition

Appeal dismissed; motion judge's order refusing to set aside default judgment upheld

Orders

  • Appeal dismissed.
  • Default judgment remains in place.