FS Partnership/UPI Energy FS v. Mr. Refuel Inc.

FS Partnership/UPI Energy FS v. Mr. Refuel Inc.

The Court of Appeal held the motion judge did not act unreasonably in refusing to vary the settled order because the narrow authority to change an unsigned order applies only to correct technical errors or to avoid miscarriage of justice, no miscarriage was shown, the proposed fresh evidence failed the Palmer criteria and would not have altered the motion judge's conclusion; accordingly the appeal was dismissed and costs awarded to the respondent.

Citation
2022 ONCA 612
Parties
Plaintiff/respondent: FS Partnership/UPI Energy FS, a Division of Growmark Inc.; Defendant/appellant: Mr. Refuel Inc.; Defendant/appellant: Roy Nirwal; Defendant/appellant: Amandeep Kaur
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
26 August 2022
Procedural Posture
Civil Collection / Appeal / Appeal From Motion to Set Aside Default Judgment and Settlement of Order (court of Appeal Decision)
Outcome
Appeal dismissed
Legal Topics
Default Judgment, Setting Aside Default, Costs Orders, Settlement of Order, Fresh Evidence, Exercise of Judicial Discretion, Miscarriage of Justice
Source Language
English
Civil Procedure Contract Law Collections Appeals Default Judgment Setting Aside Default Costs Orders Settlement of Order +3 more

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Parties

FS Partnership/UPI Energy FS, a Division of Growmark Inc.

Plaintiff/respondent

Mr. Refuel Inc.

Defendant/appellant

Roy Nirwal

Defendant/appellant

Amandeep Kaur

Defendant/appellant

Procedural Posture

Civil Collection / Appeal / Appeal From Motion to Set Aside Default Judgment and Settlement of Order (court of Appeal Decision)

Legal Issues

  1. 1 Whether the motion judge unreasonably refused to vary the order to extend time for payment of costs thereby effectively keeping the default judgment against the appellant
  2. 2 Whether proposed fresh evidence should be admitted on appeal
  3. 3 Whether the appeal was statute-barred

Ratio Decidendi

The Court of Appeal held the motion judge did not act unreasonably in refusing to vary the settled order because the narrow authority to change an unsigned order applies only to correct technical errors or to avoid miscarriage of justice, no miscarriage was shown, the proposed fresh evidence failed the Palmer criteria and would not have altered the motion judge's conclusion; accordingly the appeal was dismissed and costs awarded to the respondent.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed.
  • Motion to introduce fresh evidence dismissed.