1057150 Ontario Limited v. Abraham
The appeal was dismissed because, although the reason for default was satisfactorily explained and there was no delay, there was no realistic or valid defence on the merits and the balance of prejudice favored the respondent, so the default judgment should not be set aside.
Source-derived case information.
- Citation
- 2008 ONCA 251
- Parties
- Plaintiff (respondent): 1057150 Ontario Limited; Defendant (appellant): Eugene Edward Abraham (also known as Ted Abraham); Defendant (appellant): 1353025 Ontario Inc.; Defendant (appellant): 1499478 Ontario Inc.; Defendant (appellant): 889554 Ontario Inc. (c.o.b. MINK CREEK DEVELOPMENTS); Defendant (appellant): 1232235 Ontario Limited; Defendant (appellant): 1663859 Ontario Inc.; Defendant (appellant): 1662704 Ontario Inc.; Defendant (appellant): 1277808 Ontario Limited; Defendant (appellant): Venture Mortgage and Loans Inc.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 8 April 2008
- Procedural Posture
- Civil Collection / Appeal From Order Dismissing Motion to Set Aside Default Judgment
- Outcome
- Appeal dismissed
- Legal Topics
- Set Aside Default Judgment, Promissory Note, Realistic Defence, Balance of Prejudice, Delay
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
1057150 Ontario Limited
Plaintiff (respondent)
Eugene Edward Abraham (also known as Ted Abraham)
Defendant (appellant)
1353025 Ontario Inc.
Defendant (appellant)
1499478 Ontario Inc.
Defendant (appellant)
889554 Ontario Inc. (c.o.b. MINK CREEK DEVELOPMENTS)
Defendant (appellant)
1232235 Ontario Limited
Defendant (appellant)
1663859 Ontario Inc.
Defendant (appellant)
1662704 Ontario Inc.
Defendant (appellant)
1277808 Ontario Limited
Defendant (appellant)
Venture Mortgage and Loans Inc.
Defendant (appellant)
Procedural Posture
Civil Collection / Appeal From Order Dismissing Motion to Set Aside Default Judgment
Legal Issues
- 1 Whether there was a realistic or valid defence to the promissory note
- 2 Whether the appellants satisfactorily explained the default
- 3 Whether there was delay in moving to set aside the default judgment
Ratio Decidendi
The appeal was dismissed because, although the reason for default was satisfactorily explained and there was no delay, there was no realistic or valid defence on the merits and the balance of prejudice favored the respondent, so the default judgment should not be set aside.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to respondent of $5,000 inclusive of disbursements and GST
Full Case Text
Judgment text and source record
1 paragraphs
1057150 Ontario Limited v. Abraham Collection Decisions of the Court of Appeal Date 2008-04-08 Neutral citation 2008 ONCA 251 Docket numbers C47669 Judges Feldman, Kathryn N.; Blair, Robert Ashley; Rouleau, Paul S. Subject Civil Decision Content CITATION: 1057150 Ontario Limited v. Abraham, 2008 ONCA 251 DATE: 20080407 DOCKET: C47669 COURT OF APPEAL FOR ONTARIO FELDMAN, BLAIR and ROULEAU JJ.A. BETWEEN: 1057150 ONTARIO LIMITED Plaintiff (Respondent) and EUGENE EDWARD ABRAHAM (also known as TED ABRAHAM), 1353025 ONTARIO INC., 1499478 ONTARIO INC., 889554 ONTARIO INC. (c.o.b. MINK CREEK DEVELOPMENTS), 1232235 ONTARIO LIMITED, 1663859 ONTARIO INC., 1662704 ONTARIO INC., 1277808 ONTARIO LIMITED and VENTURE MORTGAGE AND LOANS INC. Defendants (Appellants) Ian McLean for the appellant Todd Lever for the respondent Heard and endorsed: April 4, 2008 On appeal from the order of Justice Norman Karam of the Superior Court of Justice dated August 17, 2007. APPEAL BOOK ENDORSEMENT [1] Karam J. dismissed the motion to set aside the default judgment on the promissory note on the basis that there is no realistic or valid defence on the merits. He was satisfied that the reason for the default in filing a defence was satisfactorily explained and that there was no delay in moving to set aside the default judgment. We agree with Karam J. on all three points. [2] We have also considered the balance of prejudice. As there is no valid defence and no monthly payments were made including on post-dated cheques tendered by the appellant before the default judgment, we are satisfied that the balance of prejudice clearly favours the respondent. Mr. Abraham was given ample opportunity by Karam J. to put forward evidence of a defence including an adjournment and no valid defence was put forward. Now, a year after the default, there is no evidence of any payment having been made. [3] The appeal is therefore dismissed with costs to the respondent of $5,000 inclusive of disbursements and GST.