Forest City Linen Supply Limited v. Wales

Forest City Linen Supply Limited v. Wales

The majority held that where the appellant promptly attempted to deliver his defence upon learning of the motion, the merits of the defence are virtually uncontradicted and the respondent has not demonstrated prejudice, a nine month delay is not sufficient to deny the appellant the opportunity to defend; the appeal must be allowed and the judgment set aside subject to conditions.

Citation
C26201
Parties
Plaintiff / Respondent: Forest City Linen Supply Limited; Defendant / Appellant: William Wales
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
21 September 1998
Procedural Posture
Civil Appeal / Appeal From Motions Judge Decision on Motion to Set Aside Judgment
Outcome
Appeal allowed; judgment set aside (divided court)
Legal Topics
Setting Aside Default Judgment, Delay and Explanation, Prejudice, Discretion of Court, Costs Orders, Writ of Execution
Source Language
English
Civil Procedure Appeals Enforcement Setting Aside Default Judgment Delay and Explanation Prejudice Discretion of Court Costs Orders +1 more

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Parties

Forest City Linen Supply Limited

Plaintiff / Respondent

William Wales

Defendant / Appellant

Procedural Posture

Civil Appeal / Appeal From Motions Judge Decision on Motion to Set Aside Judgment

Legal Issues

  1. 1 Whether a nine month delay in moving to set aside a judgment justified refusal to allow a defence
  2. 2 Whether the respondent suffered prejudice from the delay
  3. 3 Whether the motions judge properly exercised discretion in requiring an explanation for delay

Ratio Decidendi

The majority held that where the appellant promptly attempted to deliver his defence upon learning of the motion, the merits of the defence are virtually uncontradicted and the respondent has not demonstrated prejudice, a nine month delay is not sufficient to deny the appellant the opportunity to defend; the appeal must be allowed and the judgment set aside subject to conditions.

Court Disposition

Appeal allowed; judgment set aside (divided court)

Orders

  • The writ of execution remains in place
  • The defence must be filed within ten days