Morgan v. Municipality of Toronto Police Services Board

Morgan v. Municipality of Toronto Police Services Board

Although the defendant was not under a disability at the time of noting in default for purposes of Rule 7.07, the medical evidence provided a reasonable explanation for his failure to defend; the motion to set aside under Rule 19.08(2) was brought without undue delay, a triable defence was disclosed, and in the interests of justice the Court of Appeal set aside the noting in default and the default judgment and allowed the defendant time to file a defence.

Citation
C37424
Parties
Plaintiff/respondent: Alton Earl Morgan; Defendant/appellant: Municipality of Toronto Police Services Board; Defendant/appellant: Detective Vincent Pandolfi (Badge No. 3675); Defendant/appellant: P.C. Childon (Badge No. 6601); Defendant/appellant: David Rydygier
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
2 April 2003
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Motion to Set Aside Default Judgment
Outcome
Appeal allowed (majority). The noting of pleadings in default and the default judgment dated September 5, 2000 were set aside; defendant given time to file a defence; no order as to costs.
Legal Topics
Setting Aside Default Judgment, Rule 19.08(2), Rule 7.07, Substitute Decisions Act S.6 (capacity), Triable Defence, Assessment of Damages, Punitive Damages
Source Language
English
Civil Procedure Tort Law Mental Capacity Law Setting Aside Default Judgment Rule 19.08(2) Rule 7.07 Substitute Decisions Act S.6 (capacity) Triable Defence +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 7 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Alton Earl Morgan

Plaintiff/respondent

Municipality of Toronto Police Services Board

Defendant/appellant

Detective Vincent Pandolfi (Badge No. 3675)

Defendant/appellant

P.C. Childon (Badge No. 6601)

Defendant/appellant

David Rydygier

Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Motion to Set Aside Default Judgment

Legal Issues

  1. 1 Whether a party is 'under disability' for the purposes of rule 7.07 at the time of noting in default or at service
  2. 2 Whether the default judgment should be set aside under rule 19.08(2)
  3. 3 Whether the defendant's psychiatric condition provided a reasonable explanation for the default

Ratio Decidendi

Although the defendant was not under a disability at the time of noting in default for purposes of Rule 7.07, the medical evidence provided a reasonable explanation for his failure to defend; the motion to set aside under Rule 19.08(2) was brought without undue delay, a triable defence was disclosed, and in the interests of justice the Court of Appeal set aside the noting in default and the default judgment and allowed the defendant time to file a defence.

Court Disposition

Appeal allowed (majority). The noting of pleadings in default and the default judgment dated September 5, 2000 were set aside; defendant given time to file a defence; no order as to costs.

Orders

  • Noting of pleadings in default set aside
  • Judgment of Macdonald J. dated September 5, 2000 set aside