Zeifman Partners Inc. v. Aiello

Zeifman Partners Inc. v. Aiello

The motion judge erred in law and fact by misapplying the Mountain View factors (improperly treating historical conduct under promptness and excuse factors, applying an overly stringent summary judgment style test to 'air of reality', and making palpable and overriding factual findings on contested issues such as timing and cause of mould). Given prompt motion, plausible explanation that default arose from counsel removal (LawPro) and residence abroad, and existence of an arguable defence on quantum and causation, the Court of Appeal allowed the appeal and set aside the default judgment, noting relief from default was just and consistent with the objective of resolving disputes on their...

Citation
2020 ONCA 33
Parties
Plaintiff (respondent): Zeifman Partners Inc., in its capacity as receiver of the property known municipally as 40 Park Lane Circle; Defendant (appellant): David Aiello
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
21 January 2020
Procedural Posture
Civil Appeal From Motion to Set Aside Default Judgment / Appeal (court of Appeal Decision)
Outcome
Appeal allowed; order below, default judgment and noting in default set aside; statement of defence restored; parties directed to obtain new trial date; appellant awarded costs of the appeal in the amount of $10,000 inclusive; no costs awarded for the underlying motion.
Legal Topics
Setting Aside Default Judgment, Default Judgment, Breach of Contract, Damages, Remedies, Procedural Fairness, Administration of Justice
Source Language
English
Civil Procedure Contract Real Property Receivership Equity Setting Aside Default Judgment Default Judgment Breach of Contract +4 more

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Parties

Zeifman Partners Inc., in its capacity as receiver of the property known municipally as 40 Park Lane Circle

Plaintiff (respondent)

David Aiello

Defendant (appellant)

Procedural Posture

Civil Appeal From Motion to Set Aside Default Judgment / Appeal (court of Appeal Decision)

Legal Issues

  1. 1 Whether the default judgment and noting in default should be set aside
  2. 2 Whether the defendant had a plausible excuse for the default that led to the default judgment
  3. 3 Whether the defendant has an arguable defence on the merits (an 'air of reality')

Ratio Decidendi

The motion judge erred in law and fact by misapplying the Mountain View factors (improperly treating historical conduct under promptness and excuse factors, applying an overly stringent summary judgment style test to 'air of reality', and making palpable and overriding factual findings on contested issues such as timing and cause of mould). Given prompt motion, plausible explanation that default arose from counsel removal (LawPro) and residence abroad, and existence of an arguable defence on quantum and causation, the Court of Appeal allowed the appeal and set aside the default judgment, noting relief from default was just and consistent with the objective of resolving disputes on their...

Court Disposition

Appeal allowed; order below, default judgment and noting in default set aside; statement of defence restored; parties directed to obtain new trial date; appellant awarded costs of the appeal in the amount of $10,000 inclusive; no costs awarded for the underlying motion.

Orders

  • Set aside the order below dated March 15, 2019
  • Set aside the default judgment dated December 14, 2018