1067609 Ontario Inc. (Turner's Garage) v. Schell

1067609 Ontario Inc. (Turner's Garage) v. Schell

The motion judge did not err in law or in principle: the appellants failed to demonstrate a continuing intention to defend, their explanation for delay was vague and incredible, and they did not bring the motion expeditiously; accordingly the refusal to set aside the noting in default was a proper exercise of...

Source-derived case information.

Citation
2012 ONCA 310
Parties
Plaintiff (respondent): 1067609 Ontario Inc. o/a Turner's Garage; Defendant (appellant): Lyndel Schell; Defendant (appellant): BDO Canada Limited, Trustee in Bankruptcy for David Schell
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
11 May 2012
Procedural Posture
Civil Collection / Appeal From Motion Judge's Order Refusing to Set Aside Noting in Default (order Dated December 5, 2011)
Outcome
Appeal dismissed; motion judge's order refusing to set aside noting in default upheld.
Legal Topics
Setting Aside Noting in Default, Default Judgment, Extension of Time, Costs
Source Language
english
Civil Procedure Collections Appeal Setting Aside Noting in Default Default Judgment Extension of Time Costs

Source-derived case record

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Parties

1067609 Ontario Inc. o/a Turner's Garage

Plaintiff (respondent)

Lyndel Schell

Defendant (appellant)

BDO Canada Limited, Trustee in Bankruptcy for David Schell

Defendant (appellant)

Procedural Posture

Civil Collection / Appeal From Motion Judge's Order Refusing to Set Aside Noting in Default (order Dated December 5, 2011)

Legal Issues

  1. 1 Whether the noting in default should be set aside
  2. 2 Whether the appellants demonstrated a continuing intention to defend
  3. 3 Whether the appellants provided an acceptable explanation for delay

Ratio Decidendi

The motion judge did not err in law or in principle: the appellants failed to demonstrate a continuing intention to defend, their explanation for delay was vague and incredible, and they did not bring the motion expeditiously; accordingly the refusal to set aside the noting in default was a proper exercise of discretion and the appeal is dismissed.

Court Disposition

Appeal dismissed; motion judge's order refusing to set aside noting in default upheld.

Orders

  • Dismissal of the appeal.
  • Costs of the appeal to the respondent fixed at $8,000 inclusive of disbursements and applicable taxes.