Default Judgment is Not Equal to Summary Judgment No authority to the contrary was put forward by the plaintiff. This finding, the ONCA concluded was open for the motions judge to make. This suggestion was accepted by the motions judge after a careful review of the evidence. The facts suggested that the defendant, although served with a motion for default judgment, did nothing thereafter on the basis that they did not understand the documents or that they were to respond or appear in court. The Explanation for Default Rests on the Facts ![]() That the motions judge had erred in concluding that there was an arguable defence on the merits.That the motions judge erred in concluding that the defendant had sufficiently explained their failure to act after receiving the notice of the motion for default judgment, and. ![]() The factors of debate in the decision at hand dealt with the two errors suggested by the appellant as follows: This can mean that one factor alone can be used to set aside the default judgment which weighs heavily in favour of the defendant, even where other factors are not satisfied. Rather, they must be considered in light of the particular circumstances of each case. The enumerated factors or tests are not rigid rules that must be followed slavishly. the effect of any order the court might make on the overall integrity of the administration of justice.the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed and.whether the facts establish that the defendant has an arguable defence on the merits.whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules.whether the motion was brought promptly after the defendant learned of the default judgment.McQueen, sets out five major factors to consider when deciding on a motion to set aside a default judgment: ![]() The 2014 decision of the Ontario Court of Appeal (ONCA) in Mountain View Farms Ltd. Five Factors to Consider in a Motion to Set Aside a Default Judgment The ONCA’s decision (discussed below) demonstrates the appropriate treatment given to such matters by judges in Ontario. The plaintiff appealed, asking the Ontario Court of Appeal (ONCA) to reinstate the default judgment. The defendant then successfully brought a motion to set the judgment aside. The plaintiff in the case had been successful in obtaining default judgment against the defendant. A recent case provides a good illustration of the treatment such motions often receive in Ontario courtrooms. Once granted, the defendant must seek to set aside the judgment before the appropriate motions judge. Setting aside a default judgment is a discretionary remedy based on facts and circumstances. Can a Party Successfully Have it Set Aside? ![]() A defendant who fails to file an answer or other legal response when it is due can request that the default be set aside, but must show a legitimate excuse and a good defense to the lawsuit.A default judgment is often granted in favour of a plaintiff when the defendant, although served, either fails to appear in court or respond to a claim within the predetermined time limit. In either case the defendant cannot speak for himself/herself. If proof of damages or other relief is necessary, a hearing will be held in which the judge determines terms of the default judgment. If the complaint was for a specific amount of money owed on a note, other money due, or a specific contract price (or if the amount due is easy to calculate) then the clerk of the court can enter a default judgment. if a defendant in a lawsuit fails to respond to a complaint in the time set by law (usually 30 days), then the plaintiff (suer) can request that the default (failure) be entered into the court record by the clerk, which gives the plaintiff the right to get a default judgment. West's Encyclopedia of American Law, edition 2.
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