STRIKING OUT A NOTING IN DEFAULT
The lesson learned in this appellate court decision is that no defendant should take it for granted that a noting in default will be set aside, especially if the decision not to defend was a deliberate strategic decision, and they continue with that strategy for a long period of time.
In this instance, the appellate court refused to set aside a noting in default, which gave the Plaintiff clearance to proceed to trial in a few months time to prove their damages, uncontested. The prevailing reasons for this was:
- the defendant deliberately and strategically chose not to defend. It was apparently on the “advice” of a lawyer, who purportedly told the defendant that since they didn’t have insurance, no one would start a lawsuit, or see a lawsuit through to judgment;
- the defendant only brought the motion after the trial was set, and ready to proceed later in the year; and
- there was a strong concern over prejudice to the defendant who would now have to dredge up evidence on what occurred at the defendant’s establishment over a decade ago.
Franchetti v. Huggins, 2022 ONCA 111
https://www.canlii.org/en/on/onca/doc/2022/2022onca111/2022onca111.html