Christopher Moore

The defendant brought a motion to set aside a noting of default in a slip and fall action.

The plaintiff had commenced the action beyond the two-year limitation period and noted the defendant in default after the defendant's insurer closed its file due to a miscommunication.

The court applied the test for setting aside a noting of default, considering the behaviour of the parties, the reasons for delay, the complexity of the claim, and prejudice.

The court found that the defendant had a continuing intention to defend, the delay was adequately explained, and the defendant would suffer clear prejudice if not allowed to defend.

The motion was granted, and the noting of default was set aside with no order as to costs.