Fatma Uyuklu

The defendant brought a motion to set aside a default judgment relating to a collateral mortgage registered against her properties.

She argued that she was not properly served with the statement of claim under Rule 16.03(5) because she no longer resided at the address where service was attempted, and alternatively, that she met the test for setting aside a default judgment.

The court found that service was non-compliant, entitling the defendant to have the judgment set aside as of right.

The court further held that the defendant met the test for setting aside the judgment, noting her prompt action upon discovery, plausible explanation for default, and arguable defence of fraud and lack of consent due to language and vision impairments.

The appellants appealed a trial judgment finding they unjustifiably terminated and repudiated a residential renovation contract.

The trial judge awarded the respondent contractor $105,804.92 plus costs.

On appeal, the appellants challenged the trial judge's exclusion of their proposed expert, interpretation of the contract, factual findings on completion percentage, and credibility assessments.

The Divisional Court dismissed the appeal, finding no errors of law or palpable and overriding errors in the trial judge's factual findings.

Leave to appeal the costs award was also denied.

The defendants brought a motion to set aside a default judgment.

The court dismissed the motion regarding the corporate defendant, finding no plausible excuse for the default and no arguable defence to the unpaid invoices.

However, the court granted the motion regarding the individual defendant, finding an arguable defence as to whether he provided an enforceable personal guarantee under the Statute of Frauds.

The appellants sought an order under s. 110 of the Courts of Justice Act to transfer their appeal from the Court of Appeal for Ontario to the Divisional Court and to extend the time for serving and filing a notice of appeal.

The appeal arose from a construction contract dispute where the respondent contractor brought a lien action under the Construction Act after the appellants refused to pay the final invoice.

The trial judge awarded damages in favour of the respondent.

The appellants' counsel had filed the notice of appeal in the wrong court.

The motion judge found that the appellants satisfied the three criteria for transfer: arguable grounds of appeal, manageable prejudice to the respondent, and expeditious action once the jurisdictional error was discovered.

The appeal was transferred to the Divisional Court with an extended deadline for filing the notice of appeal.

The defendants brought a motion to strike the plaintiff's amended statement of claim, which sought damages for trespass, nuisance, intentional infliction of mental suffering, and harassment arising from a neighbour dispute.

The court struck the novel claim for harassment without leave to amend, finding no realistic prospect that such a tort would be recognized in this context.

The court also struck a claim for damages related to a hypothetical future move as frivolous.

However, the court declined to strike the entirety of the claims for trespass, nuisance, and intentional infliction of mental suffering, finding it was not plain and obvious that they would fail, particularly given the suspension of limitation periods during the COVID-19 pandemic.

The motion was granted in part.