Gerald Tobias Matlofsky

The defendants brought a motion to set aside a previous summary judgment order, arguing they were unaware of the court date, had repeatedly requested a French-speaking lawyer, and were not properly served.

They also claimed an arguable defence regarding improvident property sales and excessive expenses.

The court dismissed the motion, finding no evidence of accident, mistake, or insufficient notice, and noted the defendants' significant delays and failure to file responding materials.

The court also found no merit to the alleged defences, including the unpleaded claim of improvident sale, and considered the prejudice to the plaintiffs.

The defendant Royal Bank of Canada moved for summary judgment to dismiss a claim by the plaintiff Foodinvest Limited.

Foodinvest sought to recover wire payments made to fraudulent Polish accounts for meat products that were never delivered.

Foodinvest alleged the Bank was negligent in not warning of the fraud or investigating the accounts.

The Bank argued its liability was limited by contract to negligence, and no negligence occurred, nor was there a duty to investigate foreign accounts or warn the customer, especially given FINTRAC obligations to not 'tip off' suspicious clients.

The court found the Master Client Agreement binding, that the Bank had no duty to warn or investigate external fraud, and that the plaintiff failed to provide expert evidence of a breach of banking standard of care.

The motion for summary judgment was granted, and the action dismissed with costs to the defendant.

The defendant moved to set aside a default judgment for $117,383.19, which also declared a property transfer void under the Fraudulent Conveyances Act.

The court applied the five-factor test for setting aside default judgments.

While the defendant's promptness in bringing the motion and explanation for default were found to be weak, the court determined that the defendant presented an arguable defence with an "air of reality" regarding the conspiracy and fraudulent conveyance claims.

Specifically, the court noted the difficulty in establishing joint and several liability for the underlying debt based solely on a fraudulent conveyance and the non-monetary nature of remedies under the Fraudulent Conveyances Act.

The motion was granted on terms, including a restriction on dealing with a specific property and an order for costs thrown away.

The defendants brought a motion under rr. 19.08(2) and (3) of the Rules of Civil Procedure to set aside a default judgment and the underlying noting in default.

The court found that the default proceedings were irregularly obtained because the requisition for noting in default was filed before the expiry of the time to deliver a defence and while the defendant had already served a notice of intention to defend and a motion to strike the statement of claim.

The court also noted that the defendant moved promptly to set aside the default once he learned of it and had not been warned of the default proceedings.

Applying the principles governing irregularly obtained judgments, the court held that the defendants were entitled to have the default judgment and noting in default set aside without demonstrating a defence on the merits.