H. Keith Juriansz

The defendant brought a motion to set aside a default judgment arising from an equipment lease dispute after she claimed she first learned of the action when served with a notice of examination in aid of execution.

The court applied the test from HSBC Securities Canada Inc. v. Firestar Capital Management Corp., considering delay, explanation for default, and whether there was an arguable defence on the merits.

Although the motion was brought without unreasonable delay, the defendant failed to provide a plausible explanation for the default and did not rebut evidence of personal service.

The court also held that her proposed defence—that the lender should have ensured she obtained independent legal advice before signing as co-lessee and guarantor—was not arguable in the absence of undue influence, fraud, or misrepresentation.

The motion to set aside the default judgment was therefore dismissed.

Following the settlement of a motion seeking to determine and fix the owner’s statutory holdback under the Construction Lien Act, the court was required to determine the appropriate costs award.

The moving subcontractor argued that the owner delayed addressing the holdback issue, necessitating the motion and increasing litigation costs, and sought enhanced partial indemnity costs.

The responding party argued the motion was over-lawyered and that only minimal costs should be awarded.

The court held that the motion produced a successful result by compelling the owner to fund an interim holdback available for distribution to subcontractors, entitling the moving party to costs.

However, no exceptional circumstances justified enhanced costs, and a fair and proportionate partial indemnity award was fixed.