Jack Sheldon Zwicker

The defendants brought a motion to set aside a noting in default after being served with a statement of claim seeking an interlocutory and permanent mandatory injunction to remove an iron gate that obstructed the plaintiffs' registered right of way.

The defendants did not defend the action and were noted in default.

The plaintiffs subsequently obtained an interlocutory injunction order and removed the gate.

The defendants then sought to set aside the noting in default.

The court applied the Franchetti factors and granted the motion, emphasizing the strong preference for resolving civil actions on their merits, the absence of prejudice to the plaintiffs, and the significant prejudice to the defendants if the default were not set aside.

The court noted that the plaintiffs' failure to advise the defendants of the noting in default or serve them with the motion record weighed in favour of setting aside the default.

The defendant brought a motion to set aside a default judgment and writ of possession obtained by the mortgagee after the defendant defaulted on a second mortgage secured against residential property.

The defendant argued she did not recall receiving the originating process due to mental health issues and advanced a proposed defence alleging a fiduciary relationship involving a bank that referred her to the mortgage broker.

The court held the defendant failed to provide a credible explanation for the default, noting evidence that she had been personally served and that her counsel was aware of the motion date but chose not to attend or send an agent.

The court further found that the proposed defence lacked an air of reality because the mortgage relationship between the parties remained a straightforward debtor‑creditor relationship.

The motion to set aside the default judgment was dismissed.