The defendants brought a motion under Rule 37.14(1)(b) and Rule 59.06 of the Rules of Civil Procedure to set aside a summary judgment obtained against them for possession of their home after neither they nor their counsel appeared on the original motion.
The court applied the discretionary factors governing relief from orders made in a party’s absence, including proof of accident or mistake, promptness of the motion, absence of prejudice, and the underlying merits of the defence.
The defendants demonstrated that the failure to appear resulted from a mistaken belief that counsel had been retained to attend the motion.
The court further found a serious issue regarding alleged nondisclosure and conflicts of interest by an individual who acted simultaneously as financial advisor, mortgage broker, and real estate agent while connected to the mortgagee corporation.
Given the arguable defence and lack of prejudice, the court set aside the judgment and permitted the defendants to amend their defence subject to continuing mortgage payments.
