A statutory third-party insurer moved to set aside a prior summary judgment establishing liability against insured defendants in a motor vehicle personal injury action.
The insurer argued that under s. 258(15) of the Insurance Act it should be permitted to contest liability and damages despite the default and summary judgment entered against the insured.
The court held that the insurer had chosen not to participate in earlier proceedings and was effectively attempting a collateral attack on a prior order refusing to set aside the noting in default.
Because the insurer provided no evidence of a viable defence on the merits and failed to meet the applicable test for setting aside a judgment, the court declined to set aside or vary the order.
The request to allow the insurer to contest liability notwithstanding the judgment was also refused.
