The defendant brought a motion to set aside a noting in default and default judgment obtained by the plaintiff in a breach of contract action.
The plaintiff had taken active steps to obtain the default judgment without notice to the defendant, despite being contacted by the defendant's counsel who requested consent to file a statement of defence.
Applying the five-factor test from Intact Insurance Co. v. Kisel, the court found that the defendant moved promptly, had an arguable defence on the merits, and that the plaintiff's conduct in obtaining the judgment was evasive.
The court granted the motion, setting aside the noting in default, the default judgment, and the associated writ of seizure and sale.
