CIBC Mortgages Inc. v. Kwaw, 2012 ONCA 602

ENDORSEMENT

1The reasons of the motion judge, although brief, indicate that he considered and applied the applicable test for determining whether to set aside a default judgment.

2In particular, it is implicit in the motion judge’s reasons that he was prepared to accept that the first two branches of the test (the absence of delay and an adequate explanation of the circumstances giving rise to the default) may have been satisfied. However, the appellant’s motion to set aside the default judgment against him foundered on the third branch of the test. Although the default judgment sounds in fraud, the appellant failed to establish any arguable defence on the merits to either the Bank’s fraud claim or its negligence claim. Simply put, there was no evidence of an arguable defence to either cause of action. We note that, to this date, there is no explanation forthcoming from the appellant as to what happened to the money in question.

3In these circumstances, we agree with the motion judge that the interests of justice, including the overall integrity of the administration of justice, strongly militated in favour of the dismissal of the motion.

4We see no error by the motion judge in his dismissal of the motion or his reasoning for doing so.

5The appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed in the amount of $2,000, inclusive of disbursements and all applicable taxes.