COURT OF APPEAL FOR ONTARIO
Blair, MacFarland and Rouleau JJ.A.
BETWEEN
Demetra Toula Pournaras, Athena Pournaras and Georgia Pournaras
Plaintiffs (Respondents)
and
Qiang Zuo and the Wawanesa Mutual Insurance Company
Defendants (Appellant)
Sue K. Chen, for Qiang Zuo
Timothy Kinnaird, for the plaintiffs/respondents
Heard: February 13, 2013
On appeal from the order of Justice Beth Allen of the Superior Court of Justice, dated September 4, 2012.
APPEAL BOOK ENDORSEMENT
1The motion judge considered the three principles identified in the case law governing the exercise of discretion on a motion to set aside a default judgment. The motion judge however did not then consider whether, ultimately, it was in the interest of justice to set aside the default judgment. In our view, she erred in this regard. In this case, there are good reasons to conclude it is in the interests of justice to set aside the default judgment.
2On the record it appears that the damage award was in excess of what was allowed under the simplified rules and the materials filed call into question whether the statutory requirements for applying deductibles were complied with. There was also an issue raised in the materials as to whether the claim met the threshold.
3For these reasons, the appeal is allowed and the order of Allen J. is set aside and an order setting aside the default judgment of Whitaker J. is granted. The order of costs of Allen J. is also set aside. Costs of the appeal to be in the cause and fixed at $3,500 inclusive of disbursements and applicable taxes.