CITATION: Canadian Imperial Bank of Commerce v. Csorba, 2007 ONCA 211

DATE: 20070326

DOCKET: C45561

COURT OF APPEAL FOR ONTARIO

RE:

CANADIAN IMPERIAL BANK OF COMMERCE (Plaintiff/ Respondent) – and – KAMELLIA J. CSORBA and LYNCH & MOBBE INC. (Defendants/Appellant)

BEFORE:

BLAIR, MACFARLAND and LAFORME JJ.A.

COUNSEL:

Daniel J. Wyjad

for the appellant

Ralph Swaine

for the respondent

HEARD & ENDORSED:

March 20, 2007

On appeal from the final order of Justice Langdon of the Superior Court of Justice dated May 18, 2006..

A P P E A L B O O K E N D O R S E M E N T

[1] There is little dispute about the test to be applied on a motion to set aside a default judgment. In general terms, the moving party must (a) move to set aside the default in a timely fashion, (b) explain the default and (c) show an arguable defence on the merits. This case turned on the second aspect of the test – the explanation for the default. The appellant deliberately ignored the Bank’s assertion of its claim and the service of the statement of claim.

[2] It is conceded, for purposes of this appeal, that the appellant has an arguable defence on the merits. As Labrosse J.A. noted in Sinnadurai v. Laredo Construction Inc. (2005), 78 O.R. (3d) 321 at para. 25, however, “this does not mean that the second part of the test is to be ignored because of an arguable defence. Otherwise why have it?” The second part of the test must be weighed as part of the exercise of the motion judge’s discretion.

[3] This motion judge did so. He determined in the exercise of his discretion that the appellant’s explanation was not satisfactory. He applied the correct principles and we can see no basis for saying he was clearly wrong.

[4] The appeal is therefore dismissed. The respondent is entitled to its costs fixed in the amount of $5,000 all inclusive.