Court of Appeal for Ontario

Citation: Gore Mutual Insurance Company v. Chau, 2009 ONCA 380

Date: 20090505

Docket: C49802

Before: Simmons, Blair and Epstein JJ.A.

Between:

Gore Mutual Insurance Company

Plaintiff (Respondent)

and

Peter Chau and Anne Chau

Defendants (Appellants)

Counsel:

Garth Low, for the appellants

Karen Power and Arthur Camporese, for the respondent

Heard and endorsed orally: April 24, 2009

On appeal from the order of Justice N. Borkovich of the Superior Court of Justice dated November 25, 2008.

APPEAL BOOK ENDORSEMENT

[1] The motion judge dismissed the appellants' motion to set aside a default judgment holding, “there is no merit in the grounds alleged in the motion.”

[2] In the absence of reasons, the motion judge's decision is not entitled to deference.

[3] The respondent relies on a standard mortgage clause as the basis for its claim. That clause was not in the material before the motion judge and it was not in the material before the judge who granted default judgment. Although the respondent may ultimately have a valid claim, to date it has not been demonstrated. As the respondent's claim as pleaded is unclear, it follows that there is a triable issue as to a defence.

[4] Accordingly, the appeal is allowed and the judgment below is set aside. Judgment shall issue setting aside the default judgment on terms that a defence be filed within 30 days. Further, particularly given the appellants’ delay, the writ of seizure and sale shall remain in place but enforcement shall be stayed.

[5] Costs of the appeal are to the appellants in the amount of $4540.12 inclusive of disbursements and G.S.T. Costs of the motion are to the appellants in the cause in the amount of $3000.00 inclusive of G.S.T. and disbursements.