Court of Appeal for Ontario

Citation: 2012 ONCA 118

Date: 20120221

Docket: C54015 & C54016

Before: Lang, LaForme JJ.A. and Pattillo J. (Ad Hoc)

Between

Frank Fernandez

Plaintiff (Respondent)

and

Unique Auto Collision Network Solution Corp.

Defendant (Appellant)

Counsel:

Yusuf Barre, acting in person for the appellant

Deborah Corcoran, for the respondent

Heard: February 16, 2012

On appeal from the judgment of Justice Beth A. Allen of the Superior Court of Justice, dated July 11, 2011.

APPEAL BOOK ENDORSEMENT

[1] The judgment of Allen J. of July 11, 2011 must be set aside. The motion judge effectively granted default judgment on a motion that sought only a writ of possession. For that reason alone the appeal must succeed.

[2] In addition, we note that the earlier default judgment had been set aside by Penny J. on February 7, 2011. It was not subsequently reinstated.

[3] There are also a number of difficulties with the material that was filed in support of the motion before Allen J., including clarity on the defaults at issue. In the result, the material before Allen J. was inadequate to support the relief requested.

[4] The appeal is allowed and the judgment and award of Allen J. is set aside as are the writs of possession. In the circumstances, there will be no order as to costs.