Court of Appeal for Ontario

CITATION: CIBC Mortgages Inc. v. Kwaw, 2012 ONCA 602

DATE: 20120912

DOCKET: C55277

Cronk, Epstein and Pepall JJ.A.

BETWEEN

CIBC Mortgages Inc.

Plaintiff (Respondent)

and

Edmund Manna-Atta Kwaw

Defendant (Appellant)

Counsel:

Edmund Manna-Atta Kwaw, in person

Robert Dowhan, for the respondent

Heard and released orally: September 7, 2012

On appeal from the Order of Justice Robert M. Thompson of the Superior Court of Justice, dated March 27, 2012.

ENDORSEMENT

[1] The 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.

[2] In 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.

[3] In 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.

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

[5] The 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.

“E.A. Cronk J.A.”

“Gloria J. Epstein J.A.”

“Sarah Pepall J.A.”