Court of Appeal for Ontario

Citation: Karrys v. Bank of Montreal, 2016 ONCA 338 Date: 20160504 Docket: C61376

Before: Simmons, Gillese and Hourigan JJ.A.

Between

Peter J. Karrys Appellant (Defendant)

and

Bank of Montreal Respondent (Plaintiff)

Counsel: Peter Karrys, in person Sean Butt, for the respondent

Heard: May 2, 2016

On appeal from the order of Justice David Edwards of the Superior Court of Justice, dated October 22, 2015.

APPEAL BOOK ENDORSEMENT

[1] In our view, based on the material filed by the Bank, the motion judge drew an erroneous conclusion that the appellant had requested and required numerous extensions prior to default judgment being signed.

[2] Further, in declining to grant the alternative relief of an opportunity to file a motion to set aside the default judgment, the motion judge considered only the statement of defence and failed to consider whether the counterclaim raised a set-off. In so doing, he erred.

[3] The appeal is allowed. The motion judge’s order dismissing the motion is set aside and the appellant is granted 15 days to deliver a motion to set aside the default judgment.

[4] Costs of the appeal are in the cause of the motion to set aside the default judgment to be determined by the motion judge.