Court of Appeal for Ontario

Date: 2026-03-11 Docket: COA-25-CV-0752

Huscroft, Zarnett and Pomerance JJ.A.

Between

Amex Bank of Canada Plaintiff (Respondent)

and

Terry Almeida DaCosta also known as Terry DaCosta also known as Terry Da Costa* and 166145 Ontario Limited carrying on business as Boss Services Defendants (Appellant*)

Counsel: Michael A. Prosia and Mackenzie Laforet, for the appellant Mehrnaz Asad, for the respondent

Heard and rendered orally: March 10, 2026

On appeal from the order of Justice Colleen Yamashita of the Superior Court of Justice, dated May 21, 2025.

Reasons for Decision

[1] On June 1, 2022, the respondent obtained default judgment against the appellant for the unpaid balance of charges incurred on a credit card. In January 2025, the appellant moved to set aside that judgment. By the order under appeal, the motion judge dismissed the appellant's motion.

[2] The motion judge recited the factors to be considered in deciding whether to aside a default judgment as approved by this court in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49. She reminded herself that the factors are not treated as rigid rules but are to be employed in the service of the overarching question: whether it is just to relieve the defendant of the consequences of the default: Mountain View, at para. 50.

[3] According to the motion judge, all of the Mountain View factors, save one, counted against the appellant. She found that there was a lengthy and unexplained delay in bringing the motion after the appellant had become aware of the judgment—a delay of two years based on the respondent's evidence of contact between its lawyers and the appellant, and of at least one year on the appellant's own evidence. She did not accept that the appellant had proffered a plausible excuse for the default in defending the claim that led to the judgment being granted in the first place. She found he was aware of efforts to serve the claim and chose to believe that it did not involve him personally—circumstances she characterized as "willful blindness". Moreover, she found that when the claim was served substitutionally it would have come to the appellant's attention. She found the prejudice to both parties was monetary, but that the potential prejudice to the respondent in allowing the motion would be greater. And she found that in view of the length of the unexplained delay and the lack of a plausible excuse for the default, the "overall integrity of the administration of justice favours dismissal of the motion".

[4] The motion judge did accept that the appellant raised a proposed defence with an air of reality by contending that he had signed the application for the credit card on behalf of a corporation and was told by a representative of the respondent that there would be no personal liability. She described the proposed defence as "weak" but noted that, under Mountain View, the merits factor aimed only at whether there was an air of reality to the proposed defence, not whether it would inevitably succeed. She held that while the existence of an arguable defence may justify setting aside a default judgment, this was not such a case, in light of the appellant's significant delay in bringing the motion to set the judgment aside.

[5] A motion judge's "decision to set aside a default judgment is a discretionary one that will attract deference on appeal. It should not be interfered with absent an error in law or principle, a palpable and overriding error of fact, or unless the decision is so clearly wrong as to amount to an injustice": Mountain View, at para. 55.

[6] We are not satisfied that the appellant has demonstrated any basis for appellate interference.

[7] The appellant argues that the motion judge erred in principle by going beyond her finding that the appellant's proposed defence had an air of reality to describe it as "weak". He submits that this tainted her approach. We disagree. The motion judge was cognizant of the fact that even a weak defence could satisfy the merits factor of a defence with an air of reality. But, as with all of the Mountain View factors, the existence of a defence that passes the low "air of reality" bar does not compel a particular result. It must be weighed, with the other factors, to determine a just result. That is what the motion judge did. She weighed the merits factor with the others—especially the unexplained lengthy delay—and exercised her discretion not to set aside the judgment.

[8] The appellant also challenges the way the motion judge assessed the other Mountain View factors. But her assessment of each was based on findings that were open to her on the record. No reversible error has been shown.

[9] Accordingly, the appeal is dismissed.

[10] We award costs of the appeal to the respondent, payable by the appellant, fixed in the amount of $7,500 inclusive of disbursements and applicable taxes.

"Grant Huscroft J.A." "B. Zarnett J.A." "R. Pomerance J.A."