Orie Hertzog Niedzviecki

The appellant appealed from a Master's order dismissing a motion to set aside a default judgment.

The Master found the appellant moved in a reasonable time and had a potential defence, but lacked a plausible explanation for the default and that it was equitable to let the judgment stand.

The Divisional Court held that reasonable notice was required before default judgment was signed, given the overall settlement was a fresh step.

The appeal was allowed and the default judgment set aside, conditional on the appellant paying $3,000 in costs thrown away and paying $15,000 into court.

On an appeal from an order refusing to add investor creditors as plaintiffs by counter-claim, the court held that a bank owed no fiduciary duty to unsecured creditors of its corporate customers merely because they shared a common debtor.

Applying the Anns/Kamloops framework, the court found no pleaded facts establishing proximity or reasonable reliance sufficient to create a prima facie duty of care in negligent misrepresentation.

The alleged statements to one guarantor did not support a relationship of reliance by a wider class of investors.

In any event, policy considerations barred recovery because recognizing such a duty would create indeterminate liability to an unlimited class.

The appeal was dismissed.