Tiana Perricone

This decision addresses costs and the removal/retention of a writ of seizure and sale following the setting aside of a default judgment.

The plaintiff had obtained a default judgment against the defendant for sexual assault and battery totalling approximately $500,000.

The defendant successfully moved to set aside the default judgment, and the court subsequently addressed the costs of that motion, costs thrown away, and whether the writ should remain filed.

The court fixed costs for both parties at $11,439, offsetting each other, and ordered the writ to be withdrawn and vacated within 30 days.

The defendant Jose Ramos brought a motion to set aside a default judgment obtained by the plaintiff Vittoria Fera, which had been granted after Ramos's statement of defence was struck for non-compliance with a timetable and failure to attend discovery.

Ramos argued he did not receive proper notice of key proceedings due to a change of address and an inactive email.

The court applied the three-part test for setting aside default judgments, considering promptness, plausible excuse, and arguable defence.

Despite Ramos's partial responsibility for not updating his address, the court found the plaintiff also bore responsibility for continuing service at an unresponsive address.

Given the serious allegations of sexual assault and battery, the court emphasized the importance of resolving the matter on its merits.

The motion was granted, setting aside the order striking the defence, the noting in default, and the default judgment, and reinstating the lawsuit.

The defendant, Farm Mutual Reinsurance Plan Inc. (FMRP), brought a motion for security for costs against the plaintiff, 2496300 Ontario Inc. (249), under Rule 56.01(1)(d) due to 249's insufficient assets. 249 did not dispute its lack of assets but argued against the order due to FMRP's unreasonable delay in bringing the motion, FMRP's alleged causation of 249's financial state, and 249's strong chance of success.

The court found FMRP's delay unreasonable, limiting the security to future costs.

The court also found that 249 failed to establish a "good chance of success" in overturning its independent contractor agreement.

The motion was granted in part, ordering 249 to post $50,000 for FMRP's future partial indemnity costs and to pay $15,000 in partial indemnity costs for the motion itself.