Hernando's Hideway Inc. v. Lidda Yonge Holdings Ltd., (1984) 1 O.A.C. 370 (CA)

• Judge: Arnup, Blair and Weatherston, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 13, 1983
• Jurisdiction: Ontario
• Citations: (1984), 1 O.A.C. 370 (CA)

Hernando's Hideway v. Lidda Yonge (1984), 1 O.A.C. 370 (CA)

MLB headnote and full text

Hernando's Hideaway Inc. v. Lidda Yonge Holdings Limited

Indexed As: Hernando's Hideway Inc. v. Lidda Yonge Holdings Ltd.

Ontario Court of Appeal

Arnup, Blair and Weatherston, JJ.A.

January 9, 1984.

Summary:

The defendant applied to set aside a default judgment signed against him.

The Ontario County Court allowed the application and allowed the action to continue, because, unknown to the plaintiff, an appearance had been filed and served. The plaintiff appealed.

The Ontario High Court, in a decision unreported in this series of reports, allowed the appeal and restored judgment for the plaintiff. The defendant appealed.

The Ontario Court of Appeal allowed the appeal and set aside the default judgment, in the interests of justice. The Court of Appeal ordered the defendant to file a statement of defence within 15 days.

Practice - Topic 6197

Judgments and orders - Setting aside judgments - Default judgments - Grounds - Interests of justice - An appearance filed by the defendant's solicitors was either misfiled or lost by the court - The appearance's copy was mailed to the plaintiff's solicitors but never received - The defendant was personally served with a statement of claim and notice of trial but did nothing - The plaintiff obtained default judgment in the defendant's absence - The defendant's solicitors did not discover the judgment until months later - The Ontario Court of Appeal set aside the default judgment in the interests of justice, because the defendant was only partly responsible for its being signed against him.

Counsel:

J. Freedlander, for the defendant, appellant;

D.R. Fiske, for the plaintiff, respondent.

This appeal was heard before Arnup, Blair and Weatherston, JJ.A., of the Ontario Court of Appeal, on December 13, 1983. The decision of the Court of Appeal was delivered orally by Arnup, J.A., and released on January 9, 1984.