Nobosoft Corporation v. No Borders, Inc.,

• Jurisdiction: Ontario
• Judge: Doherty, MacPherson and Cronk, JJ.A.
• Neutral Citation: 2007 ONCA 444
• Citation: (2007), 225 O.A.C. 36 (CA),2007 ONCA 444,[2007] OJ No 2378 (QL),158 ACWS (3d) 896,225 OAC 36,43 CPC (6th) 36,(2007), 225 OAC 36 (CA),225 O.A.C. 36,[2007] O.J. No 2378 (QL)
• Date: 12 June 2007
• Court: Court of Appeal (Ontario)

Nobosoft Corp. v. No Borders Inc. (2007), 225 O.A.C. 36 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JN.038

Nobosoft Corporation (respondent/plaintiff) v. No Borders Inc., Raul Hinojosa, Michael Rosenfeld and Ruben Sanchez (appellants/defendants)

(C46105; 2007 ONCA 444)

Indexed As: Nobosoft Corp. v. No Borders Inc. et al.

Ontario Court of Appeal

Doherty, MacPherson and Cronk, JJ.A.

June 12, 2007.

Summary:

The defendants moved to set aside the noting in default obtained against co-defendant No Borders Inc.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. Uned. 978, dismissed the motion. The defendants appealed.

The Ontario Court of Appeal allowed the appeal.

Practice - Topic 6197

Judgment and orders - Setting aside default judgments (incl. noting in default) - Grounds - The defendants appealed the denial of their motion to set aside the noting in default obtained against No Borders Inc. - The Ontario Court of Appeal allowed the appeal - The motion judge erred by inquiring only as to whether No Borders formed an intent to defend prior to the expiry of the time for delivery of its defence - Factors such as the parties' behaviour, the length of the delay, reasons for the delay and the complexity and value of the claim were all relevant matters requiring consideration - There was uncontradicted evidence that No Borders did not defend the action to avoid attorning to the jurisdiction - The motion judge made no assessment of this explanation nor whether No Borders had an arguable defence - There was no evidence that No Borders sought to flout or abuse the rules of civil procedure - Granting the requested relief would not cause prejudice to the plaintiff - The noting in default was set aside.

Cases Noticed:

Metropolitan Toronto Condominium Corp. No. 706 v. Bardmore Developments Ltd. et al. (1991), 49 O.A.C. 1; 3 O.R.(3d) 278 (C.A.), refd to. [para. 3].

McNeill Electronics Ltd. v. American Sensors Electronics Inc. (1998), 15 O.T.C. 20; 5 C.P.C.(4th) 266 (Gen. Div.), revd. 108 O.A.C. 257 (C.A.), refd to. [para. 7].

Counsel:

Jonathan L. Rosenstein, for the appellants;

Edward L. D'Agostino, for the respondent.

This appeal was heard on June 12, 2007, by Doherty, MacPherson and Cronk, JJ.A., of the Ontario Court of Appeal. The following judgment was released orally by the Court on June 12, 2007, and in writing on June 18, 2007.