Test for Setting Aside Noting in Default

In Westcott v. Khan, 2021 ONSC 1396, Justice Emery went over several cases which outline the issues to consider in setting aside a noting in default pursuant to rule 19.03(1) of the Rules of Civil Procedure. The principles are:

• The threshold for setting aside a noting in default is low.

• The court should consider factors such as the behaviour of the plaintiff, the behaviour of the defendant, the length of the defendant’s delay, and the complexity and value of the claim.

• The court may also assess prejudice to the plaintiff.

• Only in extreme circumstances should the court require a defendant who has been noted in default to demonstrate there is an arguable defence to the claim on the merits.

• A chief overarching consideration is that the court prefers to have civil disputes resolved on their merits.

• Motions to relieve against defaults are typically granted on an almost routine basis.  Usually opposing counsel will consent to such relief as a matter of professional courtesy.

• Where there is opposition to a motion to set aside a noting in default, it is usually related to additional terms which are sought as a condition to the indulgence being granted or to issues of costs.

Overall, absent exceptional circumstances, the court will generally permit a noting in default to be set aside.