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Appeals - Quashing (2). Add-Vance Service Centre Ltd. v. Triloq Corp. ['appeal' of default judgment is premature]
In Add-Vance Service Centre Ltd. v. Triloq Corp. (Ont CA, 2024) the Ontario Court of Appeal quashed an appeal, here of a default judgment on the prematurity grounds that it was not a final order - since a motion to set aside was available and more efficient:[1] This is a motion to quash the notice of appeal of Edgar Bray, which was initially served on the respondents/moving parties, Add-Vance Service Centre Ltd. (“Add-Vance”) and Abdalrahman Alhazmy, filed on June 6, 2024.
[2] The motion is unopposed. We granted the motion at the hearing for reasons to follow. These are our reasons.
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[4] The moving parties argue that no appeal lies to this court from a decision on default judgment because it is not a final order of a judge of the Superior Court of Justice under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[5] As this court has observed, default judgments are not uncommon and a motion to set aside a default judgment under r. 19.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides “an efficient and relatively inexpensive means by which a party can challenge a default judgment”: 10720143 Canada Corp. v. 2698874 Ontario Inc., 2023 ONCA 463, at para. 16. Such motions are often successful.
[6] The interlocutory nature of a default judgment has been confirmed by this court on many occasions: 10720143 Canada Corp v. 2698874 Ontario Inc., at paras. 16-18. See also, for example, National Bank of Canada v. Royal Bank of Canada (1999), 1999 CanLII 3733 (ON CA), 44 O.R. (3d) 533 (C.A.); Hans v. Mohammadi (2005), 2005 CanLII 21090 (ON CA), 198 O.A.C. 374 (Ont. C.A.), at para. 11; Siivonen v. Halow (2002), 2002 CanLII 41790 (ON CA), 59 O.R. (3d) 211 (Ont. C.A.), at paras. 6-7; Laurentian Bank of Canada v. Goldshmidt, 2013 ONCA 122, at para. 4; Pasquale Doldo (Canadian Construction and Trucking) v. 1497601 Ontario Limited (Weston Gate Gardens), 2014 ONCA 73, 42 C.L.R. (4th) 7, at para. 4.
[7] Therefore, the motion to quash must be granted. . Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure)
In Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure) (Div Court, 2024) a single judge of the Divisional Court considered a JR by a citizen's group of the province's "decision not to include the redevelopment of Ontario Place’s West Island in the Category C Public Work Class Environmental Assessment of the Ontario Place Redevelopment Project pursuant to the Environmental Assessment Act".
Here the court dismissed a motion to quash the JR:Test on a Motion to Quash
[20] The test on a motion to quash an application for judicial review is whether it is “plain and obvious” or “beyond doubt” that the application cannot succeed: Ye v. Toronto District School Board, 2023 ONSC 2918 at para.18.
[21] Alternatively, to the extent that there is no longer a tangible and concrete dispute between the parties, a single judge can quash an application on the basis of mootness.
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