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Federal Court - Default Proceedings. 2474234 Ontario Inc. v. Dunn's Famous International Holdings Inc.
In 2474234 Ontario Inc. v. Dunn's Famous International Holdings Inc. (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal, here of motion to set aside a default judgment:[4] The appellants brought the motion to set aside the default judgment early in 2023. The Federal Court said that, to succeed on their motion, the appellants had to demonstrate that Mr. Smith and 247 (i) had a reasonable explanation for their failure to file a statement of defence, (ii) had a prima facie defence on the merits of the claim, and (iii) moved promptly or within a reasonable time to set aside the default judgment. The failure to establish any of the three would be fatal to their motion: reasons at paras. 16-17, citing Babis (Domenic Pub) v. Premium Sports Broadcasting Inc., 2013 FCA 288 at paras. 5-6; UBS Group AG v. Yones, 2022 FC 487 at para. 17; Moroccanoil Israel Ltd. v. Laboratoires parisiens Canada (1989) Inc., 2012 FC 962 at para. 20.
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[6] Before us, the appellants do not allege the Federal Court erred in identifying the test for setting aside a default judgment. ... . Voltage Holdings, LLC v. Doe #1
In Voltage Holdings, LLC v. Doe #1 (Fed CA, 2023) the Federal Court of Appeal notes that the burden of proof still lies upon a plaintiff even in a default situation [R210]:[38] A defendant’s failure to file a defence means that no allegations of fact in a pleading are admitted (Rule 184(1); Tatuyou, LLC v. H2Ocean Inc., 2020 FC 865, 176 C.P.R. (4th) 1 at para. 9 [Tatuyou]; NuWave Industries Inc. v. Trennen Industries Ltd., 2020 FC 867, 177 C.P.R. (4th) 1 at para. 16 [NuWave]). Therefore, the appellant, as plaintiff before the Federal Court, bore the legal or persuasive burden of leading sufficient evidence to prove the necessary elements of its claim on a balance of probabilities (Tatuyou at paras. 9, 25; NuWave at para. 16).
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