What is the test for a defendant to have a default judgment against her overturned?

Ontario, Canada


The following excerpt is from Co-Operative Trust Co. of Canada v. McCowan, 2003 CanLII 10338 (ON SC):

Having regard to the four requirements that a defendant must meet in order to have the judgment against her set aside as set out by E.M. Macdonald J. in Lenskis v. Roncaioli [1992] O.J. No. 1713, I am satisfied that: 1. the defendant moved to set aside the default judgment as soon as she was informed of it in April, 2002; 2. the defendant has given a plausible explanation for the default, in that she maintains that she was not served with the statement of claim, which is quite possible given the elaborate scheme that was devised to defraud the plaintiff; 3. given the limited participation that the defendant unknowingly played in the perpetuation of the fraud upon the plaintiff, she does have an arguable case to present on its merits; and 4. the plaintiff has not suffered an injustice in that the subject property was sold and the proceeds paid to the plaintiff.

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