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Cassels Brock Successful in Setting Aside Ex Parte Order Affecting Its Procedural and Substantive Rights

Published: 05/01/2017

Team: Peter Henein, Shane Hardy, Stefanie Holland

Cassels Brock was successful in bringing a motion on behalf of its client, Canadian Tire Corporation, Ltd., to set aside a default judgment obtained by the plaintiff without notice to any of the defendants. The default judgment granted the plaintiff monetary relief against a manufacturer/supplier who was in default in the litigation, but it also included numerous declarations which involved the same intellectual property rights claimed by the plaintiff as against our client (and to which our client was entitled to defend against). The motion was brought on the basis that (i) in obtaining the default judgment, the plaintiff failed to make full and fair disclosure to the Court of all material facts, and (ii) that our client was directly affected by the declaratory relief granted and should have been given notice by the plaintiff.

In setting aside the default judgment, Justice Myers found that the default judgment was obtained without disclosure of material facts, and that our client was “plainly affected in its legal and direct economic interests by the relief sought by the plaintiff [at the default hearing]”. Accordingly, the Court held that it could not be allowed to stand. 

Canadian Tire Corporation, Ltd. was represented by a team that included Peter J. Henein, Shane Hardy and Stefanie A. Holland.

The full decision can be found here: Western Steel and Tube Ltd. V. Technoflange Inc., 2017 ONSC 2697