



COURT OF APPEAL FOR ONTARIO

CITATION:

CIBC Mortgages
    Inc. v. Kwaw, 2012 ONCA 602

DATE: 20120912

DOCKET: C55277

Cronk, Epstein and Pepall JJ.A.

BETWEEN

CIBC Mortgages Inc.

Plaintiff (Respondent)

and

Edmund Manna-Atta Kwaw

Defendant (Appellant)

Edmund Manna-Atta Kwaw, in person

Robert Dowhan, for the respondent

Heard and released orally: September 7, 2012

On appeal from the Order of Justice Robert M. Thompson of
    the Superior Court of Justice, dated March 27, 2012.

ENDORSEMENT

[1]

The reasons of the motion judge, although brief, indicate that he
    considered and applied the applicable test for determining whether to set aside
    a default judgment.

[2]

In particular, it is implicit in the motion judges reasons that he was
    prepared to accept that the first two branches of the test (the absence of
    delay and an adequate explanation of the circumstances giving rise to the
    default) may have been satisfied.  However, the appellants motion to set aside
    the default judgment against him foundered on the third branch of the test.  Although
    the default judgment sounds in fraud, the appellant failed to establish any
    arguable defence on the merits to either the Banks fraud claim or its
    negligence claim.  Simply put, there was no evidence of an arguable defence to
    either cause of action.  We note that, to this date, there is no explanation
    forthcoming from the appellant as to what happened to the money in question.

[3]

In these circumstances, we agree with the motion judge that the
    interests of justice, including the overall integrity of the administration of
    justice, strongly militated in favour of the dismissal of the motion.

[4]

We see no error by the motion judge in his dismissal of the motion or
    his reasoning for doing so.

[5]

The appeal is dismissed.  The respondent is entitled to its costs of the
    appeal, fixed in the amount of $2,000, inclusive of disbursements and all
    applicable taxes.

E.A. Cronk
    J.A.

Gloria J.
    Epstein J.A.

Sarah
    Pepall J.A.


