In a trademark and copyright infringement action, the plaintiff successfully moved for default judgment against several non-settling defendants. A while later, two defendants moved to set-aside the default.
The test to be met requires a moving party show it: (i) has a reasonable explanation for the failure to file a Statement of Defence, (ii) has a prima facie defence on the merits of the claim, and (iii) moved promptly or within a reasonable time to set aside the default judgement.
The test is conjunctive: a failure to establish any of the three elements is fatal. The Court held the moving defendants had failed to meet the first step of the test. As such, it was not necessary to consider the second and third steps. The court awarded $5,000 in costs payable forthwith.
Dunns Famous International Holdings Inc. v. Devine, 2023 FC 908