Default judgment or summary judgment in the context of a breach of trust action under the Construction Act.

A motion decision released this week by the Superior Court of Justice discussed the jurisdiction of an associate judge with respect to granting default judgment vs. summary judgment in the context of a breach of trust action under the Construction Act.

At the hearing of the motion in February, the Court struck the defences of two defendants and ordered the registrar to note the defendants in default. At issue in this decision (among other things) was the plaintiff’s request for judgment against the two defendants.

Although the defendants had their defences struck and had been noted in default, the Court found that the extent of the breach of trust, which was not pleaded, was a matter requiring judicial determination. Consequently, the breach of trust claim was an unliquidated claim, and so the associate judge did not have the jurisdiction to grant default judgment.

However, plaintiff’s counsel also asked the Court to consider granting summary judgment if the Court determined that it lacked jurisdiction to grant default judgment. The Court found that a summary judgment motion brought under Rule 20 can be brought before an associate judge and that there was no restriction on the jurisdiction to grant summary judgment for an unliquidated sum.

As a result, Associate Judge Robinson found that the case was appropriate for summary judgment and did grant summary judgment after determining that there was no genuine issue for trial.

A link to the full decision (which also discusses a number of other issues) is in the comments!Click here for a link to the decision.

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