Yamauchi j

9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Defendants sought to terminate an Attachment Order that the Plaintiff bank, RBC, had obtained against the Defendants’ motorhome (the “RV”). The bank alleged that the Defendants had used borrowed funds to fraudulently purchase the RV under a numbered company. The Defendant, Mr. McLaughlin, defaulted on the loan agreement, and RBC registered notice of its security interest in the RV. RBC argued that, while the RV was registered in the name of the corporation, at all material times the loan was issued to the individual Defendants. There was no lawful or legitimate business of the corporation that was related to the use of the RV. Accordingly, RBC argued, the Attachment Order should stand.

The Court noted that the Defendants, in making their Application, were relying on Rule 9.15 which provides that a Court may set aside, vary or discharge a Judgment or Order, if the prescribed circumstances are met. Yamauchi J. reviewed the relevant authorities, and found that Rule 9.15 gives the Court broad discretion in determining whether to set aside Interlocutory Orders. After reviewing the procedural history and the facts, Justice Yamauchi concluded that RBC had met its onus to show that the Attachment Order should be maintained pending the Trial of this matter. The Court dismissed the Application.

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