Tupper v. Van Rooy  O.J. No. 315 (S.C.J.)
Date of Decision: January 25, 2007
We successfully defended his client in a motion brought by the plaintiff seeking to set aside a previous order on the basis of fraud. The plaintiff alleged that our client had sworn a false affidavit and argued that pursuant to Rule 59.06(2) the order ought to be set aside. The court accepted our client’s argument that for there to be fraud the moving party must establish that there was a false affidavit made knowingly; without honest belief in its truth or with reckless indifference to the truth. The Court agreed the affidavit was not false and that the plaintiff was merely looking to reargue the previous motion under the guise that the affidavit in support of that motion was fraudulent. In light of the unfounded and unproven allegations of fraud, the Court granted our client costs on a substantially indemnity scale.
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