slatter Ja

3.28: Effect of not serving statement of claim in time
9.15: Setting aside, varying and discharging judgments and orders
13.5: Variation of time periods

Case Summary

The Plaintiff, Al-Ghamdi, sought to appeal a Decision by the Case Management Justice, but the Appeal was struck for failure to comply with the filing deadlines for Fast Track Appeals. Al-Ghamdi argued that he was not aware that the Appeal was a Fast-Track Appeal, and that his Appeal had sufficient merit that it should be reinstated.

Justice Slatter noted that the Court should consider several factors when determining whether to reinstate an Appeal, specifically: whether there is arguable merit to the Appeal; whether there is an explanation for why the Appeal was taken off the list; whether the Appellant moved promptly to cure the defect and have the Appeal restored; whether there was an intention to proceed with the Appeal; and whether there was prejudice to the respondents.

Al-Ghamdi argued that several of the Respondents had failed to comply with strict filing deadlines for briefs for the Application which resulted in the Decision being appealed. Slatter J.A. noted that Rule 13.5 gives the Court wide discretion to extend timelines. Al-Ghamdi’s objection that the Respondents had failed to file applications to extend the time to file their briefs was a highly technical objection, and did not aid Al-Ghamdi in showing that there was merit to the Appeal in question. Al-Ghamdi argued further that it was improper for the Case Management Justice to set aside the Defendants’ Noting in Defaults. Slatter J.A. noted that Rule 9.15(3) permits a Court to set aside a Noting in Default on any terms it considers just. Justice Slatter stated that, broadly speaking, there are two bases on which a noting in default can be set aside:

(a) In circumstances where the defendant should not have been noted in default in the first place, usually because there was not good service of the statement of claim; and

(b) In circumstances where the defendant was properly noted in default, but in the circumstances it is fair and just to allow that defendant an opportunity to defend the claim on the merits.

Justice Slatter stated that the Case Management Justice correctly held that the overall goal was fairness and therefore concluded that it was appropriate to allow the Defendants the opportunity to defend on the merits. Slatter J.A. further observed that setting aside a Noting in Default is a discretionary matter and it was not an error for the Case Management Justice to decide that the Defendants who had been noted in default should be allowed to defend given the complex nature of the eight inter-related Actions with over one hundred Defendants.

Al-Ghamdi also sought to appeal the Costs awards made against him in the Application below. Justice Slatter noted that Costs are highly discretionary and were appropriate in this case. In sum, Slatter J.A. declined to reinstate the Appeal.

View CanLII Details