This was an Application by the Defendant, Pankiw (one of two Defendants in the Action, the other being Resler) to set aside a Noting in Default obtained by the Plaintiff, Anglin.

The underlying Action related to claims against Pankiw and Resler for alleged interference with Anglin’s campaign for election as a Member of Legislative Assembly. The Statement of Claim originally named Resler and a further unknown individual referred to as “John Doe”. Later, Anglin determined that the unknown individual was Pankiw and purported to serve Pankiw without amending the Statement of Claim to reflect Pankiw’s identity. Upon being served with the Statement of Claim, Pankiw retained counsel, who advised counsel for Anglin that there was no obligation to file a Statement of Defence, pending amendment to the Statement of Claim to specifically name Pankiw. Despite being so advised, Anglin proceeded to note Pankiw, as John Doe, in default. Subsequently, Anglin applied to amend the Statement of Claim and Noting in Default to name Pankiw, which Application was granted.

Summarizing the law, the Court noted that a Party seeking to hold an opposing Party in default must strictly comply with the procedural Rules and that, where there is a flaw in the procedure leading up to Default Judgment, a Defendant, proceeding promptly, is entitled to open up the Default Judgment as of right. Further, the Court noted that on Application pursuant to Rule 9.15, a Court may open up a Noting in Default where there is an arguable defence, the Defendant did not intend to allow the Judgment to go by default and has a reasonable excuse for the default, and once the Noting in Default came to the Defendant's attention they promptly applied to set it aside.

Seeking to set aside the Noting in Default, Pankiw argued that Anglin’s failure to amend the Statement of Claim upon becoming aware of Pankiw’s identity was a procedural flaw, contrary to Rule 3.76. The Court agreed, noting further that Anglin’s decision to proceed with the Noting in Default after having been made aware of his obligations to amend and being notified that Pankiw would defend following the amendment, constituted a breach of Anglin’s obligations pursuant to Rule 1.2. Further noting the availability of a reasonable defence on the part of Pankiw, the reasonableness of Pankiw’s position that no defence was required pending amendment to the Statement of Claim, and Pankiw’s prompt action upon being noted in default, particularly as compared to the lackadaisical approach adopted by Anglin, the Court allowed the Application.