BOTAR v BRADEN EQUITIES INC, 2017 ABQB 21
9.15: Setting aside, varying and discharging judgments and orders
The Defendant failed to defend a Claim brought by the self-represented Plaintiff who claimed $1 million for alleged unlawful entry of his rented premises and assault, among other things. The Plaintiff noted the Defendant in default, and immediately sought and obtained an ex parte Default Judgment against the Defendant in the amount of $8,500. The Defendant applied to have the Default Judgment set aside.
The Defendant argued that the overarching principle that the Court should consider in an Application to set aside a Default Judgment is fairness. Michalyshyn J. noted that there was no material difference between the former Rules and current Rule 9.15(3). The three part test that a party must meet to set aside a Default Judgment is: (1) an arguable defence; (2) some excuse for the default; and (3) a prompt Application to set aside the Default Judgment has been made. Michalyshyn J. also stated that the absence of wilful delay, as well as the absence of prejudice to the Plaintiff would factor largely in the outcome of an Application to set aside a Default Judgment.
Michalyshyn J. held that the Defendant had an arguable defence, there was conflicting evidence and a need for a credibility assessment, there was evidence of an excuse for the default, and the Defendant’s Application to set aside Default Judgment was brought in good time. The Defendant’s Application to set aside the Default Judgment was therefore granted.