9.15: Setting aside, varying and discharging judgments and orders

Case Summary

In response to defamatory statements that the Appellant, Morin, had published to Facebook, the Respondents had filed and served a Statement of Claim which the Appellant did not defend. Accordingly, Morin was noted in default, and appealed the lower Court’s Decision not to open up her Noting in Default which, if successful, would allow her to file a Statement of Defence pursuant to Rule 9.15.

In assessing the Application, the Court noted that Rule 9.15(3)(a) grants the Court discretion to open up a Noting in Default on any terms that it considers just. Additionally, the criteria for opening up a Noting in Default were set out in Kraushar v Kraushar, 2019 ABCA 186 as follows: (a) there is an arguable defence; (b) the Defendant did not intend to allow the Judgment to go by default and offers some reasonable excuse for the default such as illness or a solicitor’s inadvertence; and (c) once the Noting in Default came to the Defendant’s attention, they promptly applied to set it aside.

In applying these factors, the Court agreed with the Chambers Judge that the Appellant had fulfilled the third arm of the test, as she had moved quickly to make an Application to set aside the Noting in Default. However, the Court was not satisfied that the Appellant was able to provide a reasonable excuse as required by the second part of the test as: (1) she was educated; (2) she was not intimidated by the legal process (as she had taunted the Respondents to sue her in Facebook posts); and (3) her assertion that caring for her aging mother had prevented her from mounting a defence was rejected by the Chambers Judge.

Finally, the Court stated that the most important element of the test was an arguable defence, and that even though the Appellant was not burdened with proving her defence would be successful, she was required to tender some credible evidence that her defence was at least viable. As the Appellant was unable to produce any records showing that the defamatory statements she had made were in fact true, the Court upheld the Chambers Judge’s finding that she had failed to satisfy this aspect of the test. The Court of Appeal dismissed the Appeal.

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