Slatter, BIELBY and Wakeling JJA

9.15: Setting aside, varying and discharging judgments and orders

Case Summary

A husband appealed a Chambers Judge’s Decision to set aside his wife’s Noting in Default in an Action for divorce and division of matrimonial property, and the resulting Judgment granting him an interest in a home registered in the names of his wife and her parents. 

The Court of Appeal explained that Rule 9.15 governs the setting aside of Orders and Judgments, and that Rule 9.15(3)(a) and (b) in particular govern the setting aside of a Noting in Default or granting of Default Judgment. Pursuant to the Rule, either may be set aside where: (a) there is a non-trivial flaw in the process leading to the Default Judgment; or (b) where the procedure leading up to the Noting in Default was normal, but where the Defendant has an arguable defence, did not intend to allow the Judgment to go by default, has a reasonable excuse for the default, and promptly applied to set aside the Noting in Default when they became aware of it. The Court of Appeal also explained that, in addition to the factors to be considered in accordance with Rule 9.15(3)(a) and (b), the Court retains residual discretion to set aside the Noting in Default or Default Judgment where fairness requires it.

The Court considered each factor and determined that the Chambers Judge did not commit a palpable and overriding error in setting aside the Noting in Default and Judgment. However, the Court noted (as the Chambers Judge had) that the wife had a “dismal history of delay” and had attempted to avoid the litigation in the hopes that it would go away. As such, the parties were ordered to bear their own Costs of the Appeal.

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