3.36: Judgment in default of defence and noting in default
3.62: Amending pleading
14.8: Filing a notice of appeal

Case Summary

A Chambers Judge had previously dismissed the Applicant’s Application to have the Respondents noted in default (the “Decision”). The Applicant applied to extend time to Appeal the Decision set out in Rule 14.8, which is one month after the date the Decision was pronounced.

Khullar J.A. noted that the Court has discretion to extend the time to Appeal if it is in the interest of justice to do so and that the relevant factors to consider are whether: (1) a bona fide intention to Appeal while the right to Appeal existed; (2) an explanation for the failure to Appeal in time that serves to excuse or justify the lateness; (3) an absence of serious prejudice such that it would not be unjust to disturb the Judgment; (4) the Applicant must not have taken the benefits of the Judgment under Appeal; and (5) a reasonable chance of success on the Appeal, which might better be described as a reasonably arguable Appeal.

The Court was satisfied that the Applicant had a bona fide intention to Appeal and an excuse for filing his Notice of Appeal three days late. The Applicant was self represented and was unaware of the deadline until informed by the Court’s Case Management Officer. The Court was also satisfied that the delay in filing the Notice of Appeal did not cause the Respondents any significant prejudice as it was filed only three days after the one-month deadline set out in Rule 14.8. There was also no issue about the Applicant already taking the benefit of the Decision.

However, the Court was not satisfied that the Appeal had a reasonable chance of success and ultimately dismissed the Appeal. The Applicant had filed an initial Statement of Claim on behalf of his company but later agreed to a Consent Order to file an Amended Statement of Claim substituting himself as the Plaintiff. The Consent Order permitted the Respondents to file Amended Statements of Defence but did not require them to do so. The Applicant later applied to note the Respondents in default for failing to file Amended Statements of Defence pursuant to Rule 3.36. The Court noted that there was no evidence that the Respondents were required to file Amended Statements of Defence. The Court also noted that the Respondents were entitled to rely on their original Statements of Defence pursuant to Rule 3.62(5).

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