mandziuk j

1.2: Purpose and intention of these rules
9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Appellants, the Morins appealed a Decision of the Provincial Court in which the Application to set aside a Default Judgment and permit them to file a Dispute Note despite being Noted in Default was dismissed. Pursuant to Section 51 of the Provincial Court Act, RSA 2000, c P-31, the Appeal was heard on the existing record as neither party applied to have the Appeal heard de novo.

The Provincial Court Judge had applied the test to set aside a Default Judgment which requires the applicant demonstrate 1) an arguable defence; 2) that he did not deliberately let Judgment go by default and has some excuse for the default, such as illness or a solicitor’s inadvertence; and 3) after learning of the Default Judgment, the applicant moved promptly to open it up. The Provincial Court Judge found that the Appellants had met the second and third branches of the test, however, the Appellants had failed to produce any evidence in support of their proposed defence, and thus, failed to demonstrate any arguable defence as required by step one of the test.

Justice Mandziuk, following a consideration of the applicable standard of review on the Appeal, found that the record did not disclose that the Provincial Court Judge misunderstood the evidence, drew erroneous conclusions from that evidence, or that there was any “flaw, fallacy, or mistake” in the Decision. Justice Mandziuk held that the Provincial Court Judge’s reliance on Hryniak v Mauldin, 2014 SCC 7 (CanLII), did not disclose an error, as the Decision was used for the “general proposition” regarding the need to expeditiously resolve disputes, which was in accordance with the principles in Rule 1.2. The Appeal was dismissed.

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