THOBANI v CHAHAL, 2021 ABQB 919
3.2: How to start an action
3.9: Service of originating application and evidence
9.15: Setting aside, varying and discharging judgments and orders
This decision arose from an Application brought to set aside a Default Judgment pursuant to Rule 9.15(1).
The Court considered the three-part test for setting aside a default judgment under Rule 9.15, specifically: (i) that there be an arguable defence; (ii) that 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 (iii) that once the noting in default came to the Defendant’s attention, they promptly applied to set it aside.
The Court noted that setting aside a default judgment does not require satisfaction of each part of the test, but rather the Court is obligated to grant relief where fairness requires it. Additionally, the Court clarified that Rule 9.15(1) mandates proof of insufficient notice or failure to appear through accident or mistake and that Rule 9.15(2) imposes the corresponding time-limitation to bring an Application to which Rule 9.15(1) applies.
The Court determined that the Applicants’ failure to appear was due to insufficient notice on the part of one Applicant (where he was out of the country, not accessing his email and social media, and service was shorter than the time period prescribed by Rule 3.9) and, on the part of the other to Applicants, they failed to appear due to accident or mistake.
The Court additionally found that the Applicants acted reasonably promptly notwithstanding the fact the Application was not filed in accordance with the time frame in Rule 9.15(2); the Respondents had notice that the Judgment would be challenged well before counsel for the Applicants filed the Application to set aside.
The Court set aside the Judgment.
The Court further determined that the Claim should have been started by Statement of Claim in accordance with Rule 3.2(2)(a) and that the Court was entitled to correct this pursuant to Rule 3.2(6) where the Applicant borrower could assert his limitations defence.View CanLII Details