VANDEN BRINK v RUSSELL, 2012 ABQB 523
3.27: Extension of time for service
9.15: Setting aside, varying and discharging judgments and orders
The Defendant applied to set aside a Default Judgment obtained by the Plaintiff. The Defendant argued that he was entitled to set aside the Default Judgment as of right because he was never served with the Statement of Claim. He further argued that the Court should exercise its discretion to set aside the Default Judgment pursuant to Rule 9.15(3).
Master Prowse rejected the Defendant’s Application to set aside the Default Judgment as of right, because the Plaintiff had proffered sufficient evidence to prove Service, and because the Defendant’s evidence denying Service was not credible. Although the Plaintiff bears the burden of proving Service, in the absence of filed evidence that puts Service in doubt, the Plaintiff’s burden is satisfied by filing an Affidavit of Service. Where conflicting Affidavits result in a deadlock, viva voce evidence should be heard by a Justice in Chambers to resolve the matter based on findings of credibility. Only if the matter remains deadlocked after a viva voce hearing should a Default Judgment be set aside on the basis of the Plaintiff’s failure to meet their onus.
Master Prowse held that this approach avoids a scenario whereby a Plaintiff obtaining a Default Judgment faces the prospect of it later being set aside based on a bare denial of Service by the Defendant. The consequence of setting aside the Judgment may be that the time for Service of the Statement of Claim will have elapsed, and the Cause of Action lost due to limitations issues. While Rule 3.27(1)(b) allows the time for Service of a Statement of Claim to be extended where an Order for Substitutional Service is later set aside, there is no provision to extend the time where proof of Service upon which a Default Judgment has been issued is later rejected.
Master Prowse noted that the Court considers three factors in an Application pursuant to Rule 9.15: (1) the Court will consider the reason the Defendant failed to file a Statement of Defence within the time provided by the Rules; (2) the Court will consider whether the Defendant delayed in applying to set aside Default Judgment once he became aware of it; and (3) the Court will consider whether the Defendant has an arguable defence. Master Prowse held that the Defendant had no adequate reason for not filing a Statement of Defence within the time afforded by the Rules, and further that the Defendant delayed in pursuing his Application to set aside the Default Judgment. However, Master Prowse held that the Defendant had an arguable Defence on the merits. As such, and given an absence of prejudice to the Plaintiff, the Default Judgment was set aside.View CanLII Details