Ballentyne et al. v. Benard, 2012 SKCA 23

• Judge: Richards, Smith and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 12, 2011
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 23;(2012), 385 Sask.R. 280 (CA)

Ballentyne v. Benard (2012), 385 Sask.R. 280 (CA);

    536 W.A.C. 280

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MR.031

Mike Ballentyne and Lena Broussie (defendants/appellants) v. Marc Benard (plaintiff/respondent)

(CACV1992; 2012 SKCA 23)

Indexed As: Ballentyne et al. v. Benard

Saskatchewan Court of Appeal

Richards, Smith and Caldwell, JJ.A.

March 6, 2012.

Summary:

The landlord plaintiff sued the defendant tenants (Ballentyne and Broussie). The plaintiff's lawyers effected personal service of the claim. On his acknowledgment of service, Ballentyne identified his lawyer and set out his lawyer's office address. Regardless, neither defendant entered an appearance or filed a statement of defence within the 20 days allowed therefor. The plaintiff obtained a default judgment. No attempt was made to contact the lawyer Ballentyne had identified in his acknowledgment of service. The defendants applied to set aside the default judgment.

The Saskatchewan Court of Queen's Bench dismissed the application. The defendants appealed.

The Saskatchewan Court of Appeal allowed the appeal and set aside the default judgment.

Practice - Topic 6197

Judgments and orders - Setting aside judgments - Default judgments - Grounds - The landlord plaintiff sued the defendant tenants (Ballentyne and Broussie) - The plaintiff's lawyers effected personal service of the claim - On his acknowledgment of service, Ballentyne identified his lawyer and set out his lawyer's office address - Regardless, neither defendant entered an appearance or filed a statement of defence within the 20 days allowed therefor - The plaintiff obtained a default judgment - No attempt was made to contact the lawyer Ballentyne had identified in his acknowledgment of service - The defendants applied to set aside the default judgment - A chambers judge dismissed the application, holding that the defendants had not read and were therefore "wilfully blind" to the contents of the statement of claim - For this reason, he held that they had failed to provide a satisfactory explanation for their failure to file a timely appearance - The defendants appealed - The Saskatchewan Court of Appeal allowed the appeal and set aside the default judgment - A "wilful" default (i.e., one which could in and of itself justify dismissal of an application to set aside the default judgment) occurred where the defendant understood the import of a statement of claim and deliberately decided to let the matter go to default judgment, whether to vex the plaintiff with the cost, delay and inconvenience of defending an application to set it aside or otherwise - That was not the case here - The defendants failed to appreciate that not responding to the statement of claim would result in a legally enforceable judgment against them by default - Such conduct might well be negligent; but, if it fell short of a deliberate decision to allow a default judgment to issue, such conduct, in and of itself, did not justify denial of an application to set aside a default judgment brought in a timely way where the defendant had shown an arguable defence and no irreparable prejudice to the plaintiff if the default judgment was set aside - See paragraphs 1 to 14.

Practice - Topic 6197

Judgments and orders - Setting aside judgments - Default judgments - Grounds - The landlord plaintiff sued the defendant tenants (Ballentyne and Broussie) - The plaintiff's lawyers effected personal service of the claim - On his acknowledgment of service, Ballentyne identified his lawyer and set out his lawyer's office address - Regardless, neither defendant entered an appearance or filed a statement of defence within the 20 days allowed therefor - The plaintiff obtained a default judgment - No attempt was made to contact the lawyer Ballentyne had identified in his acknowledgment of service - The defendants applied to set aside the default judgment - A chambers judge dismissed the application, holding that the defendants had not read and were therefore "wilfully blind" to the contents of the statement of claim - For this reason, he held that they had failed to provide a satisfactory explanation for their failure to file a timely appearance - The defendants appealed - The Saskatchewan Court of Appeal allowed the appeal and set aside the default judgment - The chambers judge overlooked that Ballentyne had, in fact, taken at least one step to indicate an intention to respond to the statement of claim: he had identified his lawyer on the acknowledgment of service and had given his lawyer's address as the address for service of further court documents - This fact appeared to be inconsistent with a deliberate intention to allow the matter to go to default judgment - See paragraphs 15 and 16.

Cases Noticed:

Rimmer v. Adshead, [2002] 4 W.W.R. 119; 217 Sask.R. 94; 265 W.A.C. 94; 2002 SKCA 12, refd to. [para. 6].

Willrun Payroll Services Inc. et al. v. Prairie Land & Investment Services Ltd., [2010] 5 W.W.R. 195; 350 Sask.R. 126; 487 W.A.C. 126; 2010 SKCA 42, refd to. [para. 7].

Strange v. Saskatchewan, 2008 SKQB 481, refd to. [para. 8].

Klein v. Schile (1921), 59 D.L.R. 102 (Sask. C.A.), refd to. [para. 11].

Hamel v. Chelle (1964), 48 W.W.R. 115 (Sask. C.A.), refd to. [para. 12].

Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd. (1979), 1 Sask.R. 118; 105 D.L.R.(3d) 370 (C.A.), refd to. [para. 12].

Bank of Montreal v. Pauls et al. (1985), 35 Sask.R. 204 (C.A.), refd to. [para. 12].

Wicks v. Wicks (1990), 87 Sask.R. 139 (C.A.), refd to. [para. 12].

Counsel:

Timothy E. Turple, for the appellants;

Ashley M. Smith and Ryan LePage, for the respondent.

This appeal was heard on September 12, 2011, by Richards, Smith and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Caldwell, J.A., on March 6, 2012.