Canadian Union of Public Employees, Local 9 v. Bethke, 2014 SKQB 111

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 15, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 111;(2014), 443 Sask.R. 135 (QB)

CUPE v. Bethke (2014), 443 Sask.R. 135 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.008

Canadian Union of Public Employees Local #9 (plaintiff) v. Diana Agnes Christine Bethke (defendant)

(2011 Q.B. No. 65; 2014 SKQB 111)

Indexed As: Canadian Union of Public Employees, Local 9 v. Bethke

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

Gunn, J.

April 15, 2014.

Summary:

The defendant was actively involved with the plaintiff union and had control over its finances. The plaintiff discovered that funds were missing and commenced an action against the defendant. Criminal charges were also laid. In June 2011, the plaintiff obtained a default judgment of $241,628.44 against the defendant. In the criminal case, a forensic audit revealed that the amount of fraud was $178,320.58. The defendant pled guilty to fraud in that amount. A restitution order was made and the defendant was sentenced. The criminal proceedings concluded in December 2013. The defendant was advised by her counsel that it would no longer prejudice her to apply to open up the civil judgment and to request permission to defend the application. The defendant applied to set aside the default judgment, but only as to the amount in excess of $178,320.58.

The Saskatchewan Court of Queen's Bench allowed the application.

Practice - Topic 6197

Judgments and orders - Setting aside default judgments (incl. noting in default) - Grounds - The defendant was actively involved with the plaintiff union and had control over its finances - The plaintiff discovered that funds were missing and commenced an action against the defendant - Criminal charges were also laid - In June 2011, the plaintiff obtained a default judgment of $241,628.44 against the defendant - In the criminal case, a forensic audit revealed that the amount of fraud was $178,320.58 - The defendant pled guilty to fraud in that amount - A restitution order was made and the defendant was sentenced - The criminal proceedings concluded in December 2013 - The defendant was advised by her counsel that it would no longer prejudice her to apply to open up the civil judgement and to request permission to defend the application - The defendant applied to set aside the default judgment, but only as to the amount in excess of $178,320.58 - The Saskatchewan Court of Queen's Bench allowed the application - The defendant's delay in bringing this application, which was due to the criminal proceedings taking priority, had been satisfactorily explained - There was merit in the matter to be litigated - There was no irreparable harm to the plaintiff.

Practice - Topic 6199

Judgments and orders - Setting aside default judgments (incl. noting in default) - Delay in applying - [See Practice - Topic 6197 ].

Cases Noticed:

Ballentyne et al. v. Benard (2012), 385 Sask.R. 280; 536 W.A.C. 280; 2012 SKCA 23, refd to. [para. 8].

Willrun Payroll Services Inc. et al. v. Prairie Land & Investment Services Ltd. (2010), 350 Sask.R. 126; 487 W.A.C. 126; 2010 SKCA 42, refd to. [para. 10].

Hamel v. Chelle (1964), 48 W.W.R. 115 (Sask. C.A.), refd to. [para. 11].

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. 11].

Bank of Montreal v. Pauls et al. (1984), 35 Sask.R. 204 (C.A.), refd to. [para. 11].

Wicks v. Wicks (1990), 87 Sask.R. 139 (C.A.), refd to. [para. 11].

Rimmer v. Adshead (2002), 217 Sask.R. 94; 265 W.A.C. 94; 2002 SKCA 12, refd to. [para. 11].

R. v. Bethke (D.) (2013), 427 Sask.R. 135; 591 W.A.C. 135; 2013 SKCA 135, refd to. [para. 17].

Counsel:

Kenneth M. Cornea, for Canadian Union of Public Employees Local #9;

Kerry R. Chow, for Diana Bethke.

This application was heard by Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following judgment on April 15, 2014.