Digest: Sollows v Key First Nation, 2018 SKQB 217

• Date: July 18, 2019

Reported as: 2018 SKQB 217

Docket Number: QBG 202/18 JCS , QB18217

Court: Court of Queen's Bench

Date: 2019-07-18

Judges:

• Rothery

Subjects:

• Civil Procedure � Default Judgment � Application to Set Aside
• Civil Procedure � Queen�s Bench Rules, Rule 10-13

Digest: The plaintiff obtained a default judgment against the defendant, The Key First Nation, in the amount of $102,700 plus costs. The plaintiff had provided architectural services to the defendant. Counsel for the plaintiff sent a letter to the Chief in December 2017 demanding payment and further particulars were provided to him later in the month and again in early January 2018. On February 15, 2018 the plaintiff�s statement of claim was served on a band councillor. After service and following a telephone conversation between counsel and the Chief, further particulars were provided to him and he was warned of the pending deadline to defend the action. The plaintiff noted the defendant for default on March 14, 2018 and took out default judgment on March 15. On March 21, counsel for the plaintiff received a letter from the defendant�s law firm, advising that they had been retained to represent it and requesting that the action not be noted for default without reasonable notice. They were advised on March 22 by letter from the plaintiff�s counsel that such an undertaking could not be given because judgment had already been entered. In this application, the defendant adduced evidence regarding an application made to the Federal Court by some band members in November 2017 for an order setting aside the election of the chief and councillors conducted on October 1, 2016. On March 21, 2018, the court annulled the election and ordered a new election. The court referred specifically to the misconduct of the Chief and the councillor with whom the plaintiff had been involved. Between March 21 and June 12, when the new election was held, the plaintiff was without a chief and councilors. The new Chief deposed that the new council had first learned of the default judgment on June 22. When the plaintiff�s counsel was advised of same and refused to set aside the default judgment, the defendant applied to set aside the judgment pursuant to Queen�s Bench rule 10-13 and sought leave to file a defence. The grounds for the application were that the judgment entered was greater than the amount due and upon the merits.
HELD: The application was granted. The judgment was set aside...