Judy v. Olympic Motors Corp. (SK) 1, 2014 SKPC 201

• Judge: Demong, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: November 24, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 201;(2014), 459 Sask.R. 291 (PC)

Judy v. Olympic Motors Corp. (2014), 459 Sask.R. 291 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.011

James Judy and Christine Judy v. Olympic Motors Corporation (SK) 1

(89/14; 2014 SKPC 201)

Indexed As: Judy v. Olympic Motors Corp. (SK) 1

Saskatchewan Provincial Court

Civil Division

Demong, P.C.J.

November 24, 2014.

Summary:

The defendant failed to attend a case management conference. Default judgment was entered against the defendant under s. 7.1(9) of the Small Claims Act. Within days, the defendant applied under s. 37(1) of the Act to set the default judgment aside.

The Saskatchewan Provincial Court allowed the application. The default judgment was to be set aside once the defendant had paid the plaintiffs' costs incurred due to the defendant's failure to attend the case management conference ($317.62).

Courts - Topic 8155

Provincial courts - Saskatchewan - Small Claims - Judgments - Setting aside - The defendant failed to attend a case management conference - Default judgment was entered against the defendant under s. 7.1(9) of the Small Claims Act - Within days, the defendant applied under s. 37(1) of the Act to set the default judgment aside - The Saskatchewan Provincial Court allowed the application - Section 37(1) allowed the court to set aside a default judgment where the applicant had a "reasonable excuse" for not attending the case management conference and also had a valid defence to the claim - The defence raised triable issues and was not frivolous, vexatious or an abuse of the court's process - The excuse provided by the defendant's counsel was that he had entered the date into an electronic organizer that failed on that date - The reasonableness of an excuse was to be assessed on a case by case basis with regard to the context in which the litigation had progressed and the credibility of the applicant - The application was timely - There was "no attempt to side step the misfeasance" - There was no material hardship for the plaintiffs if the default judgment was set aside - The plaintiffs were not out of pocket monies that were due and owing - The default judgment was to be set aside once the defendant had paid the plaintiffs' costs incurred due to the defendant's failure to attend the case management conference ($317.62).

Practice - Topic 6197

Judgments and orders - Setting aside default judgments (incl. noting in default) - Grounds - [See Courts - Topic 8155 ].

Practice - Topic 9770

Small claims - Judgment - Setting aside - [See Courts - Topic 8155 ].

Cases Noticed:

Stealth Web Designs Inc. v. Wildman (2012), 397 Sask.R. 17; 2012 SKPC 73, refd to. [para. 15].

Honch v. Arcand, [2009] Sask.R. Uned. 50; 2009 SKPC 43, refd to. [para. 23].

Counsel:

James Judy and Christine Judy, for the respondents/plaintiffs;

Reginald Watson, Q.C., for the applicant/defendant.

This application was heard at Regina, Saskatchewan, by Demong, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on November 24, 2014.