Klepsch v. 2 Hearts Personal Care Ltd. et al., 2012 SKCA 26

• Judge: Jackson, Richards and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 28, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 26;(2012), 385 Sask.R. 261 (CA)

Klepsch v. 2 Hearts Personal Care Ltd. (2012), 385 Sask.R. 261 (CA);

    536 W.A.C. 261

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MR.034

2 Hearts Personal Care Ltd. and Sandra McMain (formerly, Sandra Donais) (appellants) v. Elsie Klepsch (respondent)

(CACV2193; 2012 SKCA 26)

Indexed As: Klepsch v. 2 Hearts Personal Care Ltd. et al.

Saskatchewan Court of Appeal

Jackson, Richards and Caldwell, JJ.A.

March 7, 2012.

Summary:

The defendants were noted in default for failing to serve and file a statement of defence. They applied under rule 114(3) of the Queen's Bench Rules to set aside the noting in default.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2011), 387 Sask.R. 132, dismissed the application. Under rule 18, the court validated the irregular service of the amended statement of claim. The defendants appealed from the dismissal of their application to set aside the noting in default and from the validation of service.

The Saskatchewan Court of Appeal allowed the appeal in part. The noting in default was set aside. The defendants had leave to serve and file their statement of defence within 10 days. There was no reason to disturb the validation of service.

Practice - Topic 6201

Judgments and orders - Setting aside default judgments (incl. noting in default) - Requirement of reasonable excuse for default - In January 2011, the plaintiff sent a letter to the corporate defendant requesting compensation for a personal injury - The letter was referred to the corporate defendant's insurer, whose adjuster corresponded with the plaintiff - In March 2011, the individual defendant acknowledged service of a statement of claim by the plaintiff - In April 2011, an employee of the corporate defendant acknowledged service of an amended statement of claim - In June 2011, both defendants were noted in default for failing to serve and file a statement of defence - The defendants' application under rule 114(3) of the Queen's Bench Rules to set aside the noting in default was dismissed on the basis that the individual defendant's explanation that she had not understood what the statement of claim and the amended statement of claim meant was not a reasonable excuse for the default - The Saskatchewan Court of Appeal allowed the defendants' appeal - The chambers judge erred in failing to consider the second of the two explanations by the defendants, which was that they expected that their insurer was aware of the statements of claim and was handling them - While the defendants' bare reliance on this expectation was arguably negligent, it was a "satisfactory explanation" for the failure to respond to the statement of claim - The noting in default was set aside - The defendants had leave to serve and file their statement of defence within 10 days.

Cases Noticed:

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. 4].

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

Ballentyne et al. v. Benard (2012), 385 Sask.R. 280; 536 W.A.C. 280; 2012 SKCA 23, refd to. [para. 4].

Counsel:

Paul J. Harasen, for the appellants;

Wei Wu, for the respondent.

This appeal was heard and determined orally on February 28, 2012, by Jackson, Richards and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. On March 7, 2012, Caldwell, J.A., delivered the following written reasons for judgment for the court.