Logic Alliance Inc. v. Jentree Canada Inc., 2005 NSSC 2

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 16, 2004
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 2;(2005), 229 N.S.R.(2d) 127 (SC)

Logic Alliance Inc. v. Jentree Can. (2005), 229 N.S.R.(2d) 127 (SC);

 725 A.P.R. 127

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. JA.011

Logic Alliance Inc., formerly known as Pioneer Organics Inc. (plaintiff) v. Jentree Canada Inc. (defendant)

(S.K. 207258; 2005 NSSC 2)

Indexed As: Logic Alliance Inc. v. Jentree Canada Inc.

Nova Scotia Supreme Court

Warner, J.

January 10, 2005.

Summary:

The defendant applied under rule 12.06 to set aside a default judgment entered against it several months earlier on the grounds that (1) it had an arguable defence on the merits and a reasonable excuse for the delay in filing a defence and (2) the plaintiff failed to properly serve the originating notice as required by rule 10.03(1)(b).

The Nova Scotia Supreme Court held that the defendant established an arguable defence, but provided no reasonable excuse for the delay. However, absent due service, the court exercised its discretion to set aside the default judgment where doing so would not prejudice the plaintiff in proving its claim.

Practice - Topic 2516

Service - Personal service of writ, claim or notice - Affidavit of service - The defendant applied under rule 12.06 to set aside a default judgment entered against it several months earlier on the ground that the plaintiff failed to properly serve the originating notice as required by rule 10.03(1)(b) - The affidavit of service was a fill-in-the-blank form sworn by the process server before a commissioner on the date of service - It was not properly completed and was unintelligible - It was not clear who the process server actually served - The defendant had a copy of the pleadings in sufficient time to file a statement of defence - The Nova Scotia Supreme Court stated that "while there is merit and equity to the position that this court should accept that service has been effected upon the defendant when it is satisfied that the defendant received the pleadings in sufficient time to act on it, this does not appear to conform to the plain words of Civil Procedure Rule 10.03" - Notwithstanding actual notice, the deficient affidavit failed to prove due service on a person authorized to accept service on behalf of the defendant - While failure to prove service did not automatically entitle the defendant to have the default judgment set aside, the court exercised its discretion to set aside the default judgment where the plaintiff would not be prejudiced in proving its claim - See paragraphs 37 to 73.

Practice - Topic 2643

Service - Service - Generally - Valid service - What constitutes - [See Practice - Topic 2516 ].

Practice - Topic 6197

Judgments and orders - Setting aside default judgments - Grounds - The defendant applied under rule 12.06 to set aside a default judgment entered against it several months earlier on the ground that it had an arguable defence on the merits and a reasonable excuse for the delay in filing a defence - The Nova Scotia Supreme Court held that the defendant established an arguable defence, but provided no reasonable excuse for the delay - The court stated that the failure to file a defence on the ground that the defendant believed that the plaintiff's claim was unsustainable or that the plaintiff would go away were not reasonable excuses - There was no evidence that the failure to file a defence resulted from inadvertence or an inability or perceived inability to file a defence - See paragraphs 14 to 36.

Practice - Topic 6198

Judgments and orders - Setting aside default judgments - Affidavit of merits - [See Practice - Topic 6197 ].

Practice - Topic 6201

Judgments and orders - Setting aside default judgments - Requirement of reasonable excuse for default - [See Practice - Topic 6197 ].

Practice - Topic 6205

Judgments and orders - Setting aside default judgments - Costs - A defendant successfully applied to have a default judgment set aside on the ground that the plaintiff's pleadings were not properly served under rule 10.03, notwithstanding the defendant had knowledge of the action, and a copy of the pleadings, in sufficient time to file a defence - The Nova Scotia Supreme Court denied the successful defendant's request for costs - The application resulted from the defendant's failure to respond to an action it had knowledge of - Equity was not on the defendant's side and the plaintiff incurred expenses it should not have incurred because of the defendant's default - No costs were awarded to either party - However, if the plaintiff was successful at trial, the plaintiff should have additional costs for the additional steps taken between the entry of default judgment and the date of this application - See paragraph 75.

Cases Noticed:

Ives v. Dewar, [1949] 2 D.L.R. 204 (N.S.C.A.), refd to. [para. 3].

Widneyer v. Atlantic Pipe Resources Inc. (2000), 183 N.S.R.(2d) 164; 568 A.P.R. 164; 2000 NSCA 22, refd to. [para. 13].

Temple v. Riley (2001), 191 N.S.R.(2d) 87; 596 A.P.R. 87; 2001 NSCA 36, refd to. [para. 13].

Credit Union Atlantic Ltd. v. McAvoy (2002), 210 N.S.R.(2d) 207; 659 A.P.R. 207; 2002 NSCA 145, refd to. [para. 13].

Dunham-Thompson v. Mahone Bay (Town) et al. (1996), 154 N.S.R.(2d) 108; 452 A.P.R. 108 (S.C.), refd to. [para. 15].

Rayner (Mincing Lane) Ltd. v. Brazil, [1999] E.W.J. No. 4071 (C.A.), refd to. [para. 25].

Phillips v. Ensell (1834), 149 E.R. 1124, refd to. [para. 43].

Hope v. Hope (1854), 43 E.R. 534, refd to. [para. 43].

Vidito v. Veniot, 1912 CarswellNS 1 (S.C.), refd to. [para. 44].

Morozuk v. Fedorek, 1941 CarswellAlta 12 (C.A.), refd to. [para. 44].

Consiglio (No. 2), Re, 1971 CarswellOnt 755 (S.C. Master), refd to. [para. 44].

Rupertsland Mortgage Investments Ltd. v. Winnipeg (City) et al. (1981), 25 Man.R.(2d) 29; 1981 CarswellMan 46 (Co. Ct.), refd to. [para. 44].

Balla v. Fitch Research Corp., 2000 CarswellBC 1549 (C.A.), refd to. [para. 44].

Wilson v. Haftner, 1925 CarswellSask 34 (C.A.), refd to. [para. 45].

Jackson v. Newman, 1939 CarswellNS 22 (C.A.), refd to. [para. 44].

Canada Life Assurance Co. v. Canadian Imperial Bank of Commerce, 1974 CarswellOnt 887 (C.A.), refd to. [para. 45].

Irving (J.D.) Ltd. v. Omega Pipeline Ltd. (1977), 16 N.B.R.(2d) 474; 21 A.P.R. 474; 1977 CarswellNB 153 (Q.B.), refd to. [para. 45].

Walla v. Pomeroy (1978), 23 Nfld. & P.E.I.R. 361; 61 A.P.R. 361; 1978 CarswellNfld 127 (Nfld. Dist. Ct.), refd to. [para. 45].

Emigh et al. v. Diamond Messenger Services (Saskatoon) Ltd. (1987), 65 Sask.R. 264; 1987 CarswellSask 109 (Q.B.), refd to. [para. 45].

Ofume v. Vukelich et al. (2002), 200 N.S.R.(2d) 148; 627 A.P.R. 148; 2002 CarswellNS 9 (S.C.), refd to. [para. 49].

Shragge v. Rabinovitch, 1920 CarswellAlta 12 (C.A.), refd to. [para. 50].

Eli Lilly & Co. v. Makhteshim-Agan (America) Inc. et al. (1986), 5 F.T.R. 108 (T.D.), refd to. [para. 51].

Waverley (Village) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1993), 123 N.S.R.(2d) 46; 340 A.P.R. 46; 1993 CarswellNS 58 (S.C.), refd to. [para. 59].

Wall v. Horn Abbot Ltd. - see Wall v. 679927 Ontario Ltd. et al.

Wall v. 679927 Ontario Ltd. et al. (1999), 176 N.S.R.(2d) 96; 538 A.P.R. 96; 1999 CarswellNS 120 (C.A.), refd to. [para. 62].

Provincial Contracting Ltd. et al. v. Spence Aggregates Contracting Ltd., [1999] N.S.R.(2d) Uned. 70; 1999 CarswellNS 303 (C.A.), refd to. [para. 62].

Balders Estate v. Registrar of Probate for Halifax (County) (1999), 176 N.S.R.(2d) 262; 538 A.P.R. 262; 1999 CarswellNS 157 (S.C.), refd to. [para. 62].

Capel v. Downey (1971), 7 N.S.R.(2d) 30 (T.D.), refd to. [para. 65].

Kellogg Brown & Root Inc. v. Aerotech Herman Nelson Inc. et al. (2004), 188 Man.R.(2d) 304; 2004 CarswellMan 454 (Q.B. Master), refd to. [para. 75].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 10.03(1)(b) [para. 37].

Authors and Works Noticed:

C.E.D. - see Canadian Encyclopedic Digest.

Canadian Encyclopedic Digest (2004), Practice No. 83, generally [para. 44].

Counsel:

Peter D. Nathanson, for the plaintiff;

Janet M. Stevenson, for the defendant.

This application was heard on December 16, 2004, at Kentville, N.S., before Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 10, 2005.