T.W.B. Construction Ltd. v. Jago Oilfield Services Ltd. et al., 2009 SKQB 281

• Judge: Chicoine, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 06, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 281;(2009), 336 Sask.R. 265 (QB)

TWB Constr. v. Jago Oilfield (2009), 336 Sask.R. 265 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.073

T.W.B. Construction Ltd. (plaintiff/respondent) v. Jago Oilfield Services Ltd. and Larry Saik (defendants/applicants)

(2005 QBG No. 763; 2009 SKQB 281)

Indexed As: T.W.B. Construction Ltd. v. Jago Oilfield Services Ltd. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Chicoine, J.

July 6, 2009.

Summary:

The defendants applied to set aside a default judgment obtained by the plaintiff.

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

Practice - Topic 6199

Judgments and orders - Setting aside default judgments - Delay in applying - The defendants applied to set aside a default judgment obtained by the plaintiff - The plaintiff resisted, citing a 30 month delay from when the judgment was issued to when the application was made to set it aside - The defendant claimed that the delay was because his lawyer defaulted on his professional obligations - The Saskatchewan Court of Queen's Bench allowed the application - The court referred to cases which established that where noting for default for failure to defend was as a result of the negligence or incapacity of the defendant's lawyer, the delay could be excused so long as the other requirements for setting aside default judgment were met - Here, the defendants established that they had an arguable defence on the merits - Further, the plaintiff would not suffer irreparable harm as it could still prosecute it's claim - The delay was not wilful, but because the defendants had relied on their lawyer to look after the matter - The court noted also that part of the delay was caused by the plaintiff's solicitor not notifying the defendants' solicitor or the defendants as soon as possible that he had issued default judgment and by not serving a copy of the judgment upon the defendants - See paragraphs 17 to 39.

Cases Noticed:

Klein v. Schile, [1921] 2 W.W.R. 78 (Sask. C.A.), refd to. [para. 15].

Hamel v. Chelle (1964), 48 W.W.R.(N.S.) 117 (Sask. C.A.), refd to. [para. 16].

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. 16].

Kilbach v. McCredie Estate (1986), 49 Sask.R. 179 (C.A.), refd to. [para. 16].

First City Capital Ltd. v. Abramson Enterprises Ltd. and Abramson (1988), 68 Sask.R. 281 (C.A.), refd to. [para. 16].

Duffus v. White Estate (2006), 279 Sask.R. 35; 372 W.A.C. 35 (C.A.), refd to. [para. 16].

Carlea Alfalfa Processors Partnership v. Dorssers Inc. (1993), 109 Sask.R. 314; 42 W.A.C. 314 (C.A.), refd to. [para. 25].

Fleet Street Enterprises Inc. v. 3889581 Manitoba Ltd., [2003] Sask.R. Uned. 54 (Q.B.), refd to. [para. 26].

Counsel:

Miguel F. Martinez, for the applicant;

Mark H. Hawkins, for the respondent.

This application was heard before Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on July 6, 2009.