Shaw v. 2557617 Nova Scotia Limited

Shaw v. 2557617 Nova Scotia Limited

The adjudicator has jurisdiction, under a purposive reading of s.2 of the Small Claims Court Act together with ss.23, to hear an application to set aside an order where a defendant neither filed a defence nor appeared; the appropriate test is a hybrid requiring (1) a reasonable excuse for not filing a defence, (2) a reasonable excuse for not appearing, and (3) that the defendant appeared without unreasonable delay after learning of the order. The defendant failed to show reasonable excuse or lack of delay; therefore the application to set aside is denied and the original order stands.

Citation
2021 NSSM 44
Parties
Claimant: Victoria Shaw; Defendant: 2557617 Nova Scotia Limited
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
12 May 2021
Procedural Posture
Small Claims Court Application to Set Aside Adjudicator's Order / Decision Following Telephone Conference Hearing on Application to Set Aside (may 5 and May 7, 2021; Decision Dated May 12, 2021)
Outcome
Application to set aside Adjudicator Thompson's May 17, 2019 Order is denied.
Legal Topics
Setting Aside Judgment, Default Judgment, Service of Claim, Reasonable Excuse, Delay, Jurisdiction, Natural Justice, Statutory Interpretation
Source Language
English
Civil Procedure Small Claims Court Administrative Law Contract/commercial Law Setting Aside Judgment Default Judgment Service of Claim Reasonable Excuse +4 more

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Parties

Victoria Shaw

Claimant

2557617 Nova Scotia Limited

Defendant

Procedural Posture

Small Claims Court Application to Set Aside Adjudicator's Order / Decision Following Telephone Conference Hearing on Application to Set Aside (may 5 and May 7, 2021; Decision Dated May 12, 2021)

Legal Issues

  1. 1 Whether the Small Claims Court has jurisdiction to set aside an adjudicator's order where the defendant neither filed a defence nor appeared at a hearing
  2. 2 What legal test applies to an application to set aside in that circumstance
  3. 3 Whether the defendant established a reasonable excuse for not filing a defence or not appearing and whether there was unreasonable delay

Ratio Decidendi

The adjudicator has jurisdiction, under a purposive reading of s.2 of the Small Claims Court Act together with ss.23, to hear an application to set aside an order where a defendant neither filed a defence nor appeared; the appropriate test is a hybrid requiring (1) a reasonable excuse for not filing a defence, (2) a reasonable excuse for not appearing, and (3) that the defendant appeared without unreasonable delay after learning of the order. The defendant failed to show reasonable excuse or lack of delay; therefore the application to set aside is denied and the original order stands.

Court Disposition

Application to set aside Adjudicator Thompson's May 17, 2019 Order is denied.

Orders

  • Application to set aside denied
  • Order of Adjudicator Thompson dated May 17, 2019 upheld