Hubbard v. Acheson

Hubbard v. Acheson

The Provincial Court judge's refusal to set aside the default judgment was unreasonable because the petitioner provided a satisfactory explanation for non‑appearance (a genuine, mistaken belief that settlement negotiations obviated immediate response) and the written contract limiting liability to refund of deposits raised a defence worthy of investigation; therefore the matter must be remitted to Provincial Court for rehearing of the application, with the Judicial Review Procedure Act limiting this Court to remittal rather than vacating the default judgment.

Citation
2008 BCSC 970
Parties
Appellant/petitioner: Angela Hubbard dba Angela Hubbard Photography; Respondent: Deborah Acheson; Respondent: Clea Adair
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
24 July 2008
Procedural Posture
Judicial Review of Provincial Small Claims Court Decision / Application to Set Aside Default Judgment Remitted for Rehearing
Outcome
Matter remitted to Provincial Court to rehear the application to set aside the default judgment
Legal Topics
Default Judgment, Setting Aside Default Judgment, Limitation of Liability Clause, Standard of Review, Remedies Under Judicial Review Procedure Act
Source Language
English
Contract Law Civil Procedure Judicial Review Small Claims Default Judgment Setting Aside Default Judgment Limitation of Liability Clause Standard of Review +1 more

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Parties

Angela Hubbard dba Angela Hubbard Photography

Appellant/petitioner

Deborah Acheson

Respondent

Clea Adair

Respondent

Procedural Posture

Judicial Review of Provincial Small Claims Court Decision / Application to Set Aside Default Judgment Remitted for Rehearing

Legal Issues

  1. 1 Whether the default judgment should be set aside
  2. 2 Whether the applicant was guilty of wilful default for failing to file an appearance or defence
  3. 3 Whether the applicant established a defence worthy of investigation

Ratio Decidendi

The Provincial Court judge's refusal to set aside the default judgment was unreasonable because the petitioner provided a satisfactory explanation for non‑appearance (a genuine, mistaken belief that settlement negotiations obviated immediate response) and the written contract limiting liability to refund of deposits raised a defence worthy of investigation; therefore the matter must be remitted to Provincial Court for rehearing of the application, with the Judicial Review Procedure Act limiting this Court to remittal rather than vacating the default judgment.

Court Disposition

Matter remitted to Provincial Court to rehear the application to set aside the default judgment

Orders

  • Remit the March 18, 2008 Provincial Court decision to Provincial Court to rehear the application to set aside the default judgment
  • Costs of this judicial review to be awarded to the party who ultimately becomes entitled to costs in the small claims action