Dow v. Liberty Mutual Insurance Co.

Dow v. Liberty Mutual Insurance Co.

The appellate court held that the registrar's function in granting regularly taken default judgments is ministerial and requires only proof of default, so the enhanced duty of full and frank disclosure applicable to ex parte judicial applications does not apply; therefore the chambers judge erred in awarding special costs for alleged non-disclosure and that order must be set aside and replaced with an order appropriate to the circumstances (each party to bear their own costs in the trial court where the particulars and set-aside applications were heard together), with the appellant entitled to usual costs of the appeal.

Citation
2002 BCCA 282
Parties
Appellant (plaintiff): Clara Dow; Respondent (defendant): Liberty Mutual Insurance Company; Respondent (defendant): James D'Gamma
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
25 April 2002
Procedural Posture
Civil Appeal (long Term Disability Insurance Claim; Enforcement of Policy Rights) / Appeal From Chambers Judge Decision on Application to Set Aside a Regularly Taken Default Judgment; Costs Issue
Outcome
Appeal allowed; order for special costs set aside; substituted order that each party bear their own costs of the proceedings in the trial court; appellant awarded costs of the appeal on the usual basis.
Legal Topics
Default Judgment, Setting Aside Default Judgment, Special Costs, Particulars, Frankness and Full Disclosure, Registrar Powers, Rule 65 (repealed)
Source Language
English
Civil Procedure Insurance Law Costs Professional Conduct Default Judgment Setting Aside Default Judgment Special Costs Particulars +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

Clara Dow

Appellant (plaintiff)

Liberty Mutual Insurance Company

Respondent (defendant)

James D'Gamma

Respondent (defendant)

Procedural Posture

Civil Appeal (long Term Disability Insurance Claim; Enforcement of Policy Rights) / Appeal From Chambers Judge Decision on Application to Set Aside a Regularly Taken Default Judgment; Costs Issue

Legal Issues

  1. 1 Whether a plaintiff applying for a default judgment to the registrar owes the same duty of full and frank disclosure as a party seeking ex parte judicial relief
  2. 2 Whether the chambers judge erred in awarding special costs for alleged non-disclosure in support of a default judgment application
  3. 3 Proper replacement order when special costs are set aside and related applications were heard together

Ratio Decidendi

The appellate court held that the registrar's function in granting regularly taken default judgments is ministerial and requires only proof of default, so the enhanced duty of full and frank disclosure applicable to ex parte judicial applications does not apply; therefore the chambers judge erred in awarding special costs for alleged non-disclosure and that order must be set aside and replaced with an order appropriate to the circumstances (each party to bear their own costs in the trial court where the particulars and set-aside applications were heard together), with the appellant entitled to usual costs of the appeal.

Court Disposition

Appeal allowed; order for special costs set aside; substituted order that each party bear their own costs of the proceedings in the trial court; appellant awarded costs of the appeal on the usual basis.

Orders

  • Order for special costs made by chambers judge set aside
  • Order that each party bear their own costs of the proceedings in the trial court