Deline v. Whittle

Deline v. Whittle

The application to vary the single justice's order was dismissed because the chambers judge correctly applied the Miracle Feeds test and properly exercised his discretion under the Rules of Court: the defendant's failure to file a statement of defence was excusable in context, a meritorious defence was demonstrated (including truth as a defence to libel), the application to set aside was prompt and supported by affidavit, and the proposed appeal lacked sufficient merit or public importance to warrant leave.

Citation
2002 BCCA 662
Parties
Appellant (plaintiff): Toni E. Deline; Respondent (defendant): Vernon Norman Whittle
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
28 November 2002
Procedural Posture
Civil / Application to Vary Single Justice Order Denying Leave to Appeal (s.9 Court of Appeal Act)
Outcome
Application dismissed; leave to appeal refused; review dismissed
Legal Topics
Default Judgment, Setting Aside Default Judgment, Leave to Appeal, Miracle Feeds Test, Stay of Proceedings, Arbitration Clause
Source Language
English
Civil Procedure Defamation Arbitration Contract Appeal Default Judgment Setting Aside Default Judgment Leave to Appeal +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 5 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Toni E. Deline

Appellant (plaintiff)

Vernon Norman Whittle

Respondent (defendant)

Procedural Posture

Civil / Application to Vary Single Justice Order Denying Leave to Appeal (s.9 Court of Appeal Act)

Legal Issues

  1. 1 Whether the single justice should have declined to hear the leave application
  2. 2 Whether the Miracle Feeds four-part test for setting aside a default judgment was correctly applied
  3. 3 Whether the failure to file a statement of defence was wilful or excusable

Ratio Decidendi

The application to vary the single justice's order was dismissed because the chambers judge correctly applied the Miracle Feeds test and properly exercised his discretion under the Rules of Court: the defendant's failure to file a statement of defence was excusable in context, a meritorious defence was demonstrated (including truth as a defence to libel), the application to set aside was prompt and supported by affidavit, and the proposed appeal lacked sufficient merit or public importance to warrant leave.

Court Disposition

Application dismissed; leave to appeal refused; review dismissed

Orders

  • Application to vary order dismissed
  • Leave to appeal refused