Gillis v. Innova Medical

Gillis v. Innova Medical

The adjudicator set aside the January 14, 2013 Order and stayed execution because the defendant, through counsel, provided a reasonable explanation for failure to file a defence or appear, acted without unreasonable delay by filing a defence and counterclaim, and allowing a rehearing served the purposes of the Small Claims Court more than enforcing the original Order.

Citation
2013 NSSM 9
Parties
Claimant: Kevin Gillis; Defendant: Innova Medical
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
18 February 2013
Procedural Posture
Small Claims Court / Application to Set Aside Order; Stay of Execution; Hearing Scheduled (pre Trial)
Outcome
Order dated January 14, 2013 set aside; execution order stayed; rehearing scheduled.
Legal Topics
Setting Aside Default Judgment, Failure to File Defence, Stay of Execution, Service of Process, Hearing Scheduling
Source Language
English
Civil Procedure Enforcement Small Claims Remedies Setting Aside Default Judgment Failure to File Defence Stay of Execution Service of Process +1 more

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Parties

Kevin Gillis

Claimant

Innova Medical

Defendant

Procedural Posture

Small Claims Court / Application to Set Aside Order; Stay of Execution; Hearing Scheduled (pre Trial)

Legal Issues

  1. 1 Whether an Order obtained after a hearing in which the defendant did not appear but had not filed a defence can be set aside
  2. 2 Whether the defendant had a reasonable excuse under s.23(2) of the Small Claims Court Act
  3. 3 Whether the execution of the Order should be stayed pending a rehearing

Ratio Decidendi

The adjudicator set aside the January 14, 2013 Order and stayed execution because the defendant, through counsel, provided a reasonable explanation for failure to file a defence or appear, acted without unreasonable delay by filing a defence and counterclaim, and allowing a rehearing served the purposes of the Small Claims Court more than enforcing the original Order.

Court Disposition

Order dated January 14, 2013 set aside; execution order stayed; rehearing scheduled.

Orders

  • The Order dated January 14, 2013 and issued January 17, 2013 in SCCH 409193 is set aside.
  • The hearing is scheduled for April 8 and April 9, 2013 at 6 PM at 5250 Spring Garden Rd., Halifax, Nova Scotia.