D'Arcy v. McCarthy Roofing Ltd.

D'Arcy v. McCarthy Roofing Ltd.

Defendant failed to prove on a balance of probabilities a reasonable excuse for not filing a defence or appearing at the hearing; alternatively the adjudicator lacked jurisdiction to reconsider the December 8, 2014 order (functus officio); therefore the application to set aside is dismissed and the December 8, 2014 order is affirmed.

Citation
2015 NSSM 6
Parties
Claimant: Kim Ann D’Arcy; Defendant: McCarthy Roofing Limited
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
6 January 2015
Procedural Posture
Small Claims Court Claim / Application to Set Aside Order (post Judgment)
Outcome
Application to set aside dismissed; Order dated December 8, 2014 affirmed.
Legal Topics
Default Judgment, Set Aside, Service of Process, Reasonable Excuse, Jurisdiction, Quick Judgment
Source Language
English
Contract Civil Procedure Administrative Law Default Judgment Set Aside Service of Process Reasonable Excuse Jurisdiction +1 more

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Parties

Kim Ann D’Arcy

Claimant

McCarthy Roofing Limited

Defendant

Procedural Posture

Small Claims Court Claim / Application to Set Aside Order (post Judgment)

Legal Issues

  1. 1 Whether the defendant had a reasonable excuse for failing to file a defence
  2. 2 Whether the defendant appeared without unreasonable delay after learning of the order
  3. 3 Whether the adjudicator had jurisdiction under s.23 to set aside the December 8, 2014 order (functus officio issue)

Ratio Decidendi

Defendant failed to prove on a balance of probabilities a reasonable excuse for not filing a defence or appearing at the hearing; alternatively the adjudicator lacked jurisdiction to reconsider the December 8, 2014 order (functus officio); therefore the application to set aside is dismissed and the December 8, 2014 order is affirmed.

Court Disposition

Application to set aside dismissed; Order dated December 8, 2014 affirmed.

Orders

  • Defendant's application under Section 23 is dismissed and the Order of December 8, 2014 is affirmed.