Wagner v. East Coast Paving Ltd.

Wagner v. East Coast Paving Ltd.

The adjudicator found the defendant appeared without unreasonable delay but failed to establish a reasonable excuse for not filing a defence beyond mere confusion or failure to read the Notice; therefore s.23(2)(a) was not satisfied and the application to set aside the quick judgment was dismissed, confirming the August 18, 2010 order, consistent with Mitchell.

Citation
2010 NSSM 63
Parties
Claimant/respondent: Troy and Tracy Wagner; Defendant/applicant: East Coast Paving Limited
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
28 October 2010
Procedural Posture
Small Claims Court / Application to Set Aside Quick Judgment (s.23(2)) Decision
Outcome
Application dismissed; original quick judgment of August 18, 2010 confirmed.
Legal Topics
Quick Judgment, Set Aside Default Judgment, Reasonable Excuse, Service of Claim, Default of Defence
Source Language
English
Civil Procedure Small Claims Court Judgment Enforcement Quick Judgment Set Aside Default Judgment Reasonable Excuse Service of Claim Default of Defence

Case Brief

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Parties

Troy and Tracy Wagner

Claimant/respondent

East Coast Paving Limited

Defendant/applicant

Procedural Posture

Small Claims Court / Application to Set Aside Quick Judgment (s.23(2)) Decision

Legal Issues

  1. 1 Whether the defendant had a reasonable excuse for failing to file a defence within the time required under s.23(2)(a) of the Small Claims Court Act
  2. 2 Whether the defendant appeared before the adjudicator without unreasonable delay after learning of the order under s.23(2)(b)
  3. 3 Whether Mitchell v. Rouvalis controls the analysis of 'reasonable excuse' in setting aside a quick judgment

Ratio Decidendi

The adjudicator found the defendant appeared without unreasonable delay but failed to establish a reasonable excuse for not filing a defence beyond mere confusion or failure to read the Notice; therefore s.23(2)(a) was not satisfied and the application to set aside the quick judgment was dismissed, confirming the August 18, 2010 order, consistent with Mitchell.

Court Disposition

Application dismissed; original quick judgment of August 18, 2010 confirmed.

Orders

  • Application pursuant to s.23 dismissed.
  • Original order of August 18, 2010 confirmed.