Consumer Impact Marketing v. Rzepus

Consumer Impact Marketing v. Rzepus

The application to set aside was denied because the defendant failed to demonstrate a reasonable excuse for not filing a defence (mere forwarding and internal loss/forgetting is insufficient) although the defendant did appear without unreasonable delay; the adjudicator has jurisdiction under s.23(2) to set aside where no defence was filed even if a hearing was held, but discretion to set aside was not exercised in these facts.

Citation
2003 NSSM 9
Parties
Defendant/applicant: Consumer Impact Marketing Limited; Claimant/respondent: Shelley Dawn Rzepus
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
24 September 2003
Procedural Posture
Small Claims Court — Wrongful Dismissal / Application to Set Aside Adjudicator's Order (post Judgment)
Outcome
Application to set aside denied; original July 15, 2003 order upheld
Legal Topics
Setting Aside Default Judgment, Service of Process, Reasonable Excuse for Failure to Defend, Wrongful Dismissal Damages
Source Language
English
Civil Procedure Employment Law Small Claims Court Setting Aside Default Judgment Service of Process Reasonable Excuse for Failure to Defend Wrongful Dismissal Damages

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Parties

Consumer Impact Marketing Limited

Defendant/applicant

Shelley Dawn Rzepus

Claimant/respondent

Procedural Posture

Small Claims Court — Wrongful Dismissal / Application to Set Aside Adjudicator's Order (post Judgment)

Legal Issues

  1. 1 Whether adjudicator has jurisdiction under s.23(2) to set aside an order where no defence was filed even though a hearing was held
  2. 2 Whether the defendant had a reasonable excuse for failing to file a defence within the time required
  3. 3 Whether the defendant appeared without unreasonable delay after learning of the order

Ratio Decidendi

The application to set aside was denied because the defendant failed to demonstrate a reasonable excuse for not filing a defence (mere forwarding and internal loss/forgetting is insufficient) although the defendant did appear without unreasonable delay; the adjudicator has jurisdiction under s.23(2) to set aside where no defence was filed even if a hearing was held, but discretion to set aside was not exercised in these facts.

Court Disposition

Application to set aside denied; original July 15, 2003 order upheld

Orders

  • Application to set aside Order dismissed
  • Order dated July 15, 2003 remains in effect