Mullick v. International Exteriors (Atla) Ltd.

Mullick v. International Exteriors (Atla) Ltd.

Adjudicator set aside the Quick Judgment because the Defendants demonstrated a reasonable excuse for not filing a defence (documented attempts to communicate, involvement of insurer and retention of counsel), they appeared without unreasonable delay after learning of the order, and there existed a low‑threshold arguable defence (non‑negligence and excluded peril/warranty issues). Therefore the s.23(2) criteria were met and the Quick Judgment was set aside and the claim remitted for hearing.

Citation
2010 NSSM 9
Parties
Respondent/claimant: Samina Mullick; Applicant/defendant: International Exteriors [Atla] Ltd.; Applicant/defendant: Fin-All Roofing Ltd.
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
26 February 2010
Procedural Posture
Small Claims Court Set Aside Quick Judgment / Decision on Application to Set Aside Quick Judgment
Outcome
Quick Judgment Order dated August 27, 2009 (issued August 28, 2009) set aside
Legal Topics
Setting Aside Default/quick Judgment, Small Claims Court Act S.23(2), Regulation 14 and Form 6, Reasonable Excuse for Failure to Defend, Delay and Promptness, Threshold for Arguable Defence
Source Language
English
Civil Procedure Small Claims Contract Insurance Law Setting Aside Default/quick Judgment Small Claims Court Act S.23(2) Regulation 14 and Form 6 Reasonable Excuse for Failure to Defend +2 more

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Parties

Samina Mullick

Respondent/claimant

International Exteriors [Atla] Ltd.

Applicant/defendant

Fin-All Roofing Ltd.

Applicant/defendant

Procedural Posture

Small Claims Court Set Aside Quick Judgment / Decision on Application to Set Aside Quick Judgment

Legal Issues

  1. 1 Whether the Quick Judgment should be set aside under s.23(2) of the Small Claims Court Act
  2. 2 Whether the Defendants had a reasonable excuse for failing to file a defence within the required time
  3. 3 Whether the Defendants appeared without unreasonable delay after learning of the order

Ratio Decidendi

Adjudicator set aside the Quick Judgment because the Defendants demonstrated a reasonable excuse for not filing a defence (documented attempts to communicate, involvement of insurer and retention of counsel), they appeared without unreasonable delay after learning of the order, and there existed a low‑threshold arguable defence (non‑negligence and excluded peril/warranty issues). Therefore the s.23(2) criteria were met and the Quick Judgment was set aside and the claim remitted for hearing.

Court Disposition

Quick Judgment Order dated August 27, 2009 (issued August 28, 2009) set aside

Orders

  • Order in claim No. 313682 dated August 27, 2009 and issued August 28, 2009 is set aside
  • Claimant to contact the Small Claims Court clerk in Halifax to schedule a hearing date