Canada Judgment

Supreme Court of British Columbia

Stadnyk v. Allen

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Source document

01

Holding and result

Motion to set aside the default judgment granted because the defendant's failure to respond was not wilful, he acted promptly upon learning of garnishment, delay was attributable to counsel communications rather than the defendant, and there is a potentially meritorious defence warranting trial under the Miracle Feeds test.

Court disposition

Default judgment set aside; motion granted

Orders

  • Motion to set aside default judgment granted
  • Default judgment set aside
  • Costs in the cause

02

Material facts

Parties

Andrei Stadnyk

Plaintiff Counsel: Ms. J. Basra

Richard Allen

Defendant Counsel: Ms. L. Ridgedale

03

Procedural history

  1. Posture

    Civil / Motion to Set Aside Default Judgment (oral Reasons)

04

Questions and positions

Legal issues

Party arguments

Applicant
Defendant argued he did not realize he had been validly served, his failure to respond was not wilful, he acted promptly once he learned his wages were being garnished, any delay was attributable to counsel communications, and there is a defence worthy of investigation based on inconsistent witness evidence.
Respondent
Plaintiff opposed the application and implicitly contended the default judgment should stand as service was effective and the defendant's failure to defend should not be excused (argued prejudice of enforcement if set aside).

05

Court’s reasoning

  1. 01

    Case law applying Miracle Feeds test

    Requirement that explanation for failure to defend be credible and non-wilful to justify setting aside judgment

  2. 02

    Rules of Court / case law

    Service and substitutional service principles govern whether defendant was properly notified; garnishment enforcement permits post-judgment remedies that can trigger prompt response obligations

06

Ratio, limits and disposition

Ratio decidendi

Motion to set aside the default judgment granted because the defendant's failure to respond was not wilful, he acted promptly upon learning of garnishment, delay was attributable to counsel communications rather than the defendant, and there is a potentially meritorious defence warranting trial under the Miracle Feeds test.

Obiter and limits

  • Case distinguished from those where substitutional service produced implausible explanations for failure to defend
  • Possible administrative mistake or inadvertent receipt of materials may explain lack of response
  • Credibility of witnesses and inconsistencies in prior criminal proceedings suggest issues best resolved at trial
  • Costs awarded in the cause

Court disposition

Default judgment set aside; motion granted

  • Motion to set aside default judgment granted
  • Default judgment set aside
  • Costs in the cause

Source and reliance status

Supreme Court of British Columbia · 23 July 2003

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Judgment reading view

Judgment text

The complete available source text.

Source document

Supreme Court of British Columbia

Judgment· 23 July 2003

2003 BCSC 2008

2003 BCSC 2008 Stadnyk v. Allen Citation: Stadnyk v. Allen Date: 20030723 2003 BCSC 2008 Docket: S024812 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment Madam Justice B. Brown July 23, 2003 BETWEEN:

ANDREI STADNYK

PLAINTIFF AND:

RICHARD ALLEN

DEFENDANT Counsel for the Plaintiff Ms. J. Basra Counsel for the Defendant Ms. L. Ridgedale [1] THE COURT: I am satisfied that the judgment should be set aside. Counsel are clearly of agreement that the four tests in Miracle Feeds are those that apply in this case. [2] Dealing firstly with wilful failure to respond to the writ and statement of claim. I am satisfied with the explanation provided by Mr. Allen that, had he realized that he had been served, he would have responded. Certainly in the circumstances of this case where he had already been through a criminal trial, where he anticipated civil proceedings and was awaiting them, I cannot understand why, had he known that he had been served, he wouldn't have responded. That's consistent with his immediate action once he received the notice that his wages had been garnished. [3] This case is distinguishable from other cases in which the parties have had to be substitutionally served and have come in with explanations for failing to defend that aren't credible. In this particular case it is highly likely that Mr. Allen would have responded had he realized that he was served. There are other possible explanations. There may have been a mistake. Someone may have identified himself as Allen and received the materials. That being so I am satisfied that the failure to respond was not wilful. [4] Second test, whether Mr. Allen

responded as soon as reasonably possible. Immediately after he received notice that his wages had been garnished, he sought legal advice. Any delay thereafter seems to have been as a result of communications between counsel. I am satisfied that whatever delay arose from counsel's difficulties should not be laid at the feet of Mr. Allen. [5] With respect to the merit of his defence it appears that there is at least a defence worthy of investigation here. I have looked through the reasons of the judge in the criminal proceedings and it seems that there was at least some lack of consistency amongst the evidence of the witnesses. Some of them clearly support Mr. Allen in what he says happened. Some seem to support Mr. Stadnyk in what he says happened. It will be a question of credibility at the trial itself, but there is a defence that is at least worthy of investigation. The materials have been put before me by way of affidavit and I will grant the motion. [6] Costs in the cause. "B. Brown, J." The Honourable Madam Justice B. Brown

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Miracle Feeds (four-factor test)

Case cited

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