Canada Case Law

Portnov v. Alexander Holburn Beaudin + Lang LLP

Court

British Columbia Court of Appeal

The applicant failed to demonstrate that Justice Edelmann committed an error of law, principle, or misconceived the facts in applying the Davies factors; given the conceded tardiness of the applicant's intention to appeal, lack of notice to respondents, neutral prejudice, and that the underlying claim had been struck as meritless, it was not in the interests of justice to extend the time to appeal, so the variation application must be dismissed.

Source excerpt

• Extension of time to appeal
• Default judgment
• Service of process
• Strike under pleading rules

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4 Noses Brewing Company, LLC v. Specific Engineering Solutions Ltd.

Court

Supreme Court of British Columbia

The default judgment was set aside because the defendant's failure to file a response was not shown to be wilful or deliberate, the defendant applied promptly after learning of the judgment, the defendant advanced defences worthy of investigation (reliance on the Sales Order limited warranty, challenge to the validity/authority behind the 2024 Agreement, and a limitation-period defence), and the late affidavit was properly admitted as relevant and not prejudicial; setting aside the default judgment best serves the interests of justice.

Source excerpt

• Default judgment
• Setting aside default judgment
• Miracle feeds test
• Admission of late affidavits
• Limitation defence
• Limited warranty interpretation

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Valley Traffic Systems Inc. v. Hanna

Court

Supreme Court of British Columbia

Because the trial judge found and the Court of Appeal upheld that the three defendants engaged in a common design, hid payments behind a sham profit‑sharing agreement, and were equally complicit in a coordinated, malicious defamation campaign, there is no basis to differentiate their degrees of fault; accordingly Hanna must contribute and indemnify one third of the amounts paid (equal apportionment).

Source excerpt

• Common design
• Apportionment of liability
• Default judgment
• Assessment of damages
• Indemnity and contribution
• Aggravated and punitive damages

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Island Insurance Agency Ltd. v. Imraj S. Gill Law Corporation

Court

Supreme Court of British Columbia

The Provincial Court judge misapprehended and conflated two separate text-message threads (one concerning the Mercedes and one concerning the Range Rover), relied on that misunderstanding as a factual basis to find a prima facie case and that the defendant had no meritorious defence; that misapprehension rendered the Decision unreasonable under Vavilov, and on review the court concluded the petitioner established a defence at least worthy of investigation and therefore granted the application to set aside the default order and awarded costs to the petitioner.

Source excerpt

• Default judgment
• Setting aside default
• Meritorious defence
• Reasonableness review
• Small claims procedure
• Agency and authority

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British Columbia (Director of Civil Forfeiture) v. Jin

Court

Supreme Court of British Columbia

The court exercised its discretion to treat Wei's appeal-proceeding evidence as a Rule 4-7 application, found on the balance of probabilities that the application materials did not come to Wei's attention, and accordingly set aside both the Strike Order and the Default Order under Rule 4-7(1) on terms (conditional relief) while granting an extension of time to appeal; the court limited the scope of the de novo appeal and refused to admit new evidence for issues that should have been raised by set-aside application but accepted and considered the Rule 4-7 material.

Source excerpt

• Service of process
• Default judgment
• Striking pleadings
• Extension of time to appeal
• Fresh evidence on appeal
• Rule 4-7 applications

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Bank of Montreal v. Makhija

Court

Court of Appeal for Ontario

The Court of Appeal for Ontario dismissed the Bank of Montreal’s appeal from the dismissal of its civil fraud claim against Makhija.

• Fraudulent misrepresentation
• Recklessness
• Personal guarantee
• Default judgment
• Reliance
• Adequacy of reasons

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Canada (Ship-Source Oil Pollution Fund) v. Charlotte A. Finn (Ship)

Court

Federal Court

The Federal Court granted default judgment for the Ship-Source Oil Pollution Fund against Daniel Francis MacNeil, awarding $1,680,793.74 plus ongoing statutory interest.

• Default judgment
• Owner liability for oil pollution
• Subrogation
• Statutory interest
• In rem jurisdiction
• Sister-ship arrest

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Horwood v. Hanna

Court

Supreme Court of British Columbia

The application is dismissed because the plaintiff offered no evidence tracing the alleged misapplied profits into the Evergreen Property and relied on deemed admissions that bind only the defaulting defendants, not competing third-party creditors; proprietary relief should have been pursued in an action joining all owners and chargeholders and cannot be imposed on the existing record.

Source excerpt

• Constructive trust
• Substantive vs remedial trust
• Deemed admissions
• Tracing of misapplied funds
• Priority of creditors
• Default judgment

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Marida Holdings Ltd. v. Wang

Court

British Columbia Court of Appeal

The Court held that the substitutional service order granted by the chambers judge conferred standing on the respondent to apply under R.22-1(3); the chambers judge correctly applied the three Ibrahim factors and reasonably found the respondent was not guilty of willful delay or default, so there was no palpable and overriding error of fact or legal error in setting aside the damages assessment and default judgment (the default judgment was properly set aside under R.3-8(11)).

Source excerpt

• Default judgment
• Damages assessment
• Substitutional service
• Service of process
• Set aside under r.22-1(3)
• Set aside under r.3-8(11)

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Amex Bank of Canada v. DaCosta

Court

Court of Appeal for Ontario

The Ontario Court of Appeal dismissed an appeal from the refusal to set aside a default judgment, finding no reversible error in the motion judge’s application of Mountain View.

• Default judgment
• Setting aside judgment
• Procedural law
• Credit card debt
• Costs
• Default-judgment

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