Canada Case Law

Crazy Greek Chick Foods Limited v. Chakroborty

Court

British Columbia Court of Appeal

The appeal is dismissed because the chambers judge did not misapply the Miracle Feeds test, reasonably accepted the respondent's affidavit as disclosing a defence worthy of investigation given the oral contract and disputed facts, and there was no reasonable apprehension of bias; no palpable and overriding error warranted appellate intervention.

Source excerpt

• Setting aside default judgment
• Meritorious defence
• Procedural fairness
• Reasonable apprehension of bias
• Extension of time
• Miracle feeds test

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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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Community Trust Company v. He

Court

Court of Appeal for Ontario

The Court of Appeal for Ontario dismissed an appeal from an order refusing to set aside a default judgment in a mortgage enforcement case.

• Setting aside default judgment
• Zeifman test
• Mortgage enforcement
• Contractual interest rates
• Commercial reasonableness
• Default-judgment

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Dhunna v. Brown

Court

Supreme Court of British Columbia

Although the defendant engaged in severe delay and failed to take steps promptly to set aside the default judgment, he did not wilfully fail to defend and he demonstrated defences worthy of investigation (including disputed waiver of conditions and mitigation arguments); balancing prejudice and the administration of justice, the interests of justice required setting aside the default judgment and, consequently, the damages order, and permitting the defendant to file a response within 30 days.

Source excerpt

• Setting aside default judgment
• Damages assessment
• Specific performance claim
• Mitigation of damages
• Application timing and delay

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1238915 Ontario Limited v. Ferri

Court

Court of Appeal for Ontario

The Court of Appeal dismissed an appeal from the dismissal of motions to set aside a default judgment and to challenge authority to act, upholding costs.

• Setting aside default judgment
• Rule 19.08
• Rule 59.06
• Promptness and diligence
• Striking pleadings
• Prejudice to administration of justice

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Mehta v. Lally

Court

Supreme Court of British Columbia

The application to set aside the Hughes Order was dismissed because the defendant was guilty of wilful default in not attending or taking protective steps, the application was timely but the defendant failed to demonstrate a meritorious defence or provide evidence countering allegations of forged documents and non-compliance, and allowing the order to be set aside would prejudice the plaintiffs; therefore the strike order and consequential default judgment remain intact.

Source excerpt

• Setting aside default judgment
• Rule 22-7 enforcement
• Trial management conference compliance
• Service of orders
• Wilful default

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Nadirova v. Nadirov

Court

Supreme Court of British Columbia

On the evidence the respondent was not personally served on July 25, 2023; because service was not established the respondent could not be said to have wilfully or deliberately failed to respond, he moved promptly after learning of the final order, and he demonstrated a meritorious defence; therefore in the interests of justice the final order of February 5, 2025 is set aside, the respondent is permitted to file a response, an interim without prejudice child support order of $251 per month is granted commencing February 1, 2026, and costs for the summary trial and the present application are…

Source excerpt

• Service of process
• Setting aside default judgment
• Child support
• Guardianship
• Interim relief
• Costs

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Crazy Greek Chick Food Limited v. Chakroborty

Court

British Columbia Court of Appeal

Strike the impugned portions of the appellants' factum and refuse the fresh evidence because the maintenance allegation is a new issue not raised below, the existing evidentiary record (and the proffered affidavit) is insufficient to adjudicate that novel issue, and the interests of justice do not permit the Court to decide it for the first time on appeal; consequently the fresh evidence primarily relating to that new issue is inadmissible.

Source excerpt

• Fresh evidence
• Striking factum
• Maintenance (abuse of process)
• Setting aside default judgment
• Indemnifier intervention
• Lawyers indemnity fund

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1163499 B.C. Ltd. v. Yao

Court

British Columbia Court of Appeal

The Court of Appeal dismissed the appeal, holding that ordinary service was sufficient, the Miracle Feeds test applied, and no reversible error was shown.

• Setting aside default judgment
• Miracle feeds test
• Reconsideration under rule 22-1(3)
• Ordinary service vs actual notice
• Inherent jurisdiction to set aside judgments
• Standard of review (palpable and overriding error)

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1194432 B.C. Ltd. v. Gram Canada Investment Ltd.

Court

Supreme Court of British Columbia

The court set aside default judgments against all defendants, finding no wilful default, a defence worthy of investigation, and that justice favoured a merits hearing.

• Setting aside default judgment
• Service of process
• Alternative service
• Meritorious defence
• Cancellation of registered charges
• Default-judgment

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