Defendant Learns That Once Noted In Default, It Can Be Hard To Change Course feature image

Defendant Learns That Once Noted In Default, It Can Be Hard To Change Course

Civil litigation, whether it’s being brought against you as an individual or against a business you own, can be a stressful thing to deal with, including financial expenses and time that must be spent on the matter. However, no matter how difficult it may be to navigate the process, it is incredibly important to follow the process and meet timelines. A failure to do so could result in a defendant being noted in default, which means the litigation can proceed without the defendant’s involvement. This was well illustrated in a recent decision from the Court of Appeal of Alberta.

Election leads to lawsuit

The legal issues began when the respondents (“RQ”) and the Fort McKay Méttis Community Association (“the Association”) sue the appellant, “CM”. RQ had been president of the Association, and CM was running against her in an election.

The respondents sued the appellant for defamation following the publication of material on Facebook. A video posted to the social media website included an elder who said she was dissatisfied with transactions respecting her housing. The Association had received funding to approve housing, but it could only be applied to property owned by the Association, and not to property owned by individuals. The Association had agreed to purchase the elder’s home for $35,000 and then spent $172,000 to renovate it. The appellant posted the elder’s grievances with the process and then said she had been “swindled by Fort McKay community Association”

The appellant was also accused of alleging that RQ had engaged in election irregularities, including improper payments to influence voting, and that ineligible people had been able to vote. Finally, the appellant was also accused of suggesting that a sexual assault had been “covered up” by the Association and that the complainant had been paid $10,000 to “keep her mouth shut.”

The appellant does not respond to litigation

Counsel for the respondents wrote a “cease and desist” letter to the appellant and the elder on September 6, 2018. However, the appellant did not change her behaviour and posted further messages indicating she was ready to take the matter to court.

A statement of claim was issued against the appellant on September 10, 2018, and was served either that day or the next. The appellant acknowledged receiving it and said she understood she had 20 days to respond. The appellant was contacted by the respondents’ lawyers on September 28, reminding her she had two days to respond, but agreed to hold off on noting her in default until October 5. However, she was told that if she did not respond, she would be noted in default and the proceedings would continue without her.

The appellant did not respond and was noted in default on October 11, 2018. The appellant retained legal counsel on November 2, and brought an application to open up the noting in default.

Can a noting in default be opened up?

There are three criteria that must be met in order to open up a noting in default. They were reviewed in a 2019 decision from the same court, and state there must be,

“(a) an arguable defence;

(b) that the defendant did not intend to allow the judgment to go by default and offers some reasonable excuse for the default such as illness or a solicitor’s inadvertence; and,

(c) that once the noting in default came to the defendant’s attention, they promptly applied to set it aside.”

At the original trial, the chambers judge was satisfied that the third criteria was met, but that the appellant had not given a satisfactory explanation of why she allowed herself to be noted in default. The appellant was also not able to produce any evidence to demonstrate that she was not guilty of the allegations. As a result, the court agreed with the chambers judge in finding that the appellant had not satisfied the criteria needed to open up the default.

If you would like to proactively address a potential dispute, contact or civil litigation lawyers online or call 1-800-480-3534 to make an appointment. We advise clients in Calgary, throughout the province of Alberta, and across Western Canada.



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