Applications to Cancel Default Judgment

According to the BC Supreme Court Civil Rules, it is relatively simple to obtain a default judgement. In instances where a defendant has failed to respond to the plaintiff’s claim by filing the relevant documentation within the time limit, a plaintiff can apply for a default order.

Should the plaintiff succeed in their request for a default judgement, the defendant can apply to have it set aside.

There are two grounds on which the defendant can apply to cancel a default judgement, namely:

  • where the plaintiff followed all the correct procedures in obtaining the default judgement, but the defendant wishes the Court to apply discretion on the matter and set the judgement aside, or
  • where the default judgement was obtained irregularly. For example, the defendant did not receive the Notice of Civil Claim and the default judgement was issued without the defendant having an opportunity to have their case heard.

There is a test that the Courts can employ to determine whether or not it is in the interest of justice to have the default judgement set aside.

Setting Aside a Default Judgement: The Test

Originally established by Mr. Justice Hinds in Miracle Feeds v. D & H Enterprises Ltd. [1979] B.C.J 1965, the test to set aside a default judgement includes establishing the following three factors:

  • Did the defendant willfully or deliberately fail to file a defense to the plaintiff’s claim or fail to appear in court?
  • Was the application to set aside the default judgement made as soon as reasonably possible after obtaining knowledge of it? Or is there a reasonable explanation for the delay in applying to set the default judgement aside?
  • Does the defendant have a legitimate defense to the plaintiff’s claim?

Mr. Justice Hinds placed emphasis on the fact that the test was not developed to be rigid. Instead, he mentioned that the Court must exercise its discretion in deciding how much weight to give each factor on the list in light of the defendant’s explanation.

For example, if a defendant has a strong-enough defense to the plaintiff’s claim, that may be enough to persuade a court to set aside the default judgment despite not satisfying all three of the aforementioned factors.

Setting Aside a Default Judgement that was Obtained Irregularly

Where a default judgement was irregularly obtained, the circumstances are slightly different to those in the previous scenario because it becomes a case of failure to achieve natural justice.

In the case of Bache Halsey Stuart Shields Inc. v. Charles Estate [1982] B.C.J. 1757, Mr. Justice Spencer suggested a different approach in situations where the defendant was unable to present their case.

According to Mr. Justice Spencer, not only is the failure to give notice considered an irregularity in relation to the Supreme Court of BC Civil Rules, but the failure is “contrary to the rules of natural justice” because the defendant was “deprived of his right to be heard.” The default judgement in this case was declared a nullity as a result of the failure to achieve natural justice.

In a similar case, Paolucci Holdings Ltd. v. Girard Insurance & Financial Services Inc., 2018 BCSC 1810, it was noted that a default judgement is an extraordinary remedy, and that proof of service is at the center of granting an application for default judgement.

If the Notice of Civil Claim was never delivered to the defendant, then the defendant is entitled to have it set aside.

Key Takeaways

A default judgement is a type of judgment that is issued without the defendant present. Should the defendant have justified reasons for not attending the court hearing or filing a response to the plaintiff’s claim, they can apply to have the default judgement set aside.

For those looking to set aside default judgments in the British Columbia Courts, there are two options. One is by proving that you were not informed of the plaintiff’s claim. The other option is seeking relief from the court on the grounds of a reasonable defense and legitimate reason for failing to respond to the plaintiff’s claim.

On the other hand, if you are the plaintiff in an action and were granted a default judgement and are looking for legal advice on the next steps, it may be helpful to speak with a lawyer to see if the defendant has any grounds for having it set aside.

It can be difficult navigating through these issues, which is why our team at Solimano Law is ready and able to assist. Contact us today for advice on setting aside a default judgement.

Disclaimer – The information contained herein is of a general nature. It is not intended to be legal advice and it is not intended to address the exact circumstances of any particular individual or entity. No one should rely on or act upon such information without receiving appropriate professional advice and without a thorough examination of their particular situation. Please contact our office if you have any questions with respect to the content of this entry, this website, or our Terms and Conditions .