Botar v Braden Equities Inc, 2017 ABQB 21

Court of Queen’s Bench of Alberta Citation: Botar v Braden Equities Inc, 2017 ABQB 21 Date: 20170113 Docket: 1603 18620 Registry: Edmonton Between: Andrew Botar Plaintiff - and - Braden Equities Inc Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Peter Michalyshyn _______________________________________________________ [ 1 ] The plaintiff Andrew Botar has sued the defendant Braden Equities Inc. for $1 million on account of numerous alleged civil offences arising from the alleged unlawful entry to Botar’s rented premises and an alleged assault against him, amongst other things. These offences are alleged to have occurred on September 2, 2014, January 26, and March 2 and 7, 2016. [ 2 ] Botar’s claim issued October 24, 2016. It was served on Braden’s offices on the same day. [ 3 ] Braden failed to defend the claim within 20 days.

It was noted in default at pretty much the earliest opportunity, at 8:17 a.m., on November 15, 2016. [ 4 ] The next day, on November 16, 2016, and supported by his affidavit filed November 15, 2016, Botar applied without notice and was granted default judgment against Braden.

[5] The judgment was not for the $1 million claimed. The judgment was for, rather, $8,500, plus costs of $1,500. Why this is sois not apparent from the court file in the action between Botar and Braden, being 1603 18620. [6] Botar’s November 15, 2016 affidavit refers to another action, what he calls the “parallel/related Action/Matter QB # 160304182 (Braden v. Botar)”. Botar’s November 15, 2016 affidavit specifically mentions the March 7, 2016 Originating Application in1603 04182, and affidavits of March 22 and May 24, 2016.

A review of the1603 04182 court file, and of the materials specifically justmentioned, fails to reveal any obvious back up for the $8,500 quantum. [7] No transcript of the without-notice proceedings of November 16, 2016 is before me. [8] Braden appeared before me on January 4, 2017 with an application to have Botar’s default judgment set aside. [9] The application was supported by a December 2, 2016 affidavit on Braden’s behalf that denies service of Botar’s Statementof Claim, deposes as to the defendant’s actions upon receiving Default Judgment, and deposes as to a “good and valid defence” toBotar’s claims in that Braden deposes any entries to Botar’s rented premises were lawful as were any activities undertaken while onthose premises.

Botar suggests otherwise, giving rise to facts in dispute. [10] The December 2, 2016 Braden affidavit also denies any known hindrance, delay or prejudice to Botar’s action if the defaultjudgment is set aside. There is no evidence to the contrary. [11] The January 4, 2017 application was adjourned for Braden’s counsel to back up his application with authorities, and for Botarlikewise to provide authorities for his position opposing the application.

Pending receipt of those materials I ordered a stay of executionof the order made November 16, 2016; I ordered further that any funds paid into Court under the November 16, 2016 order not bereleased until further order. [12] The applicant now relies on cases including Don Reid Upholstery Ltd. v Patrie, (QB), 173 AR 233. The respondent relies on cases including Palin v.

Duxbury, 2010 ABQB 833, 15 CPC (7th) 191, which mentions Don Reid, at para 49, forthe core point made by Veit J in that case, in response to the submission before her that the case law has established "Rules" that must befollowed before a default judgment can be set aside: There are no such rules; there is only one rule - the court must do what is fair. The case law merely provides guidance for the exercise ofjudicial discretion in setting aside judgments. [13] With this core principle in mind, the court in Palin notes that there is no material difference between the pre-2010 rules andthe current rule, 9.15(3).

It notes the three-part test of 1) arguable defence; 2) some excuse for the default; and 3) a prompt application to‘open up’.

The Court in Palin notes further that the absence of evidence of wilful delay, or of “irreparable injury” (ie, prejudice), willfigure large in the outcome of applications to set aside default. [14] The facts in Palin are entirely distinguishable from the case before me. [15] In the case before me, there is an arguable defence based on conflicting evidence and the need for a credibility assessment.Complicating matters is the apparent lack of any reasonable basis for the $8,500 quantum of the default judgment given November 16,2016. [16] In the case before me there is also evidence of an excuse for the default – that while service is admitted upon a Bradenemployee, the claim was then not brought to the Braden officer’s attention until shortly after default judgment was obtained.

This ischaracterized as inadvertence, and there is no evidence or inference on the evidence to the contrary. [17] The application to ‘open up’ the default judgment was brought in good time. [18] Finally, there is no evidence of wilful delay, or of irreparable injury, or prejudice, to Botar, on account of setting aside thedefault judgment. [19] For these reasons, the three-part test is satisfied, and it is fair that Braden’s application should succeed. Costs will be in thecause. Heard on the 04th day of January, 2017. Dated at the City of Edmonton, Alberta this 11th day of January, 2017.

Peter Michalyshyn J.C.Q.B.A.

Appearances: Andrew S. Botar for the Self-Represented Litigant A.S. Attia Attia Reeves for the Defendant