Thomas v. Hamilton, 2013 BCSC 2470

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Thomas v. Hamilton, 2013 BCSC 2470 Date: 20130322 Docket: 12-4147 Registry: Victoria Between: Jacqueline Thomas Plaintiff And: Camie Hamilton, doing business as Camrick Purrfetch Petcare Defendant Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment Counsel for the Plaintiff: C. Siver Counsel for the Defendant: D. Ellis Place and Date of Hearing: Victoria, B.C. March 22, 2013 Place and Date of Judgment: Victoria, B.C.

March 22, 2013 [ 1 ] THE COURT: This is an application by the defendant to set aside the default judgment that has been granted in this matter. The history of this case is reasonably straightforward and it involves the tragic death of the plaintiff's dog whilst it was in the care of the defendant. [ 2 ] The plaintiff, Ms. Thomas, filed a notice of civil claim seeking damages against the defendant, Ms. Hamilton. The notice of claim was served on Ms. Hamilton on 7 December 2012. Shortly thereafter, Ms. Hamilton forwarded the notice of claim to her insurer, Aviva Canada Insurance Company (“Aviva”).

That was an appropriate move on Ms. Hamilton's part and is indicative of her diligence and clear intention to defend against the claim being advanced by Ms. Thomas. [ 3 ] Multiple emails were sent between counsel for the plaintiff and various insurance adjusters at Aviva over the course of the next two months or so. One of those messages put Aviva on notice that default judgment would be taken against Ms. Hamilton if a defence was not filed in a timely manner. For reasons that are not clear, Aviva did not act with the speed one would have expected in addressing Ms.

Hamilton's needs, including the important task of retaining counsel for Ms. Hamilton and having a defence to Ms. Thomas’ action filed on behalf of Ms. Hamilton. [ 4 ] In February 2013, counsel for Ms. Thomas obtained a default judgment against Ms. Hamilton, as no statement of defence had been filed. By sheer coincidence, within a day or two of the default judgment being granted, Aviva appointed legal counsel for Ms. Hamilton with the intention of having a defence to Ms. Thomas’ action filed. It was only when Ms. Hamilton’s newly appointed counsel contacted counsel for Ms. Thomas that Ms.

Hamilton and Aviva became aware of the default judgment. I do not read anything into that fact, given that there was only a two-day span between the default judgment and the appointment of counsel, and by that I mean I do not find any fault on the part of Ms. Thomas or her counsel or any suggestion that they were keeping a default judgment hidden. [ 5 ] The criteria necessary to set aside a default judgment are set out in the oft cited case of Miracle Feeds v. D. & H. Enterprises Ltd. (1979), 10 B.C.L.R. (58) (Co. Ct.). [ 6 ] I am satisfied that Ms.

Hamilton has met the first criterion of the Miracle Feeds test, in that there was no wilful or deliberate failure on her part to file a defence. Whether Aviva, her insurer, acted appropriately and in her best interest is another question and one that Ms. Hamilton might wish to raise with her insurers. While I do not need to answer that question on this application, I will say that in my view Aviva should have acted more promptly to ensure a defence was filed on behalf of Ms. Hamilton. Moreover, in my view it would be unfair to blame Ms. Hamilton for the action or more properly the inaction of her insurer.

She did what she needed to do; her insurers perhaps were not as prompt or diligent as they should have been. [ 7 ] I take it, Mr. Siver, that the plaintiff is not taking issue with the second of the Miracle Feeds criteria; that is, that prompt action

has been taken once default judgment became known. [ 8 ] MR. SIVER: No, My Lord. [ 9 ] THE COURT: All right. I think that is the proper position to take. Given the chronology of events, I am satisfied that once the existence of the default judgment became known to Ms. Hamilton and her counsel, they took prompt action to address the situation. I find the second part of the Miracle Feeds test has been met. [ 10 ] The third issue for me to consider is whether there is a prima facie meritorious defence or one that warrants further investigation. That does not mean I have to be convinced that Ms.

Hamilton has a defence that will succeed at trial. I must simply be satisfied that the proposed defence is not frivolous and has, on its face, some value. I have listened attentively to what Mr. Siver has had to say and there is strength in his submissions about the defences Ms. Ellis proposes to argue on behalf of Ms. Hamilton. However, I cannot say at this point that all of those defences are meritless. In other words, in my opinion there is some merit to the defences, or at the very least something that is worthy of the court’s further consideration.

I therefore find that the third criterion of Miracle Feeds test has been met. [ 11 ] While I am going to grant Ms. Hamilton’s application and set aside the default judgment, I do so with some hesitancy because I understand the anxiety Aviva’s delays have likely caused Ms. Thomas. Ms. Hamilton may have been careless or negligent in how she handled and cared for Ms. Thomas’ dog and consequently her reliance upon the exclusion clause in the agreement the parties executed may well fail. However, now is not the time to decide that issue. I think in fairness, Ms.

Hamilton should be given an opportunity to advance her defences, and Ms. Thomas should be given an opportunity to prosecute her claims. I will leave it to counsel to consider whether this matter needs to proceed to a full trial with the testimony of witnesses or whether a

summary trial on affidavits will suffice. [ 12 ] In the result, I will grant the application and set aside the default judgment. In doing so, I must say that I am troubled by the prospect of Ms. Hamilton being personally responsible for Ms. Thomas’ costs of today’s hearing. [ 13 ] Mr. Siver, I will hear you on the issue of costs, and then I will hear you, Ms. Ellis. What do you have to say about costs of this application? [SUBMISSIONS ON COSTS] [ 14 ] THE COURT: Here is what I will do. Mr. Siver, your position on costs is a principled one.

I will also say I do not think you did anything wrong in taking default judgment on behalf of your client. I will order costs in the cause. But, you can take note of these comments and bring them to the attention of the trial judge, if this matter goes to trial. You can indicate that in my view Aviva’s failure to respond in a timely manner was the principal reason why today’s application was necessary. I would have given serious consideration to awarding costs against Ms.

Hamilton on this application, notwithstanding the fact that she was successful, if I was satisfied that Aviva would be responsible for paying those costs and not Ms. Hamilton personally. If I had a way of awarding costs against Aviva, I would, but I do not think I can do that. If this matter goes to trial you can tell the trial judge what my views were on the issue of costs. Obviously, my views are not binding on the trial judge and he or she may see things differently. [ 15 ] So, Ms. Hamilton’s application is granted, the default judgment is set aside, and costs will be in the cause. [ 16 ] Ms.

Ellis, you will draft the order? [ 17 ] MS. ELLIS: Yes, My Lord. [ 18 ] THE COURT: Mr. Registrar, that was clear enough for your notes? [ 19 ] THE CLERK: Number 2 on the notice of application, My Lord? [ 20 ] THE COURT: Oh, good point, thank you, Mr. Registrar. [ 21 ] I take it 14 days is what the defendant requires? [ 22 ] MS. ELLIS: Yes, My Lord. [ 23 ] THE COURT: All right. On that issue, Mr. Siver, I take it there is no argument? [ 24 ] MR.

SIVER: Fourteen days is perfectly reasonable. [ 25 ] THE COURT: All right then, looking at the orders sought in the notice of application filed March 13, 2013: paragraph 1 is granted, default judgment is set aside; paragraph 2 is granted, the defendant’s time to file a response is extended for 14 days from today's date; and paragraph 3, costs will be in the cause, with counsel having the ability to bring my comments to the trial judge’s attention. [ 26 ] I thank you both for your submissions. I take it there is no need for further clarification? [ 27 ] MR. SIVER: No, My Lord, thank you. “G.R.J. Gaul, J.”