2016 MBCA 94, 2016 MBCA 94

Citation: Thermo Applicators Inc v CIR Mechanical, Date: 20160921 Installations Ltd et al, 2016 MBCA 94 Docket: AI16-30-08533 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : ) K. M. Coutts THERMO APPLICATORS INC. ) for the Appellant ) (Plaintiff) Appellant ) ) E. A. P. Haughey ) for the Respondents - and - ) ) C.I.R.

MECHANICAL INSTALLATIONS ) LTD. and LEN DERKSEN ) Appeal heard and ) Decision pronounced: (Defendants) Respondents ) September 21, 2016 STEEL JA (for the Court): [ 1 ] This is an appeal from the decision of a motion judge setting aside a default judgment signed by the registrar against the individual respondent. [ 2 ] The motion judge set aside the default judgment for two reasons.

First, the motion judge held that the judgment was not a debt or liquidated demand in money as is required by the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, r 19.04(1)(a), and second, in any case, given the facts of this case, the motion judge held that it would be just to set aside the default judgment. [ 3 ] The appellant argues that the motion judge erred in finding that the breach of trust claimed here was not a debt or liquidated amount in money. Given that error, the motion judge’s analysis of whether it would be just to set aside the judgment was flawed.

As well, it is submitted that, in any case, the motion judge erred in the exercise of his discretion. [ 4 ] There is a difference in the rules between default judgment signed by the registrar (r 19.04) and default judgment ordered by a judge (r 19.05). In this case, the default judgment was signed against the individual defendant by the registrar pursuant to r 19.04(1) of the Court of Queen’s Bench Rules upon the basis that this was a claim for “a debt or liquidated demand in money”. The motion judge disagreed, finding that the claim was one solely of breach of trust.

We agree. [ 5 ] The allegations in the statement of claim, even if taken to be true, do not amount to a fixed or ascertained amount. The statement of claim alleges a breach of trust in amounts that were received or “ought to have [been] received”. The amount owing by the individual respondent was dependent on the extent to which any funds were advanced to the corporate respondent and how they were used thereafter.

We agree with the motion judge that, on the allegations in the statement of claim alone, there was not a liquidated amount so as to permit the registrar to enter default judgment. [ 6 ] With regard to the second ground of appeal, as everyone is well aware, the standard of review of a discretionary judgment is highly deferential. Rule 19.08(1) of the Court of Queen’s Bench Rules states that the Court may set aside or vary a default judgment on such terms as are just.

The judge’s discretion to do so is broad, and may consider a number of factors including, but not limited to, whether there is a meritorious defence, whether there was delay on the part of the defendant in bringing the motion and whether there will be irreparable harm to the plaintiff. See Protect-A-Home Services Inc v Heber , 2001 MBCA 171 , 160 ManR (2d) 100; and Wynn Las Vegas, LLC v Li , 2012 MBQB 191 , 281 ManR (2d) 95. [ 7 ] The motion judge reviewed a number of factors in coming to his decision. He noted that the individual defendant

denied any inappropriate conduct in his affidavit. He denied that the corporation received all the funds alleged or that those funds had been used inappropriately. The motion judge held that this was an arguable defence and he was entitled to so find. His decision did not constitute a miscarriage of justice and was not clearly wrong. [ 8 ] The appeal is dismissed with costs. JA JA JA