QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 481 Date: 2008 11 28 Docket: Q.B.G. No. 108 of 2008 Judicial Centre: Melfort BETWEEN: BARRY STRANGE, operating under the trade name of MIDDLE LAKE HOTEL 2002 and SASKATCHEWAN MINISTRY OF ADVANCED EDUCATION EMPLOYMENT AND LABOUR, LABOUR STANDARDS BRANCH Counsel: R. Gregory Wilson for the applicant Shannon A.C. Carson for the respondent FIAT POPESCUL J. November 28, 2008 INTRODUCTION [1] The applicant, Barry Strange, operating under the trade name of Middle Lake Hotel 2002 (“the applicant”), brings an application seeking an order setting aside a wage assessment certificate issued by the Director of the Labour Standards Branch (“the Director”) and filed with this Court. The applicant disputes liability for the amount set out in the wage assessment and claims that he inadvertently and innocently missed the time within which to file an appeal. He seeks to set aside the certificate, which has been registered as judgment of this Court, on the same basis that the Court would open up noting for default or set aside default judgment. The Director, on the other hand, takes the position that this Court is without jurisdiction to do what the applicant seeks and, in any event, submits that the applicant has not met the criteria necessary to trigger the exercise of the Court’s discretion. ISSUES [2] The issues raised in this application are:(1) Does this Court have jurisdiction to set aside the Director’s certificate filed with the Court of Queen’s Bench?(2) If so, what criteria ought to be applied in determining whether the Court should exercise its discretion in favour of setting aside the wage assessment certificate?(3) Has the applicant satisfied the criteria? [3] complaint was filed by an employee with the Labour Standards Branch against her employer, the applicant. An assessment was done by Labour Standards officer and copy was forwarded to the applicant. meeting was set up for the Labour Standards officer and the applicant to discuss the wage assessment. The meeting was arranged for March 6, 2008 at the applicant’s place of business. [4] On March 4, 2008 the applicant contacted the Labour Standards officer and told her that he wanted to deal with the matter through his lawyer and did not wish to proceed with the meeting scheduled for March 6, 2008. [5] On April 9, 2008, the Labour Standards officer completed her review. By letter dated April 9, 2008 she sent letter to the applicant, enclosing copy of the assessment showing wages due in the amount of $3,383.35, and requesting his input. The letter, reads in part, as follows: As you can see there is an assessment owing. Please review this as soon as possible. would like to be able to prepare Wage Assessment on April 16, 2008 so that hearing can be scheduled upon my return in August, 2008. Please call me at prior to that date; otherwise will prepare Wage Assessment on that date. [6] The applicant contacted the Labour Standards officer on April 16, 2008 and advised her that he did not agree with the assessment and that he wished to dispute the employee’s claim. The Labour Standards officer and the applicant discussed the possibility of hearing taking place in August of 2008. The Labour Standards officer was going on leave and would not be back until August of 2008. [7] On April 16, 2008, the Labour Standards officer sent an inspection report to the applicant indicating that she had determined that the employee was entitled to further wages and assessed the amount at $3,383.35. The relevant portion of that letter reads as follows: If you have any questions about the assessment or wish to submit additional information, please contact me before April 23, 2008 at Otherwise, please make out cheque or money order to the employee and deliver it before April 23, 2008 [8] On April 24, 2008, the Labour Standards officer received letter from the respondent dated April 21, 2008. The body of this handwritten letter reads, in its entirety, as follows: This letter is to confirm that we wish this matter to go to hearing, please advise us to the time and place. [9] On May 27, 2008, the manager of the Labour Standards Branch sent letter to the applicant demanding payment of $3,383.35 failing which the Branch would take action that included, but would not necessarily be limited to, the issuance of wage assessment. [10] On June 3, 2008, the applicant telephoned the Labour Standards Branch and spoke with Maureen Ooms, one of the Labour Standards officers. He told her, during the course of that conversation, that he wanted to appeal the matter. According to the affidavit of Ms. Ooms, she explained to the applicant that wage assessment would soon be sent to him by registered mail, after which he would need to contact the office of the registrar of appeals within the appeal period in order to trigger hearing. Ms. Ooms also informed the applicant that information on how to launch an appeal would be included in the material sent with the wage assessment. She also deposed in her affidavit that she told the applicant to contact her should he have any questions. [11] On June 24, 2008, formal wage assessment was processed and sent by registered mail to the applicant. The wage assessment document clearly states the amount owing was determined to be $3,383.35, and then goes on to state: You are hereby directed to pay the total amount claimed within 21 days after the date of service of this Wage Assessment or commence an appeal pursuant to Section 62 of The Labour Standards Act. If you do not appeal this Wage Assessment to the Registrar of Appeals within 21 days and if you do not remit the required deposit with your appeal (see Section 29 of The Labour Standards Act Regulation 1995), the Wage Assessment will become judgement against you. Relevant sections of The Labour Standards Act and regulations are quoted for your information on the enclosed page. [emphasis added] [12] That same document contains clear information as to where to serve the notice of appeal and also alerts the applicant to the requirement of remitting either the assessed amount or $500 deposit to the registrar of appeals. It also includes direct reproductions of several pertinent sections of The Labour Standards Act, R.S.S. 1978, c. L-1, including s. 60(2) and ss. 62, 63 and 68.1. [13] Notwithstanding the above, the applicant did not file an appeal nor deposit the required funds within 21 days after the date of service of the wage assessment, or at all. [14] Despite the information provided to the applicant by Ms. Ooms and despite the clear wording contained on the face of the “Wage Assessment” signed by the Director and forwarded to the applicant by registered mail, the applicant claims that he did not file the required appeal and submit the deposit because he believed that his April 21, 2008 letter confirming that he wanted the matter to go to hearing caused him to understand “the matter would be set for hearing in August”. In the affidavit filed in support of his application, the applicant attempts to explain away his failure to act as follows: On June 24, 2008 Mr. Mcrorie sent another letter indicating that wage assessment had been made against me. understood this to be part of the normal procedure. That letter stated that must appeal within 21 days. thought that my letter of April 21, 2008 would be sufficient and hearing would be set in August. did not realize that had to take any further action. [15] Further on in his affidavit the applicant deposes: believed at all times the matter would be set for hearing in August. was never informed by the Respondent that any further action was required of me to have the matter set for hearing. [16] On August 12, 2008, the Director, not having received notice of appeal, proceeded to issue certificate, pursuant to s. 60 of the Act, declaring that the applicant owed the employee $3,383.35. [17] That certificate was subsequently filed with the Court of Queen’s Bench on August 26, 2008. [18] On September 2, 2008 letter was sent by the Director to the applicant notifying him that judgment had been obtained and that collection proceedings on the judgment had been initiated. [19] It was at this point that the applicant took steps to set aside the Director’s certificate. LEGISLATIVE SCHEME [20] Section 60(2)(a) of The Labour Standards Act provides that the Director can issue wage assessment against an employer where he has reason to believe or suspect that an employer has failed to pay wages. In this case, the Director formed that belief and on June 24, 2008 issued wage assessment pursuant to s. 60(3) that was subsequently served upon the applicant on June 27, 2008. [21] If the employer disputes liability for the amount set out in the wage assessment, the employer has 21 days to initiate an appeal by serving notice of appeal on the registrar of appeals (see: s. 62(1)). If no appeal is received within 21 days, the Director may issue Director’s certificate (see: s. 62.4(1)(a)). [22] If an appeal is filed within 21 days, the registrar of appeals selects an adjudicator to conduct hearing and rule on the dispute. The adjudicator is given authority by the enabling statute to dismiss the appeal or allow the appeal (either by varying the amount of the wage assessment or by revoking it). The adjudicator must provide written reasons for her decision. If either party is not satisfied with the decision of the adjudicator, an appeal “on question of law or of jurisdiction”, may be initiated to judge of the Court of Queen’s Bench, provided it is launched within 21 days after the date of the adjudicator’s decision (see: s. 62.3(1)). [23] Therefore, the process provides for two appeals, both of which require action within 21 days. The first is an appeal to an adjudicator from decision of Director (“a director appeal”). The second is an appeal from an adjudicator to Queen’s Bench judge (“an adjudicator appeal”). [24] Where no appeal is initiated within either 21-day appeal period, the Director may issue Director’s certificate that specifies the amount of wages declared to be owing by the employer to the employee. [25] In this case no appeal of the Director’s wage assessment was launched and therefore the matter did not proceed to adjudication. Accordingly, Director’s certificate was properly issued as permitted by s. 62.4(1)(a). [26] Once Director’s certificate is issued, s. 62.4(3) provides that it may be filed with the registrar of the Court of Queen’s Bench. This was done on August 26, 2008. Where certificate is so filed, that certificate, “has the same force and effect as if it were judgment obtained in the Court of Queen’s Bench for the recovery of debt”, (see: s. 62.4(4)). (1) Does this Court have jurisdiction to set aside the Director’s certificate filed with the Court of Queen’s Bench? [27] The Director submits that this Court is without jurisdiction to provide the relief requested by the applicant. This is because s. 62 of the Act requires that any appeal must be launched within 21 days. Limitation periods pertaining to appeals must be strictly followed. There is no provision in the Act allowing for an extension of time in which to bring an appeal and, consequently, the Court is without jurisdiction to grant the relief. The Director relies upon the decision of Allbright J. in Farmers of North America Inc. v. Langridge, 2004 SKQB 375 (CanLII), 260 Sask. R. 37. [28] In that case wage assessment was issued by the Director and served on the employer. The employer disputed the wage assessment and filed “director appeal” within the 21-day appeal period. An adjudicator was selected and hearing was held. The adjudicator confirmed the wage assessment. [29] The employer in Farmers of North America was not satisfied with the decision of the adjudicator. He wished to launch an appeal pursuant to s. 62.3(1) which permits an appeal of an adjudicator’s decision, on question of law or jurisdiction, to judge of the Court of Queen’s Bench. However, in that case the 21-day “adjudicator appeal” period was missed. Allbright J. arrived at the following conclusion: 12 In this instance, s. 62.3 provides what conclude to be mandatory time limitation which is to be strictly followed. There is no attendant provision for allowing an extension of time in which to bring an appeal. 13 Accordingly am left with no discretion other than to dismiss the appeal which has been brought to this Court outside of the mandatory time limitation for the bringing of an appeal. [30] Allbright J. relied upon the reasoning of Krueger J. in Beauval Trucking and Construction Ltd. v. Laprise, 1997 CanLII 10922 (SK QB), [1997] W.W.R. 52 (Sask. Q.B.). similar conclusion was also reached by Gerein J. in Parr v. IPSCO Saskatchewan Inc. (1999), 1999 CanLII 12850 (SK QB), 183 Sask. R. 124 (Q.B.). [31] The decision in Farmers of North America is clearly distinguishable from the current case because its focus was on an “adjudicator appeal” as opposed to “director appeal”, as is the case here. [32] In the case of an “adjudicator appeal” there has already been an adjudicative process. An independent and arm’s length adjudicator is mandated to conduct hearing on de novo basis. The adjudicator is required to listen to the evidence and submissions of the parties and, at the conclusion of the process, has the authority to either dismiss the appeal or allow it. If the appeal is allowed, the adjudicator may vary the amount claimed in the wage assessment or revoke it in its entirety. The decision rendered by the adjudicator must be supported by written reasons, which are to be rendered within 30 days from the hearing. The adjudicator’s decision is final and appeals are allowed only on the basis of jurisdictional or legal error. An appeal from an adjudicator’s decision has all the earmarks of true appeal. [33] Conversely, “director appeal”, although labelled an “appeal” by statute, does not share the signature characteristics of true appeal and is more aptly categorized as request for an automatic de novo hearing before an adjudicator. The wage assessment of the Director cannot be considered an unbiased arm’s length “decision”. There is no requirement that there be any representation by, or consultation with, the employer before the assessment is made. Although this may often happen as matter of course, it is not required and therefore the issuance of Director’s certificate cannot properly be viewed as the end result of some type of unbiased arm’s length adjudicative process. [34] Accordingly, even though an appeal from a wage assessment to the appeals board and an appeal from an adjudicator to the Court of Queen’s Bench both require “appeals” within “21 days” an appeal to the Court of Queen’s Bench is a true appeal while an “appeal” to the appeals board is essentially a request for a de novo hearing. Consequently, I conclude that the consequences of missing the time limitation are not necessarily the same. [35] In the case of adjudicator appeals, accept and adopt the conclusions and reasoning reached by Allbright J. Specifically, the law is well settled in the areas of the extension of time to serve statutory appeals. Time limits must be strictly enforced. If there is no provision to extend the time within which to appeal, court is without jurisdiction to grant an extension. One of the underlying reasons for this conclusion is that appeals are statutorily based and if there is no foundation in statute, there is no basis for an appeal. [36] Conversely, the principles and considerations that apply to “director appeals” are much different. There has been no independent evidentiary based finding. After an allegation is made, it becomes an enforceable judgment if the proper steps to dispute it are not taken within the specified period of time. The consequences for inaction parallel those of defendant who is noted for default as result of his failure to file statement of defence within the prescribed time frame. [37] I conclude that this Court does have jurisdiction to deal with an applicant’s request, on a director appeal, because it is not a “true appeal” that questions a decision made by an independent adjudicator after a hearing. Accordingly, the reasoning of this Court in Farmers of North America is not applicable to these circumstances. A finding that this Court is without jurisdiction to set aside a judgment, obtained without any independent adjudicative process, regardless of the basis upon which that judgment was obtained, is inequitable and at odds with existing practices and procedures. There are, in my view, at least two bases upon which it can be found that this Court is clothed with jurisdiction to exercise its discretion and provide remedy in appropriate circumstances. [38] The first basis is found in the statute. Section 62.4(4) of The Labour Standards Act states that certificate filed pursuant to ss. (3) has the same force and effect as if it were judgment obtained in the Court of Queen’s Bench for the recovery of debt. If the employee had sued the employer for the wages, which it would be her right to do, and if a statement of claim had been served, but not defended, and the matter was noted for default, this Court certainly would have jurisdiction to determine whether or not the defendant/employer’s application to open up of a noting for default should be granted. The Queen’s Bench Rules provide for the opening up of a noting for default. See: Rule 114(3); Rule 271; Rule 346. It logically follows, therefore, that where a judgment is filed in this Court that this Court would be able to look behind the filing and examine the circumstances under which that judgment was entered. If the judgment, for all intents and purposes, is to be treated as judgment of this Court, it ought to be able to be set aside on the same basis as judgment of this Court. [39] The second basis is the inherent jurisdiction of the Court. The Court of Queen’s Bench is superior court, charged generally with the administration of justice and enjoys inherent as well as statutory jurisdiction. See: Royal Bank of Canada v. Sordsdahl, 1991 CanLII 8020 (SK CA), [1991] W.W.R. 730 (Sask. C.A.). In MacMillan Bloedel Limited v. Simpson, 1995 CanLII 57 (SCC), [1995] S.C.R. 725, the Supreme Court of Canada held that the superior courts have an inherent jurisdiction which is integral to its operations, and which cannot be removed by either level of government without constitutional amendment. The power of superior courts to fully control its own process is essential to the maintenance of the rule of law itself. [40] To be without jurisdiction, as argued by the Director, means that regardless of how the Director’s certificate came to be filed with the Court, this Court cannot go behind that process because it is “without jurisdiction” to do so. This would mean, according to the logical extension of the Director’s argument, that an individual who does not object to Director’s wage assessment within the required time can never set aside the resulting registration of judgment regardless of the reason. What if, after being served with Director’s certificate, the potential appellant is on his way to his lawyer’s office to provide instructions to launch an appeal when he is involved in serious car accident that totally incapacitates him until after the expiration of the time limitation? What if there was an error made in the service of the wage assessment document and it is indisputable that the potential appellant had never received it? This Court must have jurisdiction to grant equitable relief in circumstances such as those raised in the above referenced hypotheticals; accordingly, conclude that this Court, by logical extension of this reasoning, must have jurisdiction to grant the equitable relief requested in this case. [41] Therefore, for the reasons cited above, conclude that this Court does have jurisdiction to set aside Director’s certificate that was filed in this Court. 2. If so, what criteria ought to be applied in determining whether the Court should exercise its discretion in favour of setting aside the wage assessment certificate? [42] There is significant body of case law that deals with the circumstances under which the Court ought to open up noting for default and set aside default judgment. These cases attempt to strike balance between certainty and the orderly administration of the justice system, and equity. If one is served with documents and does not respond, normally that party bears the consequences for his own inaction. To have it any other way would seriously undermine the efficacy of our system of law. Rules and time lines must be adhered to and respected. However, there are circumstances where it is simply inequitable to hold party to an arbitrary deadline, especially where there are compelling legitimate reasons not to do so and the other party has suffered no prejudice. The balancing of these competing principles has lead to body of law pertaining to when this Court ought to permit judgment or noting for default to be set aside where the defendant did not file defence in the required time frame. [43] The principles and competing interests underpinning director appeals are analogous to those involved in cases where plaintiff obtains default judgment and seeks to set aside the noting for default and the default judgment. Essentially, an unsworn allegation is made and the employer has 21 days to file dispute, failing which the allegation is considered to be admitted. Accordingly, see no reason why the principles and the rules that flow from them and which have developed in relation to the opening up of noting for default and in setting aside default judgments ought not be applied to situations where judgment of this Court was obtained as result of the failure of an employer (or for that matter an employee) who has missed the 21-day limitation period imposed by s. 62(1) of the Act. The developed case law has identified these four criteria: (1) the application is to be made as soon as possible after the judgment sought to be set aside comes to the attention of the applicant in the event of any delay, the applicant must justify and satisfactorily explain the reasons for the delay; (2) the applicant must provide satisfactory explanation for his failure in responding to the claim; (3) the applicant must disclose the defence that raises arguable issues; and (4) the applicant must satisfy the court that an order setting aside the judgment will not seriously prejudice the party who has obtained the judgment. See: Royal Bank v. Jenson (1988), 1988 CanLII 4958 (SK QB), 71 Sask. R. 277 (Q.B.); Klein v. Schile (1921), 1921 CanLII 107 (SK CA), 59 D.L.R. 102, [1921] W.W.R. 78 (Sask. C.A.); Bank of Montreal v. Pauls (1984), 1984 CanLII 2419 (SK CA), 35 Sask. R. 204 (C.A.). [44] Accordingly, I find that it is fair and equitable to apply, by analogy, the principles and resulting rules formulated relating to opening up a default judgment to the applicant’s request to set aside the judgment registered in circumstances where he has failed to file an appeal disputing a wage assessment to the registrar of appeals. (3) Has the applicant satisfied the criteria? [45] The applicant has satisfied me that upon learning that the Director’s certificate had been filed with this Court he took steps to set it aside. He has also satisfied me that he has potential defence on the merits and that the respondent would not suffer any prejudice by having the certificate set aside and for the matter to proceed to adjudication. The only aspect requiring further scrutiny relates to the third criterion, namely whether or not the applicant has provided satisfactory explanation for his failure to respond to the wage assessment notice within the required time. [46] Upon careful review, have determined that it is not appropriate to exercise my discretion to open up the judgment because the applicant has not satisfactorily explained why it was that he did not file the appeal within 21 days after receiving formal notice. [47] There is no evidence before me that would suggest or from which it could be reasonably inferred that the applicant cannot read or has any limitations that might effect his ability to understand the documentation served upon him. Furthermore, no satisfactory explanation has been provided as to why relatively simple step to file his notice of appeal and remit the deposit was not done as required. [48] Rather, what has been tendered as the basis for the exercise of this Court’s discretion is an explanation that he thought that the handwritten letter to the Labour Standards officer (and not the registrar of appeals) was sufficient compliance, even though at that time the Director’s wage assessment had not yet even been completed. have difficulty in understanding how the applicant could possibly have arrived at such conclusion. Obviously, the applicant disagreed with what was being asserted by the Labour Standards officer. The Labour Standards officer indicated that he could follow the process and that hearing could likely be scheduled in August when she returned from leave. However, no firm date was set and am satisfied that the discussion occurred as stated in the affidavits of the Labour Standards officers. Moreover, there is no dispute as to whether the applicant was served with the documentation by registered mail. The registered letter clearly stipulates that should the applicant wish to appeal he must take certain steps within 21 days. [49] The applicant either declined to read, or chose to ignore, the plain language on the document. This, at the very least, amounts to wilful blindness. In numerous cases wilful blindness has been held to not constitute sufficient reason for setting aside noting for default. See: Whittingham v. Métis Society of Saskatchewan (1985), 1985 CanLII 2692 (SK QB), 41 Sask. R. 213 (Q.B.); and Boychuk Hotels Ltd. (1983) v. Berge, [1984] Sask. D. 3650-01. [50] Litigants must take some responsibility to ensure that they act properly upon receiving documentation, especially formal documentation. The fact that the wage assessment was served upon the applicant by registered mail ought to have underscored the importance of the document. The document appeared to be formal in nature and upon receipt the applicant most certainly ought to have taken measures to determine what it was that he needed do as result of being served with that document. Furthermore, the document itself contained all the information the applicant would have needed to process the appeal. [51] If was to conclude that, under these circumstances, ought to exercise my discretion in favour of setting aside the judgment, virtually any judgment could be set aside with merely bald assertion by an applicant that he did not appreciate the seriousness or impact of the documentation served upon him. Simply stating that, “I thought my letter of April 21, 2008 would be sufficient ...” and “I did not realize that had to take further action” is, under these circumstances, not satisfactory explanation for his inaction. Furthermore, his assertion that “I believed at all times the matter would be set for August” and “I was never informed by [the Labour Standards Branch] that any further action was required ...”, flies in the face of the documentation served upon him and is contrary to the affidavit evidence of the Labour Standards officers, which accept. [52] The evidence is that the applicant is businessman running commercial enterprise in Foam Lake. It is expected that somebody in his position would have the savvy to read, review and understand the document or, if uncertain, at least seek assistance from someone who could help him. [53] The applicant has failed to satisfy me that the third prong of the four-pronged test has been met and, accordingly, I am not prepared to exercise my discretion in favour of setting aside the Director’s certificate filed as a judgment of this Court. [54] The respondent has been successful in the end result. However, the applicant has been able to convince me that this Court does have jurisdiction to grant the relief that he had requested should all of the criteria have been met. Accordingly, there is mixed success. As result, no costs of this application will be awarded to either party. J. M.D. POPESCUL
FIAT: The applicant seeks an order setting aside a wage assessment certificate issued by the Director of the Labour Standards Branch (the Director) and filed with this Court. The applicant disputes liability for the amount set out in the wage assessment and claim that he inadvertently and innocently missed the time within which to file an appeal. The issues are whether this Court has jurisdiction to set aside the Director's certificate filed with the Court of Queen's Bench, if so what criteria ought to be applied in determining whether the Court should exercise its discretion and whether the applicant has satisfied the criteria. HELD: 1) Even though an appeal from a wage assessment to the appeals board and an appeal from an adjudicator to the Court of Queen's Bench both require 'appeals' within '21 days', an appeal to the Court of Queen's Bench is a true appeal while an 'appeal' to the appeals board is essentially a request for a de novo hearing. Consequently, this Court concludes that the consequences of missing the time limitation are not necessarily the same. 2) This Court does have jurisdiction to deal with an applicant's request, on a director appeal, because it is not a 'true appeal' that questions a decision made by an independent adjudicator after a hearing. Accordingly, the reasoning of this Court in Farmers of North America Inc. v. Langridge, 2004 SKQB 375, is not applicable. A finding that this Court is without jurisdiction to set aside a judgment, obtained without any independent adjudicative process, regardless of the basis upon which that judgment was obtained, is inequitable and at odds with existing practices and procedures. Section 62.4(4) of The Labour Standards Act states that a certificate filed pursuant to s. 62.4(3) has the same force and effect as if it were a judgment obtained in the Court of Queen's Bench for the recovery of a debt. This Court certainly would have jurisdiction to determine whether or not the applicant's application to open up a noting for default should be granted pursuant to Rule 114(3), Rule 271 and Rule 346. It follows that this Court is able to look behind the filing and examine the circumstances under which that judgment was entered. The Court of Queen's Bench is a superior Court charged with the administration of justice and enjoys inherent as well as statutory jurisdiction. This inherent jurisdiction cannot be removed by either level of government without constitutional amendment. 3) It is fair and equitable to apply, by analogy, the principles and resulting rules formulated relating to opening up a default judgment to the applicant's request to set aside the judgment registered in circumstances where he has failed to file an appeal disputing a wage assessment to the registrar of appeals.  4) The evidence is that the applicant is a businessman running a commercial enterprise in Foam Lake. It is expected that somebody in his position would have the savvy to read, review and understand the document, or at least seek assistance from someone who could help him. The applicant either failed or declined to read, or chose to ignore, the plain language of the documents served on him by registered mail. This amounts to wilful blindness at the very least. Numerous cases hold that wilful blindness is not sufficient reason to set aside a noting for default. In these circumstances the Court is not prepared to exercise its discretion in favour of setting aside the Director's certificate filed as a judgment of this Court.