J. Date: 20010628 Docket: S. H. No. 166282 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: BRIAN STEARS RESPONDENT/PLAINTIFF and BRIAN A. MacLEAN APPLICANT/DEFENDANT HEARD: At Halifax, Nova Scotia, in Chambers, before the Honourable Justice C. Richard Coughlan, on May 16th, 2001 DECISION: June 28th, 2001 (Orally) RELEASE OF DECISION: July 19th, 2001 COUNSEL: Michael F. LeBlanc, for the Applicant/Defendant Charles J. Ford and Rebecca Gasek (articled clerk), for the Applicant /Defendant (for oral decision only) Paul McLean, for the Respondent/Plaintiff Coughlan, J.: (Orally) [1] This is decision in the matter of S. H. No. 166282, Stears v. MacLean. This is an application by the defendant for an order setting aside default judgment pursuant to Civil Procedure Rule 12.06. have considered the defendant's affidavit, the affidavits of Wayne Smith, together with the defendant solicitor's pre‑hearing memorandum, oral submission and the cases to which have been referred. [2] The application is opposed and have reviewed the affidavits of Earl Spencer Colley and Kelly A. Rowlett, as well as the pre‑hearing memorandum, oral submissions and cases to which have been referred. [3] The originating notice (action) and statement of claim were issued on September 27th, 2000 and judgment was entered against the defendant on October 18th, 2000. An execution order was issued and the defendant's wages garnisheed. 1. Was service of the originating notice (action) and statement of claim effected on the defendant? 2. If the answer to the first issue is yes: (a) Does the defendant have fairly arguable defence or is there substantial issue to be tried between the parties? (b) Does the defendant have reasonable excuse for the delay in filing the defence? [4] The affidavit of Earl Spencer Colley sets out that he is retired Constable from the Dartmouth City Police and Halifax Regional Municipality Police Force. He was police officer for twenty‑five and half years. He was aware statement of claim requires personal service, and that he served the originating notice and statement of claim in this proceeding on the defendant on September 28th, 2000. Mr. Colley acknowledged that service was made on the defendant based on the affidavit of service he swore, but he has no recollection of the particular service on the defendant. He does recall one incident concerning service on Mr. MacLean but, as he served two originating notices on Mr. MacLean, he does not recall which of the services his recollection concerns. [5] The affidavits of Wayne Smith sets out he is co‑worker of Brian MacLean and on September 28th, 2000 at or about 12:30 p.m. person left an envelope with him to deliver to Brian MacLean. Mr. Smith had no knowledge of the contents of the envelope, left it on his manager's desk, got busy and forgot he had received the package. He states approximately three or four days later he remembered the incident, informed Mr. MacLean, who retrieved the package. [6] Having considered the evidence and submissions of counsel, I find that the originating notice (action) and statement of claim were served on Brian MacLean by Earl Spencer Colley on September 28th, 2000. Mr. Colley, an experienced retired police officer, swore an affidavit that he had served the documents on Mr. MacLean. He did not recall the circumstances of the particular service, but that is understandable given the number of documents he serves. [7] The test to be applied in an application to set aside default judgment pursuant to rule 12.06 is well established. In Ives v. Dewar (1948), 1948 CanLII 275 (NS CA), 23 M.P.R. 218 at 221, Parker, J. stated in giving the judgment of the Supreme Court, sitting en banco: Before the interlocutory judgment should have been set aside ..., it was necessary for the appellant to show by affidavit, facts which would indicate clearly that he had good defence to the action on the merits; not necessarily defence that would succeed at the trial because the action was not being tried on that application; but facts which would at least show beyond question that there was substantial issue between the parties to be tried. He must also show by affidavit why his defence was not filed and delivered within the time limited by the Rules. The reasons thus disclosed are immaterial matters which the judge or Court should consider in determining whether the application to set aside the judgment should be granted or refused. [8] This approach has been consistently followed in Nova Scotia. [9] In order to succeed in an application pursuant to Civil Procedure Rule 12.06, the defendant must demonstrate: (a) fairly arguable defence or substantial issue to be tried; (b) reasonable excuse for the delay or failure to file defence within the time requirements. [10] The plaintiff's claim is that Mr. MacLean's dog ran onto the Conrod Settlement Road in front of the plaintiffts motor vehicle forcing the vehicle into the ditch, with resultant damage, and that the accident was caused by Mr. MacLean's negligence in failing to keep his dog under control. [11] Paragraphs 3, and of Brian MacLean's affidavit deal with the issue of his defence to the action. Paragraph is statement that neither Brian MacLean nor his dog were responsible for the car accident. Paragraph is statement that there are several dogs in the general vicinity of his home that go on the road and the police had not laid any charges against him. In paragraph he states when he left for work the dog was on chain, sometimes children in the neighbourhood let his dog off the chain to play. Further his dog may have broken his chain. But to his knowledge the dog had never ventured onto the road. [12] find the defendant's affidavit does not set out acts upon which in the words of Ives v. Dewar would clearly indicate he had good defence to the action on the merits; not necessarily defence which would succeed at the trial because the action was not being tried on the application, but facts which would show beyond question that there was substantial issue between the parties to be tried. REASONS FOR DELAY [13] Mr. MacLean has not given any reasons for not filing a defence in this proceeding, other than his assertion that the originating notice (action) and statement of claim were not served on him. [14] note in paragraph of her affidavit, Kelly A. Rowlett states she and the defendant had discussion in which he stated he was not responsible for the accident and for Ms. Rowlett to go ahead and sue him as he did not have anything in any event. He looked further into the matter once his wages were garnisheed. [15] find Mr. MacLean has not shown by his affidavit why his defence was not filed and delivered within the time limited by the Rules. [16] For all of these reasons, the defendant's application is dismissed. [17] award costs to the plaintiff respondent in the amount of $500.00, payable forthwith. C. Richard Coughlan, J.
The respondent entered a default judgment against the applicant and issued an Execution Order. The applicant applied to have the default judgment set aside on the basis that the Originating Notice and Statement of Claim were never served upon him. Application dismissed; on the evidence the documents were served upon the applicant; even though the experienced process server had no independant recollection of service, he swore an affidavit of service which was accepted. The applicant did not meet the test of a fairly arguable defence and gave no other reasons for not filing a defence other than his allegation that the documents were not served upon him.