Henderson Heinrichs LLP

Fallout from a No-Show

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: November 26, 2010

Categorized: Case Analysis, Legislation Analysis.

Is there any difference between an order pronounced after a contested hearing and one ordered when one of the parties hasn’t attended?  The order itself is equally valid and binding in each circumstance.  If the order is later challenged, however, differences emerge.  Rule 14-7(77) of the BC Family Rules provides that, “The court my set aside a verdict or judgment obtained if a party does not attend the trial”  The test for setting aside an order is generally held to be the test set out in  Miracle Feeds v. D&H Enterprises Ltd. 1979 CarswellBC 48, 10 BCLR 58 which provides that that the party seeking to have the order set aside must show that:

  1. That he did not willfully or deliberately fail to enter an appearance or file a defence to the plaintiff’s claim;
  2. That he made application to set aside the default judgment as soon as reasonably possible after obtaining knowledge of the default judgment, or give an explanation for any delay in the application being brought
  3. That he has a meritorious defence or at least a defence worthy of investigation; and,
  4. That the foregoing requirements will be established to the satisfaction of the court through affidavit material filed by or on behalf of the defendant.

Until that application comes before the court and unless the order is set aside, it is fully valid.  But an order obtained in a contested application is not subject to this provision.  In the end, it’s probably a wash given that it’s generally a little easier to get an order when no one is opposing you.

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