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Default judgment upheld where defendant claimed he was never served

If the defendant fails to file a defence and I get default judgment against him as a result, will a last minute application change that?

In a decision this week from the British Columbia Supreme Court (Marshall v. McCormick, 2018 BCSC 1398), the plaintiff, Brandon Marshall, was injured when he was assaulted by the defendant at a work party. The defendant allegedly “sucker-punched” his face with 2-3 blows causing injury to the eye area. The defendant, Brian McCormick, plead guilty to the criminal assault charges. Mr. Marshall also sued him in civil court for the losses he suffered as a result of the assault.

To sue someone, you must file a Notice of Civil Claim and then serve that Notice on the person you are suing – which essentially alerts them to the lawsuit. There are strict time limits for commencing litigation, and I recommend consulting a lawyer whenever litigation is contemplated. Defendants who are sued, and properly served with the documents must defend themselves with a Response to Civil Claim (again, strict time limits apply). Failure to defend against a claim can result in default judgement (i.e. if you don’t respond, the court will conclude the allegations are true).

Back to our facts… Mr. Marshall filed the Notice of Civil Claim on March 6, 2014. He then hired a process server, to serve the documents on Mr. McCormick. The process server provided an affidavit detailing the service of Mr. McCormick on March 28, 2014. Mr. McCormick failed to respond to the lawsuit, and Mr. Marshall took default judgment against him, leaving only the amount of damages to be decided by the court. In this week’s decision, Mr. McCormick applied to the court to set aside the default judgment, baldly denying that he was served with the Notice of Civil Claim. According to him, he was only alerted to the lawsuit in May 2018 when he was served with documents – and at that time scrambled to find a lawyer to defend him. He argued that he had defences – such as the possibility that somebody else also punched Mr. Marshall – and that default judgment should be set aside.

In evaluating his arguments, Madam Justice Maisonville set out the three factors for consideration in whether to set aside default judgment: (1) whether the defendant wilfully or deliberately failed to file a defence; (2) whether they applied to set aside the default as soon as reasonably possible; and (3) whether the defendant has a meritorious defence or at least a defence worthy of investigation. She was not satisfied that default should be set aside here, making the following findings:

[20]         Before the court here, the issues that were strongly urged upon the court were simply that Mr. McCormick was not served.  However, no more was said about this and in the face of the affidavit of service, it was simply a bald assertion.  There could have been an explanation for why, including, for example, that it was a long time ago, but none of that was before the court.

[21]         Another matter that I must consider is setting aside the default judgment.  I find that Mr. McCormick did take action to try to appear and finally this matter is being brought two weeks before the trial date. 

[22]         As for factor number 3, the meritorious defence, I find that no meritorious defence has been advanced in this case.  I have heard the very thoughtful and excellent submissions by Mr. Truong appearing as agent for Mr. Sorensen, counsel for Mr. McCormick, trying to persuade this court that there is a defence being advanced by Mr. McCormick. 

[23]         However, what I hear instead all relate to matters that would arise on an assessment of damages.  There is no defence being asserted in terms of liability for this matter.  The fact that Mr. McCormick indeed pleaded guilty to this offence is an admission that is before the court.  He has pleaded guilty and that would not have occurred if there was no liability in relation to this matter. 

[24]         Mr. McCormick does assert that there was another individual who may have thrown a punch at the plaintiff in this assault.  However, that would not be a defence to the liability of Mr. McCormick on the matter proper, nor is mitigation a failure to mitigate anything to do in relation to liability and rather goes to the assessment of damages.  I understand all of these issues, though, are sought by Mr. McCormick to be advanced particularly at the assessment-of-damages stage.

[26]         In all of the circumstances, I am not persuaded that it is appropriate for me to exercise my discretion to set aside the default judgment, particularly on the basis that there is no meritorious defence here or a defence worthy of investigation.  What I am hearing, as noted, are issues that would relate to the assessment of damages. 

She did order that the trial be pushed back to allow Mr. McCormick’s newly appointed lawyer time to prepare the defence and fully argue the considerations about damages.

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