The defendant Roberts Bros.
Sheet Metal Contractors Ltd. (RBSMC) brought a motion to set aside a noting in default and permit the filing of a statement of defence and crossclaim.
The court declined to sign the requested order because RBSMC failed to comply with Rule 37.12.1(3) of the Rules of Civil Procedure, which requires a notice of non-opposition from all responding parties for an "unopposed" motion to proceed in writing.
The court emphasized that co-defendants are also affected parties, particularly when crossclaims are contemplated, and their formal non-opposition is necessary, unlike the simpler procedure under Rule 19.03(2) which relies solely on plaintiff consent.
The court provided guidance on alternative procedural routes for RBSMC to pursue the motion.
