David Gorman

Following a motion to strike a statement of claim or dismiss or stay the action on the basis that it disclosed no reasonable cause of action and was frivolous or vexatious, the parties reached a consent resolution during the hearing whereby the plaintiff agreed to produce an amended statement of claim.

Both sides subsequently sought costs of the motion.

The court noted that the dispute arose partly because correspondence requesting particulars had not been received and that the matter could likely have been resolved without court proceedings had counsel communicated more effectively.

Given the mixed outcome and avoidable litigation steps, the court held that each side should bear its own costs.

The defendant brought a motion seeking to set aside a noting of default after failing to deliver a statement of defence in time.

The court applied the factors governing the exercise of discretion under Rule 19 of the Rules of Civil Procedure, including intention to defend, explanation for delay, promptness of the motion, and prejudice to the plaintiff.

The court found credible evidence that the defendant intended to defend the claim, noting the earlier filing of a Notice of Intent to Defend and subsequent efforts to retain counsel.

Although the explanation for delay in retaining counsel lacked detail, the court held the delay was not inordinate and the motion was brought with reasonable dispatch.

As no prejudice to the plaintiff was demonstrated, the court set aside the noting of default.