The defendants brought a motion under Rule 19.03(1) of the Rules of Civil Procedure to set aside a registrar’s noting of default entered at the plaintiff’s request in a motor vehicle personal injury action.
The court applied the factors set out in Bardmore, including the parties’ conduct, length and reasons for delay, complexity and value of the claim, and potential prejudice.
Although the defendants’ insurer delayed retaining counsel and delivering a defence, the court found the three‑month delay was not excessive and there was no evidence of non‑compensable prejudice to the plaintiff.
The court therefore exercised its discretion to set aside the noting in default on terms requiring prompt litigation steps.
Despite their success, the defendants were ordered to pay the plaintiff’s motion costs as the relief constituted an indulgence.
