The defendants moved to set aside a noting in default in a wrongful dismissal action brought by a former employee of the South African High Commission in Ottawa.
They also sought to strike the statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action and alternatively to dismiss or stay the action for lack of jurisdiction under the State Immunity Act.
Applying the factors for setting aside default from Nobosoft Corp. v No Borders Inc., the court found a continuing intention by the foreign state to defend on issues of party capacity and sovereign immunity, and determined the delay was not inordinate given the complexity of the issues and the value of the claim.
The court further held that it was not plain and obvious that the defendants lacked capacity to be sued or that the commercial activity exception under the State Immunity Act could not apply to the plaintiff’s employment relationship.
Accordingly, the default was set aside but the motions to strike the claim and dismiss the action for lack of jurisdiction were refused.
