S. Martinez

The defendants brought a motion to set aside their noting in default in an action for breach of a loan agreement.

The court found serious issues with the service of the statement of claim, noted the plaintiff's failure to seek an order for substituted service, and observed that the plaintiff precipitously noted the personal defendant in default shortly after indicating a willingness to consider an indulgence.

Applying the test from Intact v Kisel, the court exercised its discretion to set aside the noting in default and granted the defendants leave to deliver a statement of defence.

The applicant was convicted of second-degree murder by a jury.

Following the Court of Appeal's decision in R. v. Chouhan regarding the prospective application of the abolition of peremptory challenges, the applicant brought a motion for a mistrial, arguing the jury was improperly constituted.

The Superior Court dismissed the motion, holding that it was functus officio as the jury had already rendered its verdict and been discharged.

The court concluded that the case did not fall into the recognized exceptions allowing post-verdict changes, and the applicant's proper remedy was to appeal.