Oct 14, 2020

Civil Litigation: Opening Up a Noting In Default

Fort McKay Métis Community Association v Morin, 2020 ABCA 311 (CanLII)

Keywords: defamatory comments; Facebook; opening up a noting in default

Synopsis:

The Appellant, Corey-Ann Pruden Morin, is a candidate for presidency of the Métis Nations of Alberta Association. She operates an open Facebook page called “Métis Voices of Alberta”. The Appellant posts alleged defamatory statements on her Facebook page about the Respondents.

The Respondent, Ron Riel Quintal is also a candidate for the presidency of the Métis Nations of Alberta Association. The Respondent, Fort McKay Métis Community Association, is a not-for-profit society for the advancement of the interests of the Métis people in the Fort McKay area, and is associated with the Métis Nations of Alberta Association.

The Court of Appeal summarized the alleged defamatory statements as follows:

“…posting of a video by an elder, who was dissatisfied with transactions respecting her housing. The Fort McKay Métis Community Association received funding to improve housing, but this funding could not be used to benefit individuals; houses to be improved had to be community owned: reasons at para. 8. The Community Association accordingly purchased the elder’s house for $35,000, spent $172,000 renovating it, and then allowed the elder to live in it rent free: reasons at para. 27. The appellant placed on the Facebook page a video of the elder suggesting that she had been unfairly dealt with, to which the appellant added that the elder had been ‘swindled by fort McKay community Association’: reasons at para. 15.” (See para. 4).

  • “…allegations that the respondent Quintal had engaged in election irregularities, including improper payments to influence the voting…that ineligible persons had been allowed to vote.” (See para. 5).
  • “…the suggestion that a sexual assault had been ‘covered up’ by the Community Association, and that the complainant had been paid $10,000 ‘to keep her mouth shut’.” (See para. 6).
  • “…allegations of swindling, cheating, ‘paying off people to vote’, bribery, and bullying.” (See para. 7).

Following correspondence from the Respondents’ counsel, the Appellant declines to “cease and desist”; posts further messages on Facebook. (See para. 8). The Respondents issue a statement of claim. The Appellant acknowledges receipt, acknowledged she had to respond within 20 days, later reminded of the deadline, given extra time; fails to respond and is noted in default. (See para. 9). Later, the Appellant retains counsel and brings an application to open up the noting in default. (See para. 10).

The Chambers Judge concludes the Appellant does not provide a satisfactory explanation for being noted in default. The Court of Appeal agrees.

Importance:

The Court of Appeal referred to three criteria as set out by the Court in Kraushar v Kraushar, 2019 ABCA 186: (a) an arguable defence; (b) that the defendant did not intend to allow the judgment to go by default and offers some reasonable excuse for the default such as illness or a solicitor’s inadvertence; and, (c) that once the noting in default came to the defendant’s attention, they promptly applied to set it aside. (See para. 11).

The Court of Appeal also noted that the decision to reopen or not involves “discretion”, since Rule 9.15(3)(a) says the Court may open up a noting in default “on any terms the Court considers just”. (See para. 11).

For the Court of Appeal, “[t]he most important of the criteria…is the presence of absence of an arguable defence”. (See para. 14). In this case, the Court was not satisfied there was evidence to demonstrate the defamatory statements were true:

There was no evidence that the elder’s housing was dealt with in any improper way. There was no evidence of a sexual assault, or of any payment to a complainant, or of any impropriety in any such payment (assuming payment was made). There was no evidence of any election improprieties. (See para. 15).

The Court of Appeal rejected the Appellant’s submission that she was “searching for documents and other evidence”, affirming the proposition that “[m]ere allegations that a defence may emerge are not sufficient”, as explained in Weir-Jones Technical Services Inc v Purolator Courier Ltd, 2019 ABCA 49 at para. 37. (See para. 16).

In its conclusion, the Court of Appeal qualified the effect of the noting in default. For the Court of Appeal, the “deemed admission of liability…should not extend to quantification of the damages”. As such, the Appellant is entitled to participate in the assessment of damages. Significantly, the Court of Appeal informed the parties about “judicial dispute resolution services” and asked that this option be considered: “In the context of this dispute occurring within a specific community where there are ongoing relationships, we urge the parties to consider this option”. (See para. 18).

Counsel for the Respondents: Stephanie Cousineau (Maurice Law Barristers & Solicitors, Calgary)

Counsel for the Appellant: Corey-Ann Morin, in Person