IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Colbourne v. MacLean, 2005 NSSC 324
Date: 20051209 Docket: S.P. No. 06800
Registry: Pictou
Between:
William George Colbourne and Lynn Colbourne
-and-
Joseph Gregory MacLean, Mary Ella MacLean and
Chrysler Credit Canada Ltd.
LIBRARY HEADING
Judge: The Honourable Justice Robert W. Wright
Heard: October 27, 2005 at Pictou, Nova Scotia
Written
Decision: December 9, 2005
Subject: Civil Procedure - whether a defendant can invoke pre-trial procedures for purposes of an assessment of damages after allowing a default judgment to be entered - interpretation of Civil Procedure Rules 12.08 and 33.02.
Summary: This application arose in a rear end motor vehicle case where the insurer for the defendants inadvertently allowed a default judgment to be entered against its insureds prior to its retention of counsel. Subsequently, an agreement was reached between counsel for both sides whereby the default judgment would remain in place and the parties would proceed with certain pre-trial procedures on the understanding that they would be left to later argue their positions on the effect of the default judgment.
Under this arrangement, plaintiff’s counsel facilitated the oral discovery examinations of the plaintiff and her family physician and also provided the plaintiff’s list of documents and expert reports. When defence counsel then sought to conduct a supplementary discovery of the plaintiff (based on the recent production of documents) and an independent medical examination, plaintiff’s counsel drew the line at his client’s cooperation, asserting that the defendants had no right to engage in any pre-trial procedures in light of the default judgment and, by extension, no right to use any of the existing evidence obtained against his reserved position at the assessment of damages hearing.
Issue: (1) Should the default judgment be set aside, taking into account the post-judgment agreement reached between counsel; and
(2) If the default judgment is not set aside, can the defendants invoke pre-trial procedures for purposes of an assessment of damages?
Result: As to the first issue, regardless of the merits of an Ives v. Dewar analysis, the court refused to set aside the default judgment, taking into account the agreement reached between counsel that the action would proceed with the default judgment remaining in place.
As to the second issue, Civil Procedure Rules 12.08 and 33.02 do not contemplate an automatic right on the part of a defaulting defendant to invoke various pre-trial procedures. However, that does not prevent the court from exercising its discretion to allow a defendant to engage in appropriate pre-trial procedures to ensure a fair hearing on the assessment of damages. Here, the court was satisfied that there was a live arguable issue as to the extent of the causal relationship between the occurrence of the accident and the plaintiff’s current medical condition for which she sought compensation. To ensure a full and fair hearing on that issue, and in the absence of any real prejudice to the plaintiff, the court exercised its discretion to allow the two further pre-trial procedures sought by the defendants for purposes of the assessment of damages hearing.
The court also directed that defence counsel would be entitled to use, at the assessment of damages hearing, the existing discovery evidence and the plaintiff’s document production pertaining to damages issues, subject to rulings of admissibility by the presiding Chambers judge.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THE COVER SHEET.