The Supreme Court of British Columbia dismissed an application
by the Skidegate First Nation Band to set aside a default judgment
obtained against it.
The plaintiff Harding filed a claim in April 2011 for breach of
contract. She alleged that she had been hired by the Band in 2009
as a hosting director at a heritage centre, and that the Band
Council fired her without notice in August 2009. In July
2012, she obtained default judgment, and the damages were later
assessed at approximately $20,296 plus costs and disbursements.
The defendant Band applied to have the default judgment set
aside. Applying the familiar test from Miracle Feeds, the
factors for the Court to consider include: whether the failure of
the Band to file a defence was willful or deliberate; whether the
Band acted without delay to set aside the default judgment; and,
whether there is a meritorious defence.
Mr. Justice Neill Brown held that the Band did not satisfy the
Miracle Feeds test. In regards to the first prong of the
test, the Court held that the Band's failure to file a defence
was deliberate. It had been properly served with the claim. Even
though the Band took the position that it was improperly named as a
defendant, and that the plaintiff's employer was actually the
Qay'llnagaay Heritage Centre Society, it chose not to respond
or contact the plaintiff. The Court also took into account that the
Band was not an unsophisticated party with no experience in legal
matters. There was evidence that it had been engaged in a
significant amount of litigation.
The Band argued that it had a meritorious defence because there
was no contract with the plaintiff or, in the alternative, the
person who dealt with the plaintiff (Mr. Alsop) had no authority to
enter into a contract on behalf of the Band. The Court held that
the materials filed by the Band fell well short of supporting such
assertions. Time sheets and pay stubs indicated that the Band was
the plaintiff's employer. The Court also held that Mr. Alsop
had the actual authority to hire the plaintiff. It was therefore
not necessary to resolve the "two diverging lines of
authority" concerning Indian bands and "ostensible
authority" recently discussed by Mr. Justice Betton in
Clayton v. Lower Nicola Indian Band, 2013 BCSC 162
[summarized in our e-Newsletter of 17 April 2013].
The Court held that, in order to satisfy the Miracle
Feeds test, the Band was required to present more than bare
denials or assertions of material facts. The evidence adduced on
this application did not even show a slim chance of success.
The application to set aside the default judgment was therefore
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