Most Canadians would likely agree that we live in a fair and democratic society with a good rule of law. Within such a societal structure, one should expect to have the power to decide when to sell their own home. How would you feel if you discovered that there is an application in court to sell your home, arising from a court case you knew next to nothing about?
The Potential Situation for Kelowna Homeowners
Imagine you are a homeowner and your friend sues you but you have little knowledge of the claims against you. You received the notice of civil claim a few years ago but did not file a response. Before you know it, a judgment has been granted to your former friend in the sum of over $100,000 and that former friend is trying to have your house sold to in order to get paid.
Sound outlandish, even unbelievable?
This actually happened to someone who found herself at risk of losing her home in circumstances where she believed the plaintiff’s claim was completely baseless. The case Saunders v. Churchill, was reported here.
The path for her to extricate herself from her position was a difficult one. In fact, very few cases could be found where individuals in her position had successfully done so. Here, the plaintiff even argued that she could not, at this stage, even make the court application. So the important points lie first in how to avoid placing yourself in that position and second what to do if you end up in it.
How to Avoid This Situation in British Columbia
Firstly, court proceedings in British Columbia are governed by a strict set of rules. At times, those rules can be fairly unforgiving if you miss a step. So, if you are served with a notice of civil claim, petition, notice of application or notice of family claim, you need to seek legal advice without delay. You normally have 21 days to file a response. A failure to do so could result in the other party obtaining judgment against you.
However, as this defendant found out, it is not enough to just seek legal advice. You need to follow through and file a document in court indicating you oppose the relief sought to prevent default judgment. It is here that this defendant first ran into troubles.
Doak Shirreff’s Legal Advice: Don’t Ignore a Lawsuit
At all points, ignoring a lawsuit is a bad idea. Life throws us curveballs once in a while and it can be tempting to avoid an issue instead of facing it head-on. You may even have other, more important issues on the go, but the court is generally unforgiving. A failure to respond can deprive you of the opportunity to contest whether the allegations being made against you are true. Your best course of action is to retain competent counsel. If you fail to do so promptly, every day that passes turns the potentially simple issue at hand into a more difficult situation.
In this case, it took the plaintiff a full-day hearing in court and written submissions from her lawyer to convince the judge to set aside the default judgment. It involved expense and uncertainty and the very real risk that the application would be denied. The test applied by the judge included considering whether the defendant was blameworthy for the delay, whether she applied as soon as reasonably possible to set aside the judgment and whether she had an arguable defence. Actual evidence was needed to show this, not mere statements in an affidavit. The bar was set high which is the reason many people lose on these applications.
Part of living in a developed society means that the court system only gives people so many chances to respond to a lawsuit. The legal system can be a blunt instrument. Your best course of action is to retain a competent law team at the outset. Avoid risking your security and assets by allowing a professional to deal with the situation at hand.
Have you received notice of a civil claim? Contact our office today to discover the best course of action for your specific situation!
By: Michael Sinclair and Maris Holmes