What is the effect of the word "wilful delay or default" in Rule 52(5) of Rule 52 of the Rules of Appeal?

British Columbia, Canada


The following excerpt is from Miranda v. Miranda, 1996 CanLII 1631 (BC CA):

The chambers judge properly instructed himself on the effect of the leading case of Anderson v. Toronto-Dominion Bank (1986), 70 B.C.L.R. 267 (B.C.C.A.). The head note sufficiently provides the judicial construction to be given to the word "wilful" in the clause "not guilty of wilful default or delay" in subrule (5) of Rule 52: Rule 52(5) gives the court the power to set aside an ex parte order if it is satisfied that the party failing to attend is not "guilty of wilful delay or default". The phrase "guilty of wilful delay or default" carried with it the sense of a blameworthy action. The failure may be "purposeful, deliberate or intentional" but, depending on the circumstance, it may not be blameworthy. The respondent's failure to oppose the petitions was intentional but not blameworthy. She provided a reasonable explanation for her failure to defend and her affidavit evidence raised an arguable case that ought to be tried.

Other Questions


What is the effect of Rule 37 of the Rules of Appeal Rule 37 on a motion of appeal? (British Columbia, Canada)
Does an order made pursuant to rule 9-7(15) of the Rules of Appeal Rule 2.1 require leave to appeal? (British Columbia, Canada)
What is the effect of Rule 30 of the Rule 40A of the Rules of Civil Procedure on an application for a medical examination that comes three weeks before trial? (British Columbia, Canada)
What is the effect of Rule 38 of the Rules of Civil Procedure on Rule 40? (British Columbia, Canada)
Does Rule 2.1 of the Rules of Appeal apply to an order made by the Court of Appeal? (British Columbia, Canada)
What is the standard of review under s. 59(1) of the Rules of Appeal Court of Appeal for a motion of appeal against the decision of a judge on a question of mixed fact and law? (British Columbia, Canada)
What is the impact of Rule 37B of the BC Rules of Civil Procedure and Procedure on Rule 37 B of the Rules of Procedure? (British Columbia, Canada)
What is the effect of the Appendix B amendment to the Rules of Civil Procedure and Procedure to the Court of Appeal on costs? (British Columbia, Canada)
Does the phrase “not guilty of wilful delay or default” carry with it the concept of blameworthiness? (British Columbia, Canada)
How have the courts dealt with motions under Rule 34 and Rule 19(24)(a) of the Rules of Civil Procedure in a personal injury action? (British Columbia, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.