



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Daignault 
          v. Gueldner,







2007 
          BCCA 40



Date: 20070118





Docket: CA033805

Between:

Norman 
    Daignault

Appellant

(
Petitioner
)

And

Bradley 
    Alan Gueldner and Dana Darlene Gueldner

Respondents

(
Respondents
)




Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Donald




The 
          Honourable Mr. Justice Low



Oral Reasons for Judgment




D.R. 
          Thompson


Counsel for the Appellant




M.J. 
          Meyers


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




18 January 2007



[1]

LOW, J.A.
: This is an appeal of an order made by Arnold-Bailey 
    J. on 10 February 2006 setting aside an order she had made on 5 August 2005 
    granting relief in a petition brought by the appellant for an order that the 
    respondents remove certain old buildings that substantially encroach on the 
    petitioners property.

[2]

The appellant raises four grounds of appeal: (1) that the chambers 
    judge erred in finding that there had not been effective service of the petition 
    on the respondent Bradley Alan Gueldner; (2) that the judge erred in determining 
    that there had not been a wilful failure on the part of the respondents to 
    enter an appearance to the petition within time and wrongly inferred that 
    the failure was not wilful; (3) that the judge erred in finding that the respondents 
    moved to set aside the order within a reasonable time after learning that 
    it had been made; and (4) that the judge erred in considering the merits of 
    the respondents defence to the petition.

[3]

As to the first ground of appeal, the chambers judge, after hearing
viva voce
evidence from the process server and from the respondents, 
    determined that the process server was clearly mistaken in swearing that Bradley 
    Gueldner was the man she had served at the same time as she served his wife.  
    The appellant does not challenge this factual finding but says that service 
    on Bradley Gueldner was effected when his wife showed him the petition.

[4]

It is arguable that Bradley Gueldner, because he was not personally 
    served, was entitled as of right to have the order set aside as against him.  
    If Bradley Gueldner had been the only respondent it seems clear to me that, 
    in the absence of an order for substituted service, he would have had that 
    right.  Where personal service is required, it must be effected for subsequent 
    proceedings to be lawful.  I am not sure that it makes any difference when 
    the respondent who has been personally served brings the proceedings to the 
    attention of the respondent who has not been personally served.  But the chambers 
    judge did not determine this matter on that point.  Rather she decided the 
    issue on the basis of the requirements set out by Hinds C.C.J., as he then 
    was, in
Miracle Feeds v. D.H. Enterprise Limited
(1979), 10 
    B.C.L.R. 58.  She analysed the situation on the assumption that Bradley Gueldner 
    had been personally served.  Therefore, even if there was some merit to the 
    first ground of appeal it would avail the appellant nothing.

[5]

The second and third grounds of appeal require a discussion of the 
    sequence of events from the filing of the petition to the application to have 
    it set aside.  Counsel for the appellant filed the petition on 19 July 2005.  
    It was served on Dana Gueldner on July 21
st
.  The respondents met 
    with their lawyer on July 27
th
, the first day he was available.

[6]

Under R. 14(3) of the
Rules of Court
, the respondents 
    had seven days from the date of service to file an appearance.  On July 28
th
, 
    the seventh day, counsel for the appellant searched the registry and determined 
    that no appearance had been filed.  On August 3
rd
counsel for the 
    respondents filed an appearance dated July 27
th
but did not deliver 
    it to the other side.  On August 4
th
, counsel for the appellant 
    filed a notice of hearing of the petition returnable the next day in apparent 
    compliance with the applicable provisions of R. 51A.  On August 5
th
, 
    the chambers judge, relying on the affidavit of the process server that both 
    respondents named in the petition had been served, made the order granting 
    the relief sought in the petition.  It is likely that the appearance, although 
    filed in the registry, had not yet found its way to the court file.

[7]

On August 10
th
counsel for the respondent delivered the 
    appearance to counsel for the appellant.  Respondents counsel received a 
    draft copy of the August 5
th
order on or about August 12
th
and was served with an entered copy on August 22
nd
.

[8]

On August 29
th
, another counsel filed a notice of change 
    of solicitor, the two respondent counsel being in the same law firm.  On August 
    31
st
she delivered a notice of motion to set aside the August 5
th
order and it was the hearing of this motion several months later that gave 
    rise to the order under appeal.  In the meantime, on September 1
st
the respondents brought an appeal to this Court of the August 5
th
order and also filed a petition seeking equitable relief with respect to the 
    encroachments under s. 36 of the
Property Law Act
, R.S.B.C. 
    1996, c. 37, as amended.

[9]

The thrust of the argument on the second ground of appeal is that the 
    respondents did not prove that their delay in filing an appearance was not 
    wilful or deliberate under the first part of the test in
Miracle Feeds
.  
    The appellant argues that there is no explanation in evidence from the lawyer 
    the respondents initially consulted as to why he did not file the appearance 
    in time and why it took him another week to deliver it to the other side rather 
    than forthwith as required by R. 14(1)(b).  Therefore, the argument continues, 
    it must be concluded that the respondents deliberately did not file and deliver 
    the appearance as required by the rules.

[10]

It is conceded in the appellants factum that if there had been an 
    admission by the respondents first lawyer that he alone was the cause of 
    the delay the order of 5 August 2005 would almost certainly have been set 
    aside.  I take this to mean that had there been such evidence there would 
    have been no appeal.

[11]

A complete answer to this argument is found in the evidence of the 
    respondents and in the reasons of the trial judge.  The respondents testified 
    that they consulted their lawyer at the first available opportunity and relied 
    on him to protect their interests.  They obviously intended to oppose the 
    petition on the merits.  It cannot be said that the relatively short procedural 
    delay was the product of wilfulness on their part.

[12]

The chambers judge dealt with this point clearly.  After noting that 
    there was no evidence given as to why the lawyer did not act more promptly, 
    the judge said this:

[24]      . . . I simply point out that it is not the Gueldners' fault 
    in terms of them simply ignoring the matter.  It is also worth noting that 
    the Gueldners did not attempt to either delay responding or in any way fail 
    to address the proceedings because, in fact, although Mr. Bradley Gueldner 
    was not personally served, his wife brought it to his attention and the two 
    of them acted within a reasonable time to deal with it.  I cannot find on 
    the evidence before me that they either wilfully or deliberately failed to 
    enter an appearance or file a defence of the claim.

[13]

There was substantial evidence to support this conclusion.  The delay 
    in filing and delivering the appearance could not be found to be the fault 
    of the respondents themselves.  I see no merit in the second ground of appeal.

[14]

On the third ground of appeal it is argued that the respondents did 
    not act, as stated in the second part of the
Miracle Feeds
test, 
    as soon as reasonably possible after obtaining knowledge of the default judgment 
    and did not give an explanation for any delay in the application being brought.

[15]

As already noted, the respondents received the entered order on 22 
    August 2005.  Their counsel served the motion to set it aside nine days later.  
    In my opinion, this was a prompt response well within the test.

[16]

Although not pressed on the hearing today, the final ground of appeal 
    concerns the merits of the proposed opposition to the appellants petition.  
    It does not seem to be in issue that two buildings on the respondents property 
    substantially encroach on the appellants adjacent property.  Apparently there 
    has been an issue between the parties for some time as to what could or should 
    be done about it.  So the case comes down to the proper remedy.  The respondents 
    make a case that removal of the buildings, the only remedy sought in the appellants 
    petition, is not the appropriate remedy and that a transfer of part of the 
    appellants property to the respondents, or an easement over it, under the
Property Law Act
is appropriate.

[17]

One of the buildings is a barn leased to tenants who board horses. 
     The other building is a shed that houses a pump and other equipment used 
    to supply water to three families from a well on the respondents property.  
    The respondents say they have made extensive repairs to both buildings.  It 
    is said that removal or alterations to these buildings would be costly.

[18]

It is clear to me that there is arguable merit to the assertion of 
    the respondents that the appropriate remedy is other than that sought by the 
    appellant in his petition.  The chambers judge did not err in finding that 
    the evidence meets the third part of the test in
Miracle Feeds
.

[19]

I would dismiss the appeal with costs to the respondents.

[20]

FINCH, C.J.B.C.
: I agree.

[21]

DONALD, J.A.
: I agree.

[22]

FINCH, C.J.B.C.
: The appeal is dismissed.

The Honourable Mr. Justice Low


