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 dismissed.

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver


Scott Kerwin


Aboriginal Law