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.
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