Executive Summary: Key Legal and Evidentiary Issues

• Whether the Chambers judge erred by treating all four Rule 10-13 factors as mandatory prerequisites, rather than considerations to be weighed cumulatively, was the central legal question on appeal.

• Identity formed the core evidentiary dispute, as Ms. Piecowye denied being the person who entered the agreement, used the Visa access card, or received any account statements.

• Conflicting address evidence — statements mailed to an Avenue J South address versus her long-held Needham Crescent residence — raised doubt about whether she was in fact the account holder.

• BNS produced no agreement bearing Ms. Piecowye's signature, relying instead on undated or unsigned documents and a Transit Change Request that she said did not carry her signature.

• A limitation defence under The Limitations Act was pleaded, adding a further arguable issue as to whether the claim was statute-barred.

• Procedural fairness was engaged because judgment was effectively granted at the initial appearance in her absence, and BNS did not participate in the appeal at all.

Facts of the case

In 1998, an individual purporting to be Betty Ann Piecowye entered into a line of credit agreement with the Bank of Nova Scotia (BNS), and a Visa access card was provided to use that line of credit. Over the years, purchases were made and payments were applied, with monthly statements sent to the address provided by the individual who entered the agreement. The balance accumulated and, at some point, payments stopped. On June 24, 2020, BNS issued a statement of claim alleging that Ms. Piecowye was in default and owed $46,363.86 plus accruing interest. She retained counsel and filed a statement of defence and counterclaim on November 5, 2021, denying that she had entered the agreement, used the line of credit or the access card, or owed any money, and pleading that the claim was barred by The Limitations Act, SS 2004, c L-16.1. Her counsel withdrew on November 15, 2021, and she did not respond to subsequent communications or attend the mandatory mediation on April 5, 2022. BNS applied for summary judgment on September 5, 2024, and served the application on her personally on September 20, 2024. She filed nothing and did not attend, and Elson J. granted judgment in BNS's favour, with the order issued on February 4, 2025. In March 2025, after receiving notice that a writ of execution had been registered against the title to her residence, she retained new counsel and applied on June 3, 2025, to set the judgment aside. That application was dismissed (2025 SKKB 116), and she appealed.

Policy terms and contractual clauses at issue

The dispute centred on the alleged line of credit agreement and the associated Visa access card. The Judgment fixed the amount claimed at $46,363.86, with pre-judgment interest at the contractual rate of 24.99% running from November 27, 2019 (stated as the date of default), and post-judgment interest at the same contractual rate of 24.99% per annum, with costs to be assessed. A key evidentiary feature was the absence of any signed agreement: the only agreement filed on the summary judgment application was a January 2016 Personal Credit Agreement Companion Booklet, dated 17.5 years after the agreement was allegedly signed and containing no place for a signature. On the set-aside application, BNS filed an unsigned and undated Scotiabank Credit Cardholder agreement, which provided that continued use of the account constitutes acceptance of the terms of any amended agreement. BNS also produced a Transit Change Request said to have been signed by Ms. Piecowye on April 7, 2016, which she maintained did not bear her signature. The limitation defence rested on the statutory framework of The Limitations Act rather than on a contractual clause.

The court's reasoning and analysis

The Court of Appeal first noted the unusual and possibly unprecedented non-participation of BNS, whose counsel did not respond to repeated communications and did not appear at the appeal, leaving the Court without any opposing argument. On the merits, the Court held that the Chambers judge erred in law by stating that Ms. Piecowye had to establish all four of the Rule 10-13 factors plus exceptional circumstances. The correct approach is to weigh the four factors cumulatively within an overall context of fairness and equity, with the merit of the defence being the dominant consideration in the absence of irreparable prejudice; only in limited situations (such as a wilful default) can a single factor be determinative. Because the Chambers judge made no finding of wilful default yet treated the explanation factor as fatal, the error affected the outcome. Re-evaluating the factors, the Court found that Ms. Piecowye acted expeditiously; that while her explanation for not responding was not accepted, her conduct fell short of wilful default and so was not dispositive; that she had raised a strong arguable defence supported by evidence that she was not the person who contracted with BNS, together with a further arguable limitation defence; and that there was no discernible prejudice to BNS. The Court also found, on a close call, that exceptional circumstances existed through a combination of factors, including the strength of the identity defence, the death of her husband shortly before service, the significance of the amount to her, BNS's lack of dispatch, and the judgment's resemblance to a default judgment.

Ruling and overall outcome

The appeal was allowed and the judgment against Ms. Piecowye for $46,363.86 plus interest was set aside in its entirety, the Court concluding it was fair and equitable to do so. The Court declined to set aside the writ of execution because there was insufficient information in the appeal book about it, but did so without prejudice to her ability to seek that relief in the Court of King's Bench. The successful party was the appellant, Ms. Piecowye, who was awarded her costs of the appeal payable by BNS on Column 2 of the Tariff of Costs; no specific dollar figure for those costs was fixed in the decision, and no costs were ordered for the Chambers application.