Executive Summary: Key Legal and Evidentiary Issues

• Milan Zorkic and Zarka Zorkic sought retraction of a default judgment rendered against them on 16 March 2026 by Justice Paul Mayer.
• The Municipality of Chelsea alleged that the defendants violated zoning and public nuisance bylaws by storing approximately a hundred non-functional vehicles, vehicle carcasses, tires, mufflers, and debris on their property, and by illegally installing four temporary shelters.
• Procedural grounds for retraction were found acceptable, as the defendants genuinely intended to attend the hearing but were unable to reach the courthouse and failed to connect to the correct virtual hearing room.
• Despite sufficient grounds for retraction, the application was ultimately rejected because the defendants failed to raise any defence on the merits at any prior stage of the proceedings.
• Courts require that a retraction application include not only grounds for retraction but also defensible and serious means of defence, as mandated by Article 346 of the Code of Civil Procedure.
• Having been informed of the consequences of their default and never having sought relief from it, the defendants could not raise new defences for the first time in a retraction application.

Facts of the case

Milan Zorkic and Zarka Zorkic have owned a property in the Municipality of Chelsea since 15 July 2020. The Municipality alleged that the defendants contravened its zoning bylaw and public nuisance bylaw by storing approximately a hundred non-operational road vehicles, vehicle carcasses, tires, mufflers, and other debris on their property, and by illegally installing four temporary shelters used for storage. On 5 June 2023, the Municipality issued a notice of infraction directing the defendants to comply with municipal regulations. A formal demand followed on 19 April 2024, requiring the defendants to clean the property, dismantle the temporary shelters, and remove the nuisances. When the defendants failed to file any defence, the Municipality introduced proceedings on 4 October 2024 under the Act Respecting Land Use Planning and Development (LAU) and the Municipal Powers Act (LCM), seeking court orders compelling compliance and authorizing the Municipality to carry out the remediation works itself at the defendants' expense, with those costs to be treated as a real property tax lien on the property.

Procedural background and the default judgment

The defendants filed a response to the proceedings on 18 October 2024 but never produced any means of defence. On 31 March 2025, the Municipality served a motion for default judgment, returnable 1 May 2025. At the 1 May 2025 hearing, Justice Anne-France Gagnon noted the defendants were unrepresented and had filed no defence, and she referred them to free legal consultation resources. On 5 June 2025, the defendants advised the court they had an appointment with legal aid to assess their eligibility. Justice Jean Faullem adjourned the matter to 16 July 2025, at which point he transferred the file for scheduling and explicitly informed the defendants that, because they were in default of filing a defence, they would not be permitted to adduce evidence at the hearing — only to make representations. A preparatory conference was set for 4 March 2026, which the defendants did not attend. The hearing on the merits proceeded on 13 March 2026. The defendants were absent; the Municipality called Michel Beaulne, Chief of the Inspections and Permits Division of its Urban Planning and Sustainable Development department, whose testimony lasted four minutes. Justice Mayer granted the Municipality's application, and a written judgment was signed on 16 March 2026. On 20 April 2026, the defendants filed an application for retraction of that judgment.

Applicable legal framework

The retraction of a judgment is governed by Articles 346 to 348 of the Code of Civil Procedure. Article 346 permits a party condemned by default to seek retraction if it was prevented from defending itself by fraud, surprise, or another sufficient cause, provided the application also sets out the means of defence to the original claim. Article 347 requires that the application be served on all parties within 30 days of the party acquiring knowledge of the judgment, that it be presented to the court within 30 days of service, and that no more than six months have elapsed since the judgment. Article 348 provides that if the retraction ground is found sufficient, the parties are restored to their prior position and execution of the judgment is suspended, after which the original proceedings continue. The court noted that under the current Code, the two-stage process — first assessing admissibility, then proceeding to a hearing on the merits — may be handled together or separately, as confirmed by the Court of Appeal in Canadian Royalties inc. c. Mines de nickel Neartic inc., 2017 QCCA 1287.

Court's reasoning and analysis

The court assessed admissibility in two parts: the grounds for retraction and the means of defence. On the procedural point, although the application was notified to the Municipality's counsel rather than formally served, the court found this was not fatal since the Municipality had full knowledge of the application and suffered no prejudice, and the notification was made within the 30-day deadline. On the grounds for retraction, the court accepted the defendants' explanation: the co-defendant, aged 70 and suffering from atrial fibrillation, was unwell on the day of the hearing and unable to travel to the courthouse, while the co-defendant had no driver's licence. The defendants attempted to participate by videoconference but connected to the wrong Teams link, joining a virtual waiting room for a different courtroom. At 10:01 a.m., they emailed the coordinating judge's office to explain they could not access the hearing room, and were told a judgment had already been rendered. The court found these circumstances constituted a sufficient cause within the meaning of Article 346.

However, the application failed on the second criterion. The defendants' proposed defences included: pre-purchase communications with municipal representatives who allegedly confirmed no regulations prohibited the intended use of the property; the existence of both residential and commercial zoning at the time of purchase; and acquired rights arising from the fact that vehicle storage activities were already underway when the zoning bylaw was changed. While these were factual allegations, the court found they could not be considered seriously arguable in the context of a retraction application, because the defendants had been expressly told as early as July 2025 that their default meant they would not be permitted to adduce evidence. Despite that warning, they never applied for relief from their default and never filed any means of defence at any point prior to the retraction application. The court held that a defendant cannot, for the first time in a retraction application, raise defences that were always available but never pursued through the proper procedural channel.

Ruling and outcome

Justice Marie-Josée Bédard rejected the defendants' application for retraction of the default judgment. The Municipality of Chelsea was the successful party. The court ordered costs against the defendants; however, no specific monetary amount was stated in the judgment.