Executive Summary: Key Legal and Evidentiary Issues

• The court considered whether a without notice order setting aside a default judgment should itself be set aside.
   
• Justice Forth examined whether the plaintiff had received proper notice of the January 23, 2026 hearing date.
   
• Compliance with Rule 3-8(2)(c) of the Supreme Court Civil Rules emerged as central to whether the original default judgment was validly granted.
   
• Evidentiary questions arose regarding service of court documents on a self-represented plaintiff who used only a post office box for correspondence.
   
• Application of the Miracle Feeds factors assessed whether the defendants' delay in responding to the litigation was wilful or blameworthy.
   
• Procedural irregularities affecting both self-represented parties, including affidavit numbering and service failures, were addressed by the court.
   

Facts of the case

Karen Marie Katz and Terrance Joseph Kosikar had a relationship whose nature the court described as unclear. In October 2021, Katz provided $290,000 to the defendant Camp My Way Society. Kosikar maintained the money was gifted to help him buy out his ex-partner's share of the property where he lived and where the Camp operates; Katz claimed the payment was for an interest in the property itself. This dispute produced several related actions, including the Kosikar Action, the Camp Action (seeking approximately $110,000), and the Lawyer Action. In the current proceeding, the Defamation Action, Katz filed a notice of civil claim on May 12, 2025, alleging defamation, breach of confidence, and misappropriation of personality, and seeking various forms of damages and injunctive relief. Kosikar filed a response to civil claim on June 13, 2025, within the time allowed, but the defendants failed to serve that response on Katz. On June 18, 2025, Katz applied for default judgment, and on August 6, 2025, Justice Sigurdson granted it, with damages to be assessed later. After retaining counsel, the defendants applied to set aside the default judgment (the Set Aside Application). Following adjournments attributed largely to Katz's conduct, the defendants obtained a without notice order from Justice Branch on January 23, 2026 (the Branch Order), which set aside the default judgment and costs award and gave the defendants 14 days to file an amended response. Katz then applied to set aside the Branch Order, asserting she had not received notice of the January 23, 2026 hearing.

Policy and legislative provisions at issue

The decision turned on several provisions of the Supreme Court Civil Rules, B.C. Reg. 168/2009. Rule 3-8(1) permits a plaintiff to proceed against a defendant who has not filed and served a response to civil claim within the applicable time. Rule 3-8(2) sets out mandatory filings for obtaining default judgment, including, under paragraph (c), "a requisition endorsed by a registrar with a notation that no response to civil claim has been filed by that defendant." Rule 3-8(11) gives the court discretion to set aside or vary a default judgment. Rule 8-5 allows a court to change or set aside an order made without notice to the affected party, with such applications generally heard de novo as to both law and facts. Rule 6-1(1)(b) restricts a party's ability to file an amended pleading once a notice of trial has been filed, absent consent or a court order. Rule 4-2 requires service on an "accessible address" — a term defined in Rule 1-1 — which was also relevant, given that Katz had provided only a post office box.

Reasoning and analysis

Justice Forth held that because the underlying application was heard by a different judge than the one who granted the original without notice order, the matter proceeded as a hearing de novo, requiring fresh consideration of whether the Default Order should have been granted at all. The court found that the Default Order should not have been made, since a response to civil claim had already been filed by the defendants on June 13, 2025, before Katz sought default judgment on June 18, 2025; Katz could not have obtained the registrar's requisition required under Rule 3-8(2)(c) confirming no response had been filed, because one had been filed. On that basis, Justice Branch's decision to set aside the Default Order was correct. Applying the Miracle Feeds factors, Justice Forth found no wilful or deliberate failure by the defendants, whose non-service of the response arose from Kosikar's misunderstanding of registry staff and from the disruption caused by his sister's death. The court found that the Set Aside Application had been brought as soon as practicable, noting that subsequent delays were attributable to Katz's own conduct, including her lack of an accessible means of communication other than a post office box. The court further concluded that potential meritorious defences existed, including limitation period arguments, protections under the Protection of Public Participation Act, and the absence of a recognized tort of misappropriation of personality in British Columbia. Weighing these factors, the court determined it was in the interests of justice to set aside the Default Order, meaning there was no basis to disturb the Branch Order. On the separate question of whether the defendants could file an amended response, the court noted that a notice of trial had already been filed, meaning Rule 6-1(1)(b) required either Katz's consent or a further court order before an amendment could proceed.

Ruling and overall outcome

Justice Forth dismissed the Plaintiff Set Aside Application, confirming that the Branch Order — which had set aside the earlier default judgment against Terrance Joseph Kosikar and Camp My Way Society — was correctly made. As the successful parties, the defendants were not ordered to pay any damages or monetary award; rather, the decision addressed procedural questions concerning notice, service, and compliance with the Rules. On costs, the court applied Rule 14-1(12), ordering that Katz was not entitled to costs of this application even if she succeeds at trial, while the defendants would be entitled to costs of the application only if they are ultimately awarded costs of the trial itself. No fixed monetary sum was ordered or specified in this decision.