DEFAULT PROCEEDINGS

[Rule 11]

A defence must be filed within 20 days of service.

Be sure to calculate days based upon when service is deemed to be effective: for instance if the person is served personally, service is deemed to be effective as of that day, however, if the service was by mail service is deemed to be given per Rule 8.07(2) of the Rules of the Small Claims Court: Service by Mail “…is deemed effective on the fifth (5th) day following the date of mailing” Therefore you must start counting days following the fifth day post service.

If the defendant does not file a defence within 20 days of being served, the plaintiff can apply for a default judgment. In order to receive a default judgment, in addition to a defence not being filed you will have to prove that the claim was served in the territorial division of the court. This is normally done with an examination of the Affidavit of Jurisdiction you should have filed.

If there are several defendants named and some do not file defences, default judgment will not be granted till trial.

Should you not file a defence to a defendant’s claim, the default judgment will also be determined at trial or on a motion before trial.

Once a default judgment is issued, there are not more steps to be taken for the defendant or the defendant to the defendant’s claim, the person has been deemed to have admitted liability and damages will be determined and issued.

NOTE: It is always possible to amend a claim, either before default judgment is rendered to better reflect the circumstances of a claim or through a motion after default judgment has been rendered to correct an error or alter judgment. However, this may impede your chances of securing a default judgment when the period for filing a defence has elapsed because the defendant may then wish to defend against the amended claim or judgment.

Once a default judgment is entered against the defendant then the court clerk must serve it on the defendant.

How to Obtain Default Judgment

Form Checklist:

  • Form 8A
  • Form 9B
  • Form 11B
  • Form 15A

*Each form corresponds to the exact rule in the Rules of the Small Claims court.

Liquidated Damages:

  • File a Request to the Clerk (Form 9B).
  • File an Affidavit of Service of the Claim (Form 8A) to show that the defendant was served.
  • File a draft of the Default Judgment form (Form 11B) setting out the damage calculations for liquidated including pre-judgment interest.
  • Pay the default judgment fee $35.00 for infrequent claimants, $50.00 for frequent claimants.
  • Once judgment is rendered ask for cost which will include fees and disbursements up to a limit for certain activities such as the process server’s fee (limit $60.00).
  • Keep a copy of the default judgment as signed as well as all other documents for your file.
  • The clerk will serve the defendant(s) with the default judgmen.t
  • Enforce the judgment through the court with a Bailiff ($36.00 per attempt.

Unliquidated Damages:

Unliquidated damages must be assessed by a judge as they are subjective therefore the procedure is slightly different.

  • File with the clerk a Notice of Motion and Supporting Affidavit (Form 15A) in as much detail as possible complete with copies of any relevant documentary evidence to prove the amount of your claim such as: receipts, invoices, medical reports. This is to avoid extra cost and time expenditure due to incomplete information and having to schedule another hearing.
  • File a Request to the Clerk (Form 9B) and request that an assessment hearing be scheduled
  • File an Affidavit of Service (Form 8A) for the plaintiff’s claim as well as the Affidavit for Jurisdiction (Form 11B)
  • Pay the motion fee $40.00
  • To schedule an assessment hearing you must follow all steps above except the last step would be to pay the fee for the hearing ($100.00 for infrequent claimants, $130.00 for frequent claimants)

Setting Aside Default Judgment

There is a provision in the Rules of the Small Claims court to set aside the Default Judgment provided that:
  • The party has a meritorious defence and a reasonable explanation for the default: AND
  • The motion is made as soon as is reasonably possible in all the circumstances
In order to effect a setting aside of a default judgment the Defendant or Defendant to the Defendant’s claim must:
  • File a Notice of Motion and Supporting Affidavit (Form 15A)
  • Pay the required fee
In the Notice of Motion and Supporting Affidavit the Defendant or Defendant to the Defendant’s claim must include:
  • That the judgment was moved to be set aside as soon as was reasonably possible
  • A reasonable explanation for the default – this does not include any willful and knowing default
  • A good defence to the claim
  • A draft of the defence on which you intend to rely to the Affidavit
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