Show Notes:

N/A

Lecture Slides:

Have a question about this video?

The team at Formative LLP has created a free discussion forum where anyone can post a legal question and get feedback from the wider audience of self represented litigants.  Join the discussion today!

Machine Transcription:

Welcome everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about obtaining a Default Judgment in the Superior Court of Justice in Ontario. This will be done in two steps … we’ll explain step one in this lecture and then we’ll cover the remaining in the next lecture. We’ll also explain to you what a Default Judgment is so you can understand the basic concept.

Before we began, we’ll explain to you our usual disclaimer that this course is not legal advice, if you have any specific questions you must contact a lawyer or paralegal or contact the Law Society of Upper Canada for any referral.

So, what is a Default Judgment? Essentially, you get a Default Judgment when you have filed and served the claim on the defendants and for some reason, there is no defense either nothing has been filed or the defense has been struck out, and you basically just go to the court at that stage and get a judgment against the defendant for your claims. So, you’re not going through the usual process of examinations for discovery and pretrial and trial, you are simply after you have filed and served your Statement of Claim, you are getting a judgment against the defendant, which you can go and enforce against that defendant. So, that’s what a Default Judgment is.

There are two steps to get a Default Judgment. Step number one is you have to Note to the defendant or defendants in default, and step number two you have to bring a motion to obtain the Default Judgment against the defendant or defendants. As I said, we’ll cover Noting in Default in this lecture and then we’ll talk about the motion for Default Judgment in the next lecture.

So, Noting in Default is obviously covered under the Rules of Civil Procedure. Any process that you undertake in the Superior Court of Justice Ontario is explained or at least covered in the Rules of Civil Procedures, and in this specific instance, Noting in Default is covered in Rule 19, and at some point, in this lecture I’ll briefly go over that rule with you, so, you can have an understanding of what that rule is about.

So, what are the circumstances in which you can Note a Defendant in Default? I will explain to you some of the circumstances. Number one, the defendant has not filed any Statement of Defense. Now, if you have issued a claim and served it you know that once you have served the defendant with your Statement of Claim, the defendant has a specific number of days in which the defendant must serve you with the Statement of Defense and then file it with the court. In certain instances or most instances, it is 20 days when you have served the defendant within Ontario, and it could be 40 days or 60 days depending upon where the defendant is located. If it’s elsewhere in Canada, I believe it’s 40 days and if it’s elsewhere in Canada or in the U.S. and then outside internationally, I believe it’s 60 days. But in any event, I covered that in my lecture regarding Statement of Claims, so you can review that. But there is a specific time line during which the defendant has serve and file the defense, and if no defense, you have not received any defense within 20 days or 30 days, as the time applies, then you have the right to Note the Defendant in Default. So, that’s one circumstance, and also note that in sometimes even though the defendant has not served the Statement of Defense, but they have contacted you and you and the defendant has have agreed on a different timeline for the defendant to serve the Statement of Defense and in that case, you should abide by that agreement so, that the defendant can file its Statement of Defense. But absent of an agreement and the defendant has missed the deadline, then you have a right to Note the Defendant in Default.

In other circumstances where for some reason the court has struck out this Statement of Defense in its entirety, and has not given any opportunity to the defendant to revise that Statement of Defense and serve and file it again. So, in my 10 years of practice, I’ve not come across an instance where I was personally involved in such a situation, where a Statement of Defense was completely struck out but the rules provide for it and there may be circumstances, but it’s a very, very, rare situation to occur so you may not be dealing with that kind of situation in your case.

Another opportunity to Note the Defendant in Default could arise where the court has struck out maybe part of the defense or struck out the defense, but given an opportunity to the defendant to revise and then serve and file a revised Statement of Defense within a certain time period. And that time period has also lapsed and the defendant has not served and file the revised Statement of Defense … then you still have an opportunity to Note the Defendant in Default.

Let’s look at look at the rules briefly. They will cover what I have briefly covered here, but I will look at them, so, we can get a complete understanding of these rules. So, as I said Rule 19 is the one that talks about Noting in Default, and talks about Default Proceedings and then there are certain sub rules that talk about Noting in Default. 19.01 Sub 1, as I said, where a defendant fails to deliver a Statement of Defense within the prescribed time. If you are the plaintiff, you may on filing Proof of Service of the Statement of Claim or deemed service require the registrar to Note the Defendant in Default. Now, with respect to the service of the Statement of Claim I have covered this partially in my lecture on Statement of Claim, but rules about the service or deemed service as specific rules and if you are not clear about those we will cover those in another lecture, and then you can review that lecture. But for the purposes of today, we’re assuming that you understand how a Statement of Claim is served and then you have properly served that Statement Claim on the defendant.

So, you have served it and the defendant has not filed a defense within the prescribed time, you can go to the registrar and have the defendant Noted in Default. The other scenario that I mentioned to you where the defense has been struck out, without leave to deliver another, so no opportunity to file another Statement of Defense or where there was an opportunity to deliver another, but they have failed to deliver within the time allowed, you can still go and have them Noted in Default.

If you are a co-defendant, you’re not a plaintiff, but a co-defendant and you wish to Note another defendant in Default because they have not served their defense with a timeline, then you can do so under this sub rule 3.

If a defendant is under a disability, then you cannot just simply go to the registrar and have that defendant Noted in Default, you must go to the judge and get leave from a judge on a motion and then have that defendant Noted in Default, so, you cannot do it without going through a judge.

Why is this Noting of Default important? I think it’s important for you to understand and this sub rule 5 is the one that explains that if you have not noted a defendant in default and the time for the service and filing of the Statement of Defense has lapsed, the defendant can still go and serve you with a Statement of Defense and file it with a court, just because you have not noted the defendant in default. So, to give you an example, if the defendant was required to serve and file the Statement of Defense within 30 days and it’s now 40 days but you have not received a Statement of Defense and have not Noted the Defendant in Default … the defendant can still serve you with a Statement of Defense and then file it with the court and it’s okay. So, if you want to make sure that the defendant abides by the timelines within these rules, then you need to take steps to secure your own rights under the rules. And in this scenario, what that means is that if the defendant has not served the defense within the time line, there is no agreement to the contrary, then you proceed and actually have the defendant Noted in Default and that will take away the defendant’s right to file the defense even after the time has passed.

What are some of the some of the other consequences of Noting the Defendant in Default? This is covered in Rule 19.02 and I’ll not go through the entire will but I’ll basically explain to you that when a defendant is Noted in Default, that defendant loses all rights to participate in the in the court proceeding. So, that defendant is not entitled to any notice, that defendant is not entitled to any steps in the court process, because the defendant has chosen not to participate in the court process by filing a defense, so, that defendant has lost all rights. So, you can proceed unilaterally, seek a default judgment, and go and enforce your judgment, take any other steps under the rules that are allowed to you, but you don’t need to tell that defendant what you’re doing whatsoever. So, the consequences of Noting in Default are important and significant and so, you want to make sure that if you are intending to proceed with a Default Judgment and enforcement of that judgment against that defendant you must follow step number one which is the Noting in Default.

Okay, so what are the steps in Noting in Default? There are three steps, step number one, you have to prepare an Affidavit of Service of the Statement of Claim. Step number two, you will have to prepare a requisition for the registrar to Note the Defendant in Default, and then you take your requisition, two copies of your requisition, and an original copy of your Affidavit of Service and you go to the court, go to the registrar and file the two documents.

Let me give you a quick example of these two documents, so you can and, these are pretty set forward, but I’ll give an example so you can understand how these documents are prepared. Let’s look at the Affidavit of Service first. So, the Affidavit of Service and the requisition, they are both available online. The forms are available; I’ve actually pulled it up here. If you go on Google and type in, “ Rules of Civil Procedure Ontario forms” you will get this page, and form 40 is the Affidavit. You can have it in P.D.F. or Word document, if you click it you will get it. And similarly, 4E is a requisition again in P.D.F. and Word document.

So, I have prepared these as an example for you. So, let’s look at Affidavit of Service, pretty straightforward document, but you want to start by putting that title of your proceeding, which means that court file number that comes here is exactly what is written on your Statement of Claim, so, you copy that here and then the names of the plaintiff, you are the plaintiff you put your name here. Put the name of the defendant and again this information must be exactly identical. It must be identical to what’s on the Statement of Claim. So, you put that information, and then whose Affidavit of Service is this? In this case it was mine, so, my name comes here. If you serve the Affidavit of Service, if you serve the Statement of Claim personally, then your name comes here, if you’re a processor or somebody else serve the affidavit then that person’s name comes here, and then the date on which this affidavit was sworn, not the date of service, but the date on which the affidavit sworn, you put that information here. So, I, Amer Mushtaq obviously the deponent and affiant’s name comes here of the city in which the person resides, of the province in Ontario make oath and say, “on such and such date, this is the date of the service”. So, if you served the defendant on May 20 of 2017, he put it here on May 20, 2017, I served the defendant, put the defendant’s name here. With what document, the Statement of Claim. By what means? In this situation, we served the defendant by leaving a physical copy where the person, the receptionist at so and so at this defendants address, right?

So, there are other ways to serve the documents and whatever acceptable means of service you followed, you basically provide that. When did you serve the document and how did you serve it and whom did you serve it on and where did you search at? So, you put that information here, and then when you say that I’ve served it on such and such person how did you know that person was that person? So, if the person acknowledged this verbally, then you write down that the person verbally acknowledged that he or she was such and such person. Or if you look at their driver’s license and you can say I looked at their driver’s license to confirm that this was the name of the person, and because we were serving this claim on a corporation you want to serve it on somebody who seems to be in charge of that corporation at that time. And by, in charges it doesn’t mean C.E.O., but and in control of that space. So, usually a receptionist, or an office administrator of some kind is fine. So, we mentioned that we serve this person, we identify this person with a name, and then that person seems to be in the control of that office.

So, you provide the statement and like I said, depending upon how you have served that statement, the nature of the statement will vary but you want to make sure that you provide the full information. Then you sign here before a commissioner of taking affidavit or notary public or a lawyer. Put the city, the name, and the date of the swearing off this affidavit, and on the back page, you have similar information plaintiff’s name, defendant’s name, court file number, your name, date of service, and then this is your information, not my friend’s information. So, you just put in your information, I have just left it here, so, you can understand as a sample how this is done. So, once the once you have sworn the affidavit, you have signed and the commissioner has signed it, you take the original copy and you file it with a court, not a photocopy, so, make sure that you have multiple original copies in your possession so, you can use them as needed.

So, that’s your Affidavit of Service let’s look at the requisition, which was I believe form 4E and it is again straightforward. The top portion is, again, identical to what’s on the Statement of Claim, which is the court number, plaintiff’s name, defendant’s name and then you are addressing the requisition to the local registrar. If it’s in Toronto you put the Toronto name, if it’s Newmarket or any other jurisdiction then you put that jurisdictions name. And what is it that you want the registrar to do? I require you to Note the Defendant, the defendant’s name in Default, that’s all you have to say. Put the date here, put your name, address, phone number, sign it, take two copies with you, so you have two copies of this requisition, you have an original copy of the Affidavit of Service, you go to the registrar hand these over. If the registrar accepts the requisition then the registrar will put a stamp here, a court stamp here, and date here and then give you back a copy that means that the defendant is indeed Noted in Default. So, straightforward steps but you must follow these steps accurately, perfectly, so, that you have no issues in Noting the Defendant in Default.

In the next lecture, we’ll talk about how do you go about bringing a motion for Default Judgment and we’ll explain those step so, you can have your Default Judgment against the defendant.

Thank you for watching! If you have any questions or comments please feel free to contact us and we look forward to hearing from you, thank you.