Obtaining a Default Judgment in Ontario Superior Court Step 2 [video]

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This is the second lecture on obtaining a default judgment in Ontario Superior Courts. It is a step-by-step guide to successfully bringing a default judgment motion.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Lecture Slides:

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Welcome everyone, this is Amer Mushtaq from You Counsel. Today, we are covering part two of our lectures on Obtaining a Default Judgment in an Ontario Superior Court. We have covered this topic in two lectures, we have already provided lecture one that covers step number one. So, we will cover the final step, step number two today.

We’ll begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions about your legal issues you must contact a lawyer or a paralegal or the Law Society of Upper Canada.

We’ll begin with our discussion, we begin with what is a Default Judgment, and we’ll talk about these two steps Noting in Default and the Default Judgment motion. In our previous lecture, we have already covered what is a Default Judgment but, briefly speaking, you obtain a Default Judgment when the defendants have not filed their Statement of Defense within the time period prescribed or for some reason, their Statement of Defense has been struck out. So, in that case the plaintiff is entitled to obtain a Default Judgment and to do that, step number one is you Note the Defendant or to the Defendants in Default and we’ve covered that in our first lecture. We’ll jump on to step number two which is obtaining a Default Judgment through a Default Judgment motion.

You want to keep in mind that the Rules of Civil Procedure of Ontario apply to how you bring about a motion for Default Judgment, specifically Rule 19, but you also want to look at Rule 37, which deals with motions in general. In Rule 57, if you want to consider cost and other rules as they apply. Courts of Justice Act,which is the authority for the Rules of Civil Procedure is also relevant. But most importantly, you want to look at Practice Direction. And Practice Directions are directions of the courts of Ontario, based upon which region they are, and those specific courts may have their own practices or procedures with respect to how you bring about a motion, and you want to make sure that you look at that as well. So, for instance, if you are looking at a Practice Direction for Toronto, the link that I’ve provided, you go there, and you will see, let me at least show you where that link is. So , he original link that I provided when you click on it, this is the Practice Direction and policies for Ontario, and it’s divided into regions and depending upon where your case is you click on that region. So, if it’s in Toronto, you click there and you will notice that there are a number of Practice Direction that are provided guidelines and they are very, very important. You can’t especially with respect to timelines and stuff, if you miss these Practice Directions and do not follow, it will have grave consequences in terms of your motion being heard.

So, let’s look at Practice Directions and we’ll talk about it further, but that’s an important aspect of bringing a motion. So, before you bring a motion, you want to go back to Practice Directions and make sure that you are following all the processes.

Now with respect to Default Judgment motion, there are generally two things, two considerations that you want to have. Whether the motion should be brought before a registrar or before a judge, and then whether the motion should be in writing are should you bring your motion orally. So, with respect to a motion before a registrar or a judge, it depends what kind of claim you have commenced. The kind of claim you have commenced determines whether you are entitled to bring a motion before a registrar or you must bring a motion before a judge. So, I’ll explain that by way of an example.

If your claim is about seeking a judgment for unpaid debt, or if your motion is for a judgment for claiming liquidated damages, then your Default Judgment motion can be brought before a registrar of the court in writing and you can get that Default Judgment signed. So, what do I mean? In other cases, you must bring it before a judge, so, let me go a bit further. So, when I say that if your motion is, if your claim is for a debt, let’s say take an example, if you loaned $50,000 to someone and that person has not paid back the money in the time frame that was agreed upon, and you want to now bring a Default Judgment. You’ve brought a claim against that person and now you’re seeking a Default Judgment, then the amount of money is fixed. You have loaned $50,000, it’s clear on the basis of the claim that you have filed and the court will accept that as the facts. And so, there is no sort of leeway there, there’s no discretion for the court there, and 50,000 is owed to you, the defendant has not paid it, and so, you are entitled to a Default Judgment. So it’s pretty straightforward. The judge or the registrar does not have to make an assessment of what is the appropriate damages, the damages are pretty straightforward.

With respect to Liquidated Damages, what that means is, by way of an example. If you operate a business you provide some kind of services, let’s say contractor services, and somebody hired you to provide certain services for $70,000. The party signs a contract, you completed the work, you issued an invoice for $70,000 and did not get paid. So in this situation, there’s an invoice that claims and a contract that claims that you had done work for $70,000 and you’re entitled to that amount, and again the registrar or the judges will accept your Statement of Claim, the facts and your claim because there is no defense. And so it is pretty straightforward that because there is an invoice there and a contract there, you were entitled to $70,000, which has not been paid. So, that’s an example of Liquidated Damages.

So, in those cases as you can imagine, the process of providing you with a Default Judgment is rather straightforward. So, in these kinds of situations, you can bring a motion before a registrar in writing and get your Default Judgment. Another example where a motion before for a registrar is inappropriate, is let’s say, your claim is based upon sexual harassment or damages for some sort of personal injury. In that situation a judge will have to make a determination about what are the appropriate damages in your case. Whether $25,000 is sufficient, whether it’s $100,000 and so on and so forth. So, that is not a case where you can bring a motion before a registrar because a judge is the appropriate authority to make that assessment. So, you have to figure out before you bring your Default Judgment motion whether the motion must be before a registrar or before a judge. And if it is before a registrar, you should not bring it before a judge you should go to a registrar and obtain your Default Judgment.

So, if this is one topic that may get a bit complex so, if you are unclear about where should you bring your motion, then you may want to consult a lawyer and make sure that you are bringing the motion before the right person.

Okay, the next step is you can bring the motion in writing or orally … with registrar you always bring your motion in writing, so, you prepare your motion material and you file. And with respect to a judge, you can still bring a motion in writing, or you can you can prepare your motion materials, file them, and then attend your motion before the judge and provide your submissions in person.

Default Judgment motion in writing, as I stated, is rather straightforward, you prepare all the motion material, which I’ll explain in the next few slides. What that material is. You file it with the court together with the motion fees, and court fees and we’ll talk about that as well. And then you just wait for the court’s response whether you get Default Judgment or not.

This lecture primarily covers the motion, the oral motion and we’re talking about six basic steps that you want to keep in mind. Step number one is that for all motions, you must obtain a motion date prior to attending motions. So, you have to obtain a date when the judge is available, and then you book that date, it’s done through a motion requisition we’ll talk about it. Step number two, you prepare a Notice of Motion and you provide court fees and then you have to submit both of those with the court. Step number three, you prepare your motion record, we’ll talk about what it is. Step number four, you’ll have to confirm your motion a few days before the motion is to be heard, and it’s an important step and we’ll talk about it. Step Number five, you draft your Default Judgment for the judge, and we’ll talk about that. And then finally you attend at court and obtain your Default Judgment from the judge.

So, let’s get to step number one. Step number one, you want to make sure that you get a motion requisition form and that process is not complicated. You go to your web browser, go to Google and then type in, “motion requisition form”, there are motion requisition forms for motions for less than two hours and then more than two hours. So, you want to make sure that for a Default Judgment motion less than two hours will be sufficient for you, and so, you want to pick that form.

I’ve downloaded this form and I am providing here as a way of an example for one of the cases that I’ve done. I have taken out the specific information relating to parties. But you can see that this is the form, and you want to download it, you will fill out all these forms. There are certain nuances to how you fill this form and so, in my next lecture I will – sorry this is the wrong form – this is the Motion Confirmation form. Motion Requisition Form here it is. In a separate lecture I’ll explain how do you cater to the nuances of completing this Motion Form. So, for example, in this question you explain what kind of rules apply and you want to make sure that you cover all the rules that apply to your motion. So, this is the Motioning Scheduling form, you have to complete it, and what do you do with this motion form? You can either send it by email and this is the email address or you can fax it. or you can fax it to this number. And so, that’s one way of completing the Motion Scheduling Form and sending it so, that you get your motion schedule.

So, you fill out the form, you take it to the Motions Scheduling Court if you want to attend in person, or you either call make a phone call to the motion scheduling clerk, or email, or fax it. Now, if you make a call and you get the Motion Scheduling clerk on the phone obviously you will know the dates that are available. Clerk would like to know all the information that’s in the requisition form and then will schedule a motion date for you right then and there. If you’re sending an email or fax then, at least in Toronto, you should expect about three days for the motion scheduling clerk to respond to you whether your motion date has been scheduled or not. So, this is just the scheduling.

Looking at the schedule for the judges and their availability, you have now through these steps scheduled your motion and send the requisition form to the court.

Okay, step number two is that you want to make sure that you know what are the fees for the motion and you essentially go to Google and type in, “court fees Ontario” and you will get to this link that I provided here, and at that link, you will find the amount for the motion is provided. Let me do this exercise quickly with you and see we can get there. So, you go to Google, “court fees Ontario”. And you find that link, click on it, this covers all of the court fees. This is under the Administration of Justice Act. And let’s search for motion, and there you go. A Notice a Motion served on another party, a Notice of Motion Without Notice, a Notice of Motion for a Consent Order, $160. So that’s your court fees for the motion, make sure you have it handy, either in the form of a check, money order draft, credit card, or interac, and you take it with you.

And then the second item you have, is you must prepare what’s called a Notice of Motion, its form 37A. I’ve mentioned in the previous lecture, that you can find it on Google, you just type in, “Ontario Rules of Civil Procedure forms” and you will get to that form 37A. Let me show you what this form looks like I have taken one form out from one of my cases, lets see if I have it. So, right here, this is form 37A, you download it, and you fill it out. Provide the court file number, party’s information, this should be identical to what’s in your claim. And then you basically, the Notice of Motion is essentially what is it that you are asking the court to do? And so, you are saying, in this situation you are saying. “I want a Default Judgment against the defendants for ‘X’ amount of dollars”. And then you go on to explain what are the grounds for the motion, and you briefly explain that. You have commenced an action, you have served the claim, the defendant has not provided its defense, the defendant has been Noted in Default, so on and so forth. You are going to rely on the all of these rules. You are going to rely on and affidavit that you will provide and all of that. So, that’s the Notice of Motion.

So, when you have booked a motion date, you have 10 days in Toronto. Within 10 days you must prepare the Notice of Motion form and $160, and provide it to the court. If you do not do it within 10 days your motion date is vacated. So, it’s very important that as soon as you book the date, you prepare the Notice of Motion and file it. But 10 days is your limit in Toronto, it may be different in other jurisdictions … you want to check that, and then make sure that the form is filed.

Okay, step number three is preparing a Motion Record. So, a Motion Record is essentially a Notice of Motion, which you already prepared. You prepare an affidavit, which is Form 4D, and again you download the form and basically that is your affidavit, which says what is the evidence that you have. If it was a case, for instance, where you had provided a contract, parties have signed a contract, you have provided invoices and you didn’t get paid. Then you tell that story in your affidavit. The affidavit is sworn before a commissioner of oath, notary public or a lawyer and then that becomes part of your Motion Record.

You have to bind your Motion Record and it’s important for you to go through Rule 4.07, which talks about the colour. And Rule 4.07 tells you when you’re binding your motion material or any of the court documents that you must follow certain colours. So, let me quickly take you there. So, Rule 4.07, for instance, says, “Records of Motions applications blah blah blah, shall have a light blue back sheet”. So, these colors are important, because through these colors the judges and the court staff can easily distinguish what is the nature of you are motion or application or trial or whatever, or what is the nature of your documents right. So, you want to make sure that you follow that and then you file that motion record as soon as possible, but in Toronto at least three days before your motion. And this is a motion, Default Judgment motion is a motion ex-party meaning without notice. As I mentioned in my previous lecture, that the defendants are not entitled to any notice for Default Judgment.

Step number four, you go to Google, type in, “Confirmation of Motion form” and you download it, you get it ready, and you file it with the court. In Toronto, you must file the Confirmation of Motion form at least three days before your date of hearing. And if you don’t do that, you will end up losing your date. So, it’s important that you file the form within the time period. If you don’t do it, then you will lose it.

Let me quickly show you what that form looks like and if you know by this time how to fill out the Motion Requisition form then this is straight forward, but this is what a Motion Confirmation form looks like. And you must either send it by email or fax, I would prefer fax because then you have a fax confirmation, and if there is a problem with the court then you can show that you actually delivered that motion confirmation form.

Step number five, you prepare a draft judgment and the draft judgment, again, the forms are available form 19A,19B, or 19C depending upon what your case is and then you can use that form. I have prepared a Default Judgment form for one of my cases, so, its briefly here. It talks about court file number, you leave the judge’s name blank depending on who the judge is, put the date up there, and then parties names and whatnot. And you basically this is a judgment, you want to prepare the judgment and make sure that it’s accurately prepared, so that the judge, the only step that the judge takes is really agrees with what you have said and signs here. You don’t expect the judge to write all of this stuff for you and provide you with a judgment. You prepare the judgment in draft for the judge, present copies to the judge, and hope that the judge will agree with what you have written here. If not the judge may, for minor changes, the judge may cross out some of the some of the language and change it. But if it’s not prepared in draft form or it’s not phrased properly, then the judge may I ask you to go back and prepare it. So, this is a Draft Judgment that you can use, but you can download the forms and prepare it. Make sure you prepare three copies and present it to the judge, so that you get two copies and then you can have some originals that you’ll take further steps with.

Okay, now you’re ready to go and attend the motion, so you want to make sure that you know the place in time of attendance, you know the date now, so, now you want to know which courtroom you have to go, which address and whatnot. So, this is the website that I’ve provided, go check that out and you will find your specific case on that web site listed.

So, let me quickly show you what this website looks like. So, you go to the website that I provided, this is what the website looks like. You agree to the terms and conditions, enter. I want to show you how these motions look like, so, let’s see if I can get you there. I agree to the terms and conditions, agree to these, move down. And then if you choose the court which court is your case at, Superior Court of Justice, you choose the municipality, if you’re in Toronto, you choose Toronto. Type or line of business civil case, you do that. Court location, lets say its 393 University, and then validate. And then you submit, and this will take you hopefully to all the motions. I just want to show you, look at all these motions that are listed for, and this this website is updated daily for the next day. So, these are the motions for June 1st today. And look at all these motions that are being heard in 393 University Avenue, Toronto. I believe there are a few hundred. And there is reason why I want to show you this. The reason I wanted to show you that is because the time is important, there are many many parties who are seeking to attend a motion before the judges and before the court, and if you don’t follow the timelines that are prescribed you will lose your turn, and you will not be heard. So, you want to make sure that you follow those procedures properly. So, you check your court number and stuff, and then when you attend that morning you look at who the judge is, it doesn’t matter who the judge is, but it’s good to know who the judge is, and then you attend.

And then when you go at the court office, you check in with the registrar there you will be on a list, you look at the number three four five, you go over to the registrar, the registrar will have another form that you fill out, which basically talks about who’s attending, what’s your phone number, and whatnot. And then the registrar will call you based upon how the roster of that judge is that day, and then you attend and then you provide your submissions and hopefully you get your Default Judgment.

So, in conclusion, what do you want to keep in mind? The most important thing is you want to watch the timelines. Make sure you read the Practice Directions, make sure you read the rules, and follow them accurately. If you miss a deadline you lose your turn, so, it’s very important. Make sure you pay attention to the detail, because every little thing on that form or the forms that we have discussed is important.

And I want to emphasize very briefly that a good Statement of Claim is essential, because when you’re bringing a Default Judgment motion, the law is that the judge will accept the facts that you have stated in your Statement of Claim. Those facts are considered to be true and on that basis you get a Default Judgment, but if your Statement a Claim does not cover the facts that are required for you legally to get a judgment, you will not get a judgment. So, it’s important that your Statement of Claim is accurate and complete, so that you can get your judgment that you want.

We spent a lot of time, about 22 minutes on this, because I wanted to cover the entire motion in one lecture so you at least have it in one place, and as you may notice, that there are certain nuances to filling out the forms and stuff so what I’ll do is, I’ll pick each one of those for instance Motion Requisition form, maybe an affidavit, maybe we’ll pick the Notice of Motion and stuff. So, we’ll probably go through in future lectures and pick one document and then dissect it, so, that I can explain to you what are some of the important considerations. But this is generally how you obtain a Default Judgment motion. The steps are here if you follow those steps. Excuse me… so, if you follow these steps accurately and put in the effort to make sure that the details are looked after properly, there is no reason why you will not be able to get your Default Judgment.

If you have any questions or comments please feel free to contact us and we look forward to seeing you in the next lecture. Thank you for watching.

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