Occasionally, clients will only become aware of a matter after they have been noted in default or judgment was obtained against them. Things happen, and things are missed.
The first thing a Defendant should do is to reach out to the Plaintiff or their Representative to see if they will consent to setting aside the noting in default or judgment. 9.5 times out of 10, a self represented party will not consent, thinking they can get an upper hand on a Defendant. They’re wrong. Usually, a representative will be able to convince their client its in their best interests to consent to setting aside the noting in default to save on costs and time.
If a party refuses to consent, a Motion to set aside the Noting in Default must be brought before the Court.
In order to be successful, the Court requires the Defendant to convince the Court that:
1. The Motion was brought immediately upon the Defendant discovering the noting in default or Default Judgment;
2. A reasonable explanation for the Defendant’s failure to deliver a Defence; and
3. Whether the Defendant has an arguable defence on its merits.
The most used reason for failing to deliver a Defence would be that the Defendant was not served with the Plaintiff’s Claim or it did not come to their attention in time to serve and file a Defence.
The Court also looks at the potential prejudice to the Defendant if the Motion is dismissed and that of the Plaintiff. Usually, there is very little, if any prejudice to the Plaintiff.
Motions to Set Aside a Noting in Default or Default Judgment are usually granted unless there are circumstances that would justify keeping the Default Judgment in place, however, the Small Claims Court is designed to give every party the opportunity to have their day in Court, even those parties who don’t comply with the Rules.
Motions are heard in Small Claims Court by Zoom and must be served on the Plaintiff or their representative atleast 7 days from the date of the Motion. Service by email is valid if the Plaintiff or their representative provided an email address on the Plaintiff’s Claim. The Plaintiff, or responding party must submit their responding Affidavit, if any, within two days from the date of the Motion.
If the Plaintiff incurred costs to obtain judgment or any enforcement proceedings, depending on how long it took to get bring a Motion, the Court may award costs against the Defendant as a condition of being able to file their Defence.
If a Plaintiff doesn’t act reasonably and fails to consent when they should have, they can be faced with a cost order.
Its best to bring your Motion as soon as you discovered the Noting in Default or Default Judgment, to better your chances of success at your Motion.
Murray Brown, Licensed Paralegal