Default Judgment Checklist: What to Consider Before You Apply

Hi Everyone, it's Kristy from Clearly Legal.

Let's look at Default Judgment.

Start with where you are in the litigation

Before asking for default judgment, confirm exactly where the case sits.

Are you just starting, and the Defendant did not file a Statement of Defence on time? Are you looking at your Trial Order, and the Defendant has not paid or returned property yet?

Those details matter.

Ask yourself:

• Has any money been paid?

• Has any property been returned?

• What kind of legal costs are you entitled to?

• Are you thinking about an Assessment Hearing?

Noting in Default?

If you are at the start, if you have not received a Statement of Defence, you need to note in default first.

The Forms

You will be working with the Requisition for Default Judgment and the Default Judgment form that corresponds with the type of judgment you are going for. Debt or Liquidated Damages, Recovery of Land, Recover of Personal Property.

The Principal Amount and Any Payments

Have you been paid any amount of money? If you are enforcement for money, and you have received any, you will need to calculate that - you will need to subtract what was paid and use the lower amount as your new principal.

Other than the principal amount you are looking for, the property you are looking, you need to look at things like Pre and Post Judgment Interest and the type of enforcement you are seeking.

Pre and Post Judgment Interest

Pre Judgment Interest

You are entitled to Pre-Judgment Interest from your cause of action to the date of the judgment. While the prescribed rate is most common, you are allowed to ask for interest that was agreed to and noted in your contract or another document that differs from the CJA. I use the formula found on the Ontario.ca website for pre and post

Post Judgment Interest

This is interest that applied from the date of the judgment to the date you are selecting to submit your materials for issuing. Again, check your interest rate. I also use the Ontario.ca website for the current rates, when I am going with the prescribed rate.

Don’t assume one rate applies to everything. Sometimes the rate changes depending on the time period. Sometimes a contract rate applies. Sometimes a court rate applies. Sometimes interest isn’t available on every part of the claim.

Before applying, check:

• The start date for interest

• The end date for any pre-judgment calculation

• The rate or rates being used

• Whether the rate comes from a contract, a statute, or court rules

• Whether interest is simple or calculated another way

• Whether interest should apply to costs

  
  

Think about the kind of enforcement you are seeking.

Getting judgment is one step. Collecting on it is another.

Depending on the situation, enforcement might involve wages, bank accounts, recovery of personal property or real property. You may also need to consider a Examination for Discovery in Aid of Execution, or a Judgment Debtor Examination. They are the same thing, and they are an examination of your debtor to learn your debtor's assets. The Defendant becomes a Debtor when you are enforcing. The Plaintiff becomes the Creditor.

Ask yourself:

• Does the defendant work for an employer?

• Do you know where they bank?

• Do they own land or vehicles?

• Is the property you want returned still in their possession?

• Is the defendant an individual or a business?

• Are they in the same province or territory as the court file?

Add up your costs to date

Costs are the expenses tied to moving the case along. They may include filing fees, service fees, search fees, and other allowed amounts.

Once you have decided to enforce, the content is largely procedural, and the forms are easy (yes, I said easy). Lawyers and Licensed Paralegals, start working on the substantive of your next file (or on your prep for your JD exam). Let me manage the enforcement. Contact me at kristy@clearlylegal.ca and we'll chat.

Disclaimer: This post provides general information about alternative service of legal documents from a law clerk. It is not legal advice. For advice specific to your situation, please consult a lawyer or active licensed paralegal