How to Manage Default Judgment in Small Claims Court
Hi Everyone, it's Kristy from Clearly Legal
Let's talk about Default Judgment in Small Claims Court.
If the person you sued does not respond to your claim, you can ask for Default Judgment.
Default judgment is what you can ask for when the defendant, meaning the person or business you sued, has been properly served and has not filed a defence within the time allowed. It’s not automatic. You still need to show the court that the claim was served properly, the deadline passed, and the amount you are asking for.
What default means in Small Claims Court
Before you get default judgment, you usually need to deal with default itself.
When a defendant does not respond on time, you can ask the court to note the defendant in default. That’s basically the court record saying, “This person was served, the time to respond has passed, and no defence was filed.”
That step matters because it changes what can happen next. Once the defendant is noted in default, you may be able to ask the court for default judgment...unless you are dealing with a final trial order, the defendant(s) has to have been noted in default for lack of Defence before you can move to enforcement.
The three ways to seek default judgment
You can seek default judgment in one of three ways:
Request to Clerk to ask for Default Judgment
Motion in writing for assessment of damages
Ruquest to Clerk to ask for an Assessment hearing
The right route depends on the type of claim, the costs, the kind of damages you’re claiming and if the simple act of Default Judgment will cover it.
Request to Clerk to ask for Default Judgment is the most common route
The Request to Clerk and Default Judgment forms work together when the amount owed is clear and the costs are reasonable / uncomplicated.
In the Request Form, you will advise that you are Noting in Default.
In the Default Judgment form, you will advise of the amount, payments, costs, interest.
Motion in writing for assessment of damages
If your Claim is for unliquidated damages, where the court must quantify or assess the damages you may be owned, and you are not asking for a set and finite amount, you may be able to submit a Notice of Motion and Affidavit form in writing to ask the Judge to assessment the damages.
You qualify for this when all defendants been served and all defendants have been noted in default for failing to reply.
In this, it is possible the judge will schedule an Assessment Hearing.
Assessment hearing
Assessment Hearings and Motions in Writing for Assessment are similar, and used for the same purpose, unliquidated damages.
You submit the Request to Clerk noting that you want to schedule an Assessment Hearing instead of using the Motion. The Clerk sets the date and sends the Plaintiff a Notice. You'll see on the form that the Defendants have already been noted in default.
Assessment Hearings are similar to a trial. You, as the Plaintiff or Plaintiff's counsel, are proving to the judge the amount you want the Defendant to compensate. The Defendant is not present because the Defendant was noted in default.
How interest fits into the calculation
You get interest, and you need to consider both
Pre-Judgment interest
This is interest calculated before the judgment date.
Post-Judgment interest
This is interest that applies after judgment is granted.
Use the rate that applies to your claim - your agreement, or the court rules.
Experience Matters
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. Because Self-Reps can do this, for advice specific to your situation, please consult a lawyer or active licensed paralegal, and please note that much of this blog has been researched and created from readily available Ontario Government websites.
