Understanding the Impact of Noting a Defendant in Default

Hi Everyone, it's Kristy from Clearly Legal.

Let's chat today about Noting in Default.

When a defendant misses the deadline to respond to a Statement of Claim or Plaintiff Claim, the process of noting in default begins. This step has significant consequences for both the defendant and the plaintiff.

If you are involved in litigation, knowing how noting in default works can save you time, money, and unnecessary complications.

What Does Noting in Default Mean?

Noting in default happens when a defendant fails to file a defence within the time allowed by the court rules. This means the defendant has missed their chance to respond to the statement of claim or plaintiff’s claim. Once noted in default, the defendant cannot participate in the case without the court’s permission.

For the plaintiff, noting a defendant in default opens the door to enforce a default judgment. This judgment allows the plaintiff to obtain a court order to move onto enforcement of their claim, based on the defendant’s failure to defend.

Key Changes in the New Rules, For Superior Court at least

With the incoming rules, one important update is that the defendant will have to be personally served with the noting in default (please note that at the time of posting, the new rules are still not rolled out). This personal service will be new because currently, in both small claims and superior, while defendants have to be served with default proceedings (the enforcement that comes after noting in default), in Superior, defendants will now need to be served that they have been noted in default.

How Noting in Default Affects the Defendant

Once noted in default, the defendant loses the automatic right to defend the claim. To participate further, the defendant must ask the court for permission, which is not guaranteed (though I admit that, so far, motions to set aside the noting in default are often granted, and I admit are often granted because the defendant had a solid reason for not defending prior to day 20). Courts generally require a good reason for allowing a late defense, such as excusable delay or new evidence.

What the Plaintiff Gains from Noting in Default

For the plaintiff, noting in default is a powerful tool. It allows the case to move forward without waiting indefinitely for a defendant’s response. After noting in default, the plaintiff can apply for a default judgment.

This process also reduces legal costs and court time since the plaintiff does not have to prove the case at trial if the defendant fails to defend. However, the plaintiff must ensure all procedural steps, including personal service of the default notice, are correctly followed to avoid delays or challenges.

Noting in Default can also effectively note to the court the defendant has no defence and/or agrees with the claim fully.

How Clerking Skills Can Help You Save Time and Money

Managing the noting in default process involves strict procedural steps and monitoring of deadlines. Experienced clerking can help you avoid costly mistakes by ensuring all documents are filed correctly and on time.

Noting a defendant in default can be critical step in litigation that can determine the outcome of a case. While the decision is substantive, most of the noting in default work is procedural. Contact me at kristy@clearlylegal.ca and we'll chat