Default judgment: when no Defence is filed

What this stage is

A default judgmentDefault judgmentA judgment made because the defendant did not file a Defence in time, without a trial. For a debt or fixed amount, it is requested on Form 11B (Rule 11.02).Close definition of Default judgment is a judgment made because the defendantDefendantThe person or business being sued. The defendant responds to the claim by filing a Defence.Close definition of Defendant did not respond to the claim in time. There is no trial. The court accepts the claim as filed, or holds a short process to decide how much is owed.

This page covers both sides:

• Plaintiffs: how to move forward when no defenceDefenceThe defendant's written answer to a claim, saying what they agree with, what they dispute and why. In Small Claims Court it is Form 9A.Close definition of Defence arrives.
• Defendants: what to do if you missed your deadline.

For plaintiffs: when no Defence arrives

The defendant has 20 days after being served to serve and file a Defence (Rule 9.01). If that time passes with no Defence, you can act.

Step 1: Ask to note the defendant in default

You file a request to clerkRequest to ClerkA form (Form 9B) used to ask the clerk to take a step, such as noting a defendant in default or recording that a plaintiff disputes payment terms.Close definition of Request to Clerk on Form 9B, asking the clerkClerkA court staff member who accepts and reviews documents, issues claims, and handles some steps such as noting a defendant in default. Clerks cannot give legal advice.Close definition of Clerk to note the defendant in default. Being noted in defaultNoted in defaultWhen the court records that a defendant did not file a Defence in time. After that, the defendant cannot file a Defence without the court's permission or the plaintiff's consent (Rule 11.05).Close definition of Noted in default means the court records that the defendant did not respond. Your affidavit of serviceAffidavit of ServiceA sworn or affirmed statement that proves a document was served: who got it, what it was, and when, where and how it was delivered. In Small Claims Court it is Form 8A.Close definition of Affidavit of Service must be on file, so the court knows the defendant was served [VERIFY: filing requirement].

Step 2: Ask for judgment

What happens next depends on what you are claiming.

• A debt or fixed amount. If your claim is for a debt or fixed amountDebt or fixed amountA claim for an exact sum that is easy to work out, such as an unpaid loan or invoice. If the defendant is noted in default, the clerk can sign default judgment for this kind of claim (Rule 11.02).Close definition of Debt or fixed amount, such as an unpaid loan or invoice, you can ask the clerk for default judgment using Form 11B (Rule 11.02).
• Other kinds of damages. If the amount needs a judge to decide, such as the cost of damage or a loss that is harder to measure, you bring a motionMotionA request asking the court to make a decision on a specific issue during a case, such as more time or setting aside a default. It uses Form 15A and must be served at least 7 days before the hearing (Rule 15.01).Close definition of Motion in writing or ask for an assessment hearingAssessment hearingA short hearing where a plaintiff shows a judge evidence of how much they lost, after the defendant was noted in default. It is used when the claim is not for a fixed amount (Rule 11.03).Close definition of Assessment hearing (Rule 11.03). At an assessment hearing, you show the judge your evidenceEvidenceAnything used to prove a fact in court, such as documents, photos, messages and what witnesses say. The judge decides the case based on the evidence.Close definition of Evidence of how much you lost.

There may be a fee for these steps [VERIFY: fees for noting in default and default judgment].

For defendants: if you were noted in default

Being noted in default is serious, but it is not always the end.

Once you are noted in default, you cannot file a Defence without the court's permission or the plaintiff's consentConsentAgreement from the other side, usually in writing. Some steps can happen with the other side's consent instead of a court order.Close definition of Consent (Rule 11.05). You have two main paths.

Ask the plaintiff to consent

You can contact the plaintiff and ask them to agree, in writing, to let you file a Defence. Some plaintiffs agree, especially if you act quickly and have a real dispute.

Bring a motion to set aside

You can ask the court to set asideSet asideTo cancel or undo a court step, such as a noting in default or a default judgment. A defendant asks for this with a motion on Form 15A (Rule 11.06).Close definition of Set aside the noting in default, and any default judgment, with a motion on Form 15A: Notice of Motion and Supporting Affidavit (Rule 11.06). Your affidavit explains your side. It usually helps to explain:

• why you did not file your Defence on time
• that you acted as soon as you found out
• that you have a real defence to the claim

What the court looks at when it decides is set out in the rules [VERIFY: test the court applies under Rule 11.06]. A motion must be served at least 7 days before the hearing (Rule 15.01).

The deadlines at this stage

• Defence due: 20 days after the defendant was served (Rule 9.01). Our defence deadline calculator can estimate it.
• Motion to set aside: move quickly. There may not be a fixed deadline, but delay can hurt your chances [VERIFY].
• Motion service: at least 7 days before the hearing (Rule 15.01).
• Plaintiffs, the two-year warning: the clerk can dismiss a case for delay if it is not finished, and no trial date has been requested, by the second anniversary of the day it started (Rule 11.1.01).

Forms

• Form 9B: Request to Clerk, to note a defendant in default
• Form 11B: Default Judgment, for a debt or fixed amount
• Form 15A: Notice of Motion and Supporting Affidavit, to set aside a default or for a motion in writing
• Form 8A: Affidavit of Service, your proof that the defendant was served

Common mistakes

• Plaintiffs asking too early. Make sure the full 20 days, plus any extra time for mail, has passed.
• No proof of service on file. The clerk needs to see the defendant was served.
• Using Form 11B for an amount that is not fixed. If a judge needs to decide the amount, Rule 11.03 applies instead.
• Defendants waiting. Every week of delay makes it harder to explain to the court.
• Defendants filing a Defence anyway. After noting in default, you need permission or consent first (Rule 11.05).

What happens next

A plaintiff with a default judgment can move on to Collecting on a judgment. If the default is set aside, the defendant files a Defence and the case goes on to the Settlement conference.

Need to go back? See Responding to a claim.