DR- Chapter 10

• Part 7 claim


  A type of legal claim
• Defendant's response


  • Admit the whole claim
  • Contest (object to) the whole claim
  • Admit only part of the claim
  • Contest the claim but needs more time
• Defendant's options


  1. File an admission

  2. File a defence

  3. File an acknowledgment of service
• Admission


  A clear admission of liability by the defendant
• Defendant makes an admission


  Claimant is entitled to apply for judgment
• Money claim


  A claim where the claimant is seeking a money judgment from the defendant
• Procedure for admission of a money claim

  1. Admission of whole claim for specified amount

  2. Admission of claim for unspecified amount
• Acknowledgment of service


  An optional step where the defendant is unable to file a defence within 14 days or wishes to dispute the court's jurisdiction
• Filing an acknowledgment of service

  1. Indicates the defendant wishes to defend the claim

  2. Provides additional time to file the defence (28 days total)
• Defence


  A document filed by the defendant to defend all or part of a claim
• Filing a defence


  1. Must be filed within 14 days of deemed service of particulars of claim

  2. Can be extended to 28 days by filing acknowledgment of service

  3. Can be extended up to 56 days by written consent from claimant

  4. Can be extended by court order
• If a defence is not filed, judgment in default may be entered in favour of the claimant
• If a defence is not filed and the claimant fails to seek default judgment, the claim will be stayed (put on halt) after 6 months
• Defences

  
• Default judgment


  Enables the claimant to obtain an early resolution of their action, without a trial, where the defendant fails to file an acknowledgment of service or a defence within the time limits prescribed by the court rules
• When may an application or a request for default judgment be made?

  1. Defendant fails to file an acknowledgment of service or a defence within the time limits prescribed by the court rules (within 14 days of service of the claim form)

  2. Default judgment does not apply when there is an application pending to strike out the claim or an application for summary judgment is pending

  3. Procedure is modified for certain claims (e.g. where the claim includes a claim for any other remedy)

  4. Defendant cannot obtain a default judgment on a counterclaim against a claimant on the basis of failure to acknowledge service

  5. Special rules apply when a defendant is a child or protected party

  6. Claimant rather than the court serves the claim form, default judgment cannot be entered until a certificate of service is filed

  7. Special provision for obtaining default judgment against defendants sued in the alternative and those sued jointly or jointly and severally
• Procedure for seeking default judgment

  1. Filing a request (for specific amount of money, delivery of goods, or sum of money to be determined by the court)

  2. Application to the court (for all other claims or where r12.9 or 12.10 apply)
• Filing a request for default judgment

  1. Complete relevant form (N225 for specified amount of money or N227 for unspecified amount)

  2. Lodge form at court, no fee required

  3. If requirements are met, judgment will be entered
• Application to the court for default judgment(used when claiming against more than 1 defendant or DJ for costs only

  1. Complete Form N244 with supporting evidence

  2. Pay fee for "application"

  3. Give notice of application to defendant (unless defendant has failed to lodge an acknowledgment of service or an exception under r12.11(4) applies)

  4. At court hearing, if requirements made out, judgment will be entered
• the process for applying for default judgement

  
• Default judgment


  A judgment entered by the court when a defendant fails to respond to a claim
• How can a default judgment be set aside

  1. Part 13 sets out the rules and procedure

  2. Court must set aside default judgment when a ground listed in r13.2 is established

  3. Court may set aside default judgment if defendant can show they have a real prospect of successfully defending the claim or establish some other good reason
• Grounds for court to must set aside default judgment (r13.2)

  • Judgment entered too early
  • Judgment made after defendant applied to strike out or immediately dismiss claim, but application not concluded
  • Judgment entered even though whole claim paid or settled
  • Judgment entered after defendant filed admission but request for time to pay not dealt with
• Grounds for court to may set aside default judgment (r13.3(1))

  • Defendant has a real prospect of successfully defending the claim
  • Defendant establishes some other good reason why judgment should be set aside and defendant permitted to defend
• In exercising discretion under r13.3, court must consider whether application to set aside made promptly
• Evidence required to set aside default judgment

  1. Where court must set aside (r13.2): only need to submit chronology or facts bringing application under r13.2, may be considered as paper hearing without notice

  2. Where court may set aside (r13.3): need to submit evidence addressing prospects of success of defence, other good reasons, and promptness of application
• Procedure for having default judgment set aside

  1. Application made in normal way using Form N244

  2. Claim for specified sum: automatically transferred to defendant's home court if defendant is individual, or claimant's preferred court if defendant not individual

  3. Need to demonstrate defence has real prospect of success and application made promptly

  4. Application on notice with required fee
• setting aside a default judgement