|
|
|
|
Legal Line® provides Free legal information to Canadians through its website, telephone and fax-on-demand systems.
1,000 topics are covered within 35 areas of law...
Search...
Ontario|Small Claims CourtDefending a Lawsuit 545 What if you do not file a defence To defend a lawsuit the defendant is required to file a Statement of Defence within 20 days of receiving a Statement of Claim. If you have received a Statement of Claim but you do not file a Statement of Defence, the judge may assume that you agree with the claims in the Statement of Claim, and may sign a default judgment. A default judgment usually allows the plaintiff to win the lawsuit because you did not fight it. With a default judgment the plaintiff is allowed to collect money from you right away. However, if there is a default judgment against you, but you had a good reason for not filing a Statement of Defence, you may still be able to fight the lawsuit if you get permission from a judge.
- Setting aside a default judgment
If you want to file a Statement of Defence after a default judgment has been signed, you will require a judge's order setting aside the judgment. To request a set aside, you will need to fill out two forms that are available at the Small Claims Court office. It will cost $40 to file the forms. The forms are: first, a Notice of Motion, and second, an Affidavit in Support of Motion. You must swear in front of a commissioner of oaths that the information in the Affidavit is true. A staff member at the Small Claims Court can commission your Affidavit.
- Attending court to set aside a default judgment
The staff at the Small Claims Court office will give you a time and date to appear in front of the judge. You must then deliver a copy of the Motion and Affidavit to the plaintiff at least seven days before the date you are scheduled to appear in front of the judge. If you serve the Motion and Affidavit on the plaintiff by mail, you must allow 12 days for the service.
When you appear in front of the judge, you must explain why you were late in filing your Statement of Defence. For example, if you recently moved, and the Statement of Claim was forwarded to your new address late, then you should explain this reason for late filing to the judge. Or, if you were out of the country or in hospital, and did not know that the Statement of Claim was at your home, you should explain this to the judge.
You must also be prepared to tell the judge what your defence is, so that the judge is satisfied there is a good reason to set aside the plaintiff's default judgment.
The judge will decide if your reasons are good enough. If the judge agrees with you, and signs an order allowing you to file a Statement of Defence you will have to file it within the time allowed by the judge. After you file a Statement of Defence you will be notified of a trial date.
If you are unsure about whether you have missed the deadline for filing a Statement of Defence, the staff at the Small Claims Court Office may be able to assist you.
|