Area of Law: Small Claims Court
Answer # 545
What if you do not file a Defence?Region: Ontario Answer # 545
To defend a lawsuit, the defendant is required to file a Defence within 20 days of receiving a Plaintiff’s Claim. If you have received a Plaintiff’s Claim but you do not file a Defence, the judge may assume that you agree with the Plaintiff’s Claim, and may sign a default judgment against you. This means that the plaintiff will have won 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 Defence, there are two ways you may be able to fight the lawsuit.
Ask the Plaintiff to let you file a Defence
First, you can ask the Plaintiff(s) to agree to allow you to file a Defence. If everyone agrees to set aside the default and/or default judgment, you can fill in a Request for Clerk’s Order on Consent form. Once all the parties (Plaintiffs and Defendants) and a witness sign the document, bring the original form to the Court Office. Court staff will then remove the default and/or default judgment from your case. There is no fee for this process.
Set aside a default judgment
In all other cases, you will need a judge’s order setting aside the judgment. To request a a judge’s order setting aside the judgment. To request a judgment to be set aside, you will need to file a Notice of Motion and Supporting Affidavit form and pay a fee to the Small Claims Court office. In the presence of a commissioner for taking affidavits, you must swear that the information in the Affidavit is true. A lawyer or 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 the Affidavit to the plaintiff at least 7 days before the date you are scheduled to appear in court. If you serve the documents by mail, you must do so at least 12 days before the motion is to be heard because service by mail is considered to have occurred 5 days after mailing. The 5-day period allows time for the documents that were mailed to actually reach the plaintiff. The Motion, Affidavit and proof of service must then be filed with the court at least 3 days before the hearing date.
When you appear in front of the judge, you must explain why you were late in filing your Defence. For example, if you recently moved and the Plaintiff’s Claim was forwarded to your new address late, or, if you were out of the country or in hospital, and did not know that the Plaintiff’s Claim was at your home, then 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 Defence you will have to file it within the time allowed by the judge. After you file a Defence, a settlement conference will automatically be scheduled. The settlement conference will take place before going to trial, to give the parties a chance to reach a resolution. If an agreement cannot be reached, the parties will have to go to trial.
If you are unsure about whether you have missed the deadline for filing a Defence, the staff at the Small Claims Court Office may be able to assist you.
For more information about Small Claims Court in Ontario, visit the Ministry of the Attorney General.
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