The first sign is often an empty bank account. Your debit card is declined at the grocery store, or your payroll department tells you that part of your cheque is being sent to a court. You call the bank and hear the word “garnishment,” and you have no idea what it refers to. You go back through your mail and eventually discover a judgment from a lawsuit you never knew about, or one you forgot about after a stressful move.
A default judgment is a judgment given because the defendant did not respond in time. No judge has necessarily heard your side of the story. That does not make it weak, since it can be enforced like any other judgment. It does mean, however, that Ontario law provides a route for asking the court to set it aside, as long as you act properly and you act quickly.
This article gives general information about the process in Ontario and is not legal advice. If you have just found out about a judgment against you, the single most useful thing you can do is stop waiting.
How Default Judgments Happen
In most civil cases, a defendant has a short time to respond after being served. In Ontario’s Small Claims Court, that is 20 days after service. In the Superior Court of Justice, a statement of defence is generally due within 20 days of service in Ontario, with longer periods for defendants served elsewhere.
If that time passes with no response, the plaintiff can ask to have you noted in default. In the Superior Court, Rule 19.02 says a defendant noted in default is deemed to admit the truth of the facts alleged in the statement of claim, and may not deliver a defence or take other steps, apart from a motion to set aside the noting of default or judgment, except with leave of the court or the plaintiff’s consent. Small Claims Court has its own version of these rules.
Where the claim is for a debt or other fixed amount, the clerk or registrar may simply sign judgment. If the amount is not fixed, the plaintiff generally must prove it through a motion or a hearing.
Common explanations include:
- The claim went to an old address after a move.
- It was left with a relative or roommate who never handed it over.
- A corporation’s registered office was out of date, so the claim sat at the old location.
- You thought the matter had been settled.
- You thought your insurer or a business partner was dealing with it.
- You received it during a period of serious illness, or while you were out of the country.
- You did not understand the document, whether because of language or because it looked like junk mail.
Some of these explanations will help you much more than others. A truthful account is essential in every case.
Step One: Get the Court File
Before you can decide what to do, you need to know what happened. Contact the court office where the judgment was issued. If it was in Brampton, the courthouse is at 7755 Hurontario St. Ask for copies of the claim, the affidavit of service, the noting in default, and the judgment. Your enforcement paperwork should include the court file number.
Read the affidavit of service closely. It says when, where, how, and on whom the claim was served. Was your name correct? Was that your address at the time? Do you know the person who supposedly accepted it? Were you in the country on that date? Inaccuracies here may be the heart of your motion. Under the Superior Court rules, Rule 16.07 specifically allows a person to show that a document, though served in accordance with the rules, did not come to their notice or came to their notice only later. Save the envelope, any courier records, and any proof that you lived elsewhere.
Record the date you found out about the judgment and how. That date is going to matter.
Try the Plaintiff First
Before filing a motion, contact the plaintiff or their lawyer in writing. It may sound unlikely, but a plaintiff sometimes agrees to set aside a default judgment if you have an obvious issue with service and are ready to defend. A consent can save everyone the expense of a contested motion. In Small Claims Court, Rule 11.2.01 allows the clerk to make a consent order setting aside the noting in default or default judgment, and any specified enforcement step that has not yet been completed, on a request signed by all parties.
A negotiated resolution may also make more sense than a motion. If you really do owe the money, you might be better off working out a payment arrangement, particularly because a successful motion only gets you back to the start of the lawsuit. It does not mean that you have won.
Do not let those discussions delay your motion if the other side is not cooperating. Delay may hurt you, and the plaintiff has no obligation to wait or to stop enforcing while you talk.
The Small Claims Court Test
Rule 11.06 of the Rules of the Small Claims Court sets out a clear test. The court may set aside a noting in default or default judgment, and any step taken to enforce the judgment, on such terms as are just, if it is satisfied that:
- the party has a meritorious defence and a reasonable explanation for the default, and
- the motion is made as soon as is reasonably possible in all the circumstances.
The procedure uses a notice of motion and supporting affidavit in Form 15A. You obtain a hearing date from the clerk, serve the materials, and file them with proof of service, following the deadlines in the rules and paying the filing fee. Your supporting affidavit must be sworn before a commissioner for taking affidavits. It is often worth attaching your proposed Defence (Form 9A), so the court can see what you plan to say.
Costs on a Small Claims motion are limited under Rule 15.07, unless special circumstances exist. But a judge can impose terms on setting aside, which may include payment of the plaintiff’s costs thrown away.
The Superior Court Test
The Superior Court’s rules are worded more broadly. Rule 19.03 lets the court set aside the noting of default on such terms as are just, and Rule 19.08 allows a default judgment to be set aside or varied on such terms as are just. If the judgment came after a motion or a trial, the motion goes to a judge.
In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, the Court of Appeal for Ontario described the court’s ultimate task as deciding whether the interests of justice favour granting the order. The court considers factors including how quickly the defendant moved after learning of the judgment, whether there is a plausible explanation for the default, whether the defendant has an arguable defence on the merits, the balance of prejudice between the parties, and the effect of any order on the overall integrity of the administration of justice. These factors are not rigid rules. Later decisions have continued to apply and refine them.
Unlike in Small Claims Court, your materials in the Superior Court typically take the form of a motion record, with a detailed affidavit and, ideally, a draft statement of defence. In Brampton, motions are scheduled according to the Central West Region’s practice direction, so confirm the current booking process before you pick a date.
Building a Strong Motion
Whichever court you are in, the evidence tends to fall into the same categories.
Promptness. Set out the date you learned about the judgment and everything you did from that point. Include calls to the court, attempts to get a lawyer, and contact with the plaintiff. Weeks of inactivity after you know about a judgment are hard to explain. Courts are understanding about real obstacles, but they expect you to treat the problem as urgent.
Your explanation. Be specific and support it with documents. Moved house? Attach your lease or utility bills. Out of the country? Include your travel records. Were you ill? Attach medical letters. A corporation with an outdated registered office may have a harder time, since keeping that information current is the company’s job. If your explanation is simply that you ignored the document, say so frankly, and get advice on how to proceed.
Your defence. You do not need to prove you would win. You need to show that there is a real issue to try. “I don’t owe this” is not enough. Explain why: you paid and here is the receipt, you were never a party to the contract, the debt is past the limitation period, or the amount is wrong. Attach whatever you have. In a case about a debt you do not recognize, consider asking whether it may involve identity theft or a person with a similar name.
Prejudice. Think about how the order would affect each side. Are witnesses still available? Did the plaintiff act on the judgment in some way that cannot be reversed? Are your wages or business operations being badly affected by enforcement? Be honest about the plaintiff’s position as well as your own.
What About Enforcement in the Meantime?
Filing a motion does not automatically halt collection. Be sure to look at this issue separately. Ask the court, as part of your motion or by a separate request, for a stay of enforcement. Small Claims Rule 20.02 allows the court to stay enforcement of an order on just terms. In the Superior Court, you should also note that the rules on appeals treat default judgments as an exception to the automatic stay. A notice of appeal will not simply stop enforcement, and an appeal is rarely the right first step anyway.
A judge may be willing to order that garnished funds stay in court rather than be paid out, or may require you to pay money into court as a condition of granting relief. Be prepared to address this. If you have a writ registered against your home, and it is affecting a sale or a refinancing, tell your lawyer right away.
Our page on civil motions and applications explains how this type of motion fits into the wider process.
After a Successful Motion
If you win, you will generally have a short deadline to file your defence, and you must meet it. The lawsuit then carries on from there, with a settlement conference in Small Claims Court, or with pleadings, discovery, and other steps in the Superior Court. The court may also attach conditions. Read the order carefully and calendar each date.
If you lose, ask right away whether any appeal or further step is available, and whether a negotiated payment plan could limit the damage. Time limits on appeals are short.
Three mistakes are worth avoiding at this stage:
- Hoping it goes away. Interest continues to run, enforcement can escalate, and delay itself weakens your motion.
- Filing a defence without dealing with the default. A noted defendant generally cannot simply deliver a defence. The default must be addressed first.
- Giving an inaccurate affidavit. Saying you never received something when the other side has a signed delivery slip can sink your credibility, and a false affidavit has serious consequences.
Getting Help
These motions are often urgent and can be decided on a thin set of documents, so the quality of your evidence matters. Bring to your first meeting your enforcement papers, any court documents, your proof of address and travel, and a short timeline. Our civil litigation team can review the file with you, and you can contact our office as soon as you find out about the judgment. A default judgment is serious, but the rules recognize that people deserve a fair chance to answer a claim when they have a reasonable basis for doing so.