Chapter 5: Acting for the Plaintiff: Default Proceedings

When does a small claims court proceeding start

when the claim is issued by the clerk

Deponent

person whose evidence is contained in an affidavit

Effected service

carry out or perform valid service of a document

Defence must be filed, served, and issued ___ days from what date

20 days

date the service becomes effective

In a liquidated claim, ____ determines how much money the defendant owes the plaintiff

documentary or other evidence

In unliquidated claims, how is the amount of damages determined

by the court based on all the evidence provided

Two steps to a default proceeding

noting of default

default judgment

To note a defendant in default, fill out Form ___

Form 9B

Who notes a party in default

the clerk

What document is required to present to the clerk when requesting a noting of default

affidavit of service

For a person under disability, noting in default can only be done with

leave of the court

Leave of the court means

permission from the court to do something

What are the consequences to a defendant of being noted in default

cannot file a defence

cannot take any other procedural step without plaintiff’s consent or court order

A defendant in default is not entitled to ____ and does not have to _

notice of any step taken by other parties with a few exceptions

does not have to be served with any document

A defendant in default will be notified of/served with

default judgment

amendment of claim or defence

motion after judgment is signed

documents in enforcement proceedings against a debtor

As a general rule, who may be noted in default

any defendant in a plaintiff’s claim who fails to serve and file a defence with proof of service in the time prescribed

What types of defendants are excepted from being noted in default

person under disability

defendants served outside of court’s territorial jurisdiction

For which types of claim can noting in default be done by the clerk

liquidated (all or part of the amount)

If a claim is for partial liquidated and partial unliquidated claims, what will the clerk do

sign off on only the liquidated portions

Once noting in default is signed against one defendant, what may a plaintiff do with regards to co defendants who are not in default

proceed against them for the full amount of the claim

Documents to be filed to obtain default judgment

affidavit of service

request to clerk

draft default judgment

Affidavit of service is Form

8A

Affidavit of Service (Form 8A) does what

proves service of a plaintiff’s claim on defendant

Request to clerk is form

Form 9B

Request to Clerk (Form 9B) is a form to

request defendant be noted in default and that the clerk sign judgment against the defendant

Default judgment is form

Form 11B

Default judgment (Form 11B) does what

names defendant and states amount of debt, pre judgment interest, costs, post judgement interest rate

Pre judgment interest is calculated from when to when

date that cause of action arose to date of judgment

Post judgment interest rate starts _ and ends -

date after day of judgment

date all amounts owing are paid in full

Two options for post judgment interest rates

rate under the courts of justice act (if no agreement)

rate agreed to in a signed agreement (default)

When there is nothing in writing about the term of the debt, the start date of interest owing will

begin to accrue on date the cause of action arose

End date of interest owing calculation

date draft default judgment is prepared

Who is responsible for serving a default judgment on parties named in the claim

the clerk

What type of default judgment can the clerk of the court NOT sign

against a defaulting party to a defendant’s claim

Conditions for plaintiff to obtain default judgment in an unliquidated claim

all defendants were served within the territorial division

all defendants have been noted in default

Options to obtain default judgment in an unliquidated claim

request motion for assessment of damages

file request for assessment hearing

Notice of motion and supporting affidavit (Form 15A) sets out

reasons why motion should be granted and has relevant documents attached

T/F: when requesting motion for assessment of damages, plaintiff is required to prove liability against defendant noted in default

False

At a motion for assessment of damages a plaintiff IS required to prove

amount of the claim

If judge is not satisfied with written evidence presented at motion for assessment of damages ,they may order

further affidavit be provided

assessment of damages be determined at assessment hearing

Assessment hearing must happen when

one or more defendants have filed a defence

A court will set aside noting of default or default judgment if

moving party has meritorious defence

moving party has reasonable explanation for default

motion is made as soon as reasonably possible

Motion to set aside noting in default is served - and filed -

on all parties at least 7 days before hearing date

with proof of service at least 3 days before the hearing date