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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
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 an file a defence with proof of service in the time prescribed
What types of defendants are excepted from being noted in defautl
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
dat 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 is Form
15A
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
