Default Judgment: You Can Still Get Your Day in Small Claims Court

Surprises are not always pleasant. This is especially true when surprises come from the court. In most cases you would have an idea of what’s going on in your Small Claims Court procedure, or at least know what to expect. Sometimes, however, a default judgment can catch you off guard.

In small claims court, a default judgment is a judgment that is issued against a defendant without a trial or the defendant’s involvement.  It happens when a defendant did not file a defence in time, missed the trial date or otherwise somehow procedurally mishandled the matter.

A default judgment is enforceable, meaning the plaintiff can try to collect on it right away. However, the Small Claims Court Rules do give the defendant a chance to fix the situation and have the default judgment set aside (cancelled). In order to set aside a default judgment, the defendant must bring a motion and the judge must issue the requisite order. In order to be successful in the motion, the defendant must meet three tests:

  1. The defendant or her paralegal must show a Small Claims Court judge that she has a good defence against the plaintiff’s claim. The judge won’t actually consider the evidence and witness testimony as such, but he or she must be convinced that there are strong merits to the defence which could, potentially, lead the defendant to win the case in full or in part when the matter is considered at trial. In order to meet this test, it’s usually a good idea to attach a copy of the defence to the motion (if no defence had been filed).
  2. Next, the defendant is obliged to provide a reasonable explanation as to why he or she did not file a defence in time or missed the trial. A “reasonable” explanation is one that gives some objective reasons which prevented the defendant from taking proper procedural steps in his or her Small Claims Court matter. It is best not to use such justifications as “I forgot”, “I did not know” or “I did not consult a paralegal or lawyer.”
  3. The final requirements relates to time. In all circumstances, the defendant should make his or her motion to set aside the default judgment as soon as it is reasonably possible. To this end, the rules of the Small Claims Court direct the court to consider whether the motion was filed within a reasonable time after taking into account the specifics of the defendant’s situation. There is no set period of reasonableness. In practice, this means that the Small Claims Court may consider a certain period of time reasonable or not, depending on your circumstances.

Finally, the proper paperwork is last but not least. It is not enough to just fill out the motion form. The motion must come with a detailed affidavit sworn by the defendant, which includes all explanations pertaining to the above tests in clear and convincing language.

It is always best to stay on top of the Small Claims Court procedure, but this may not always be possible. If you had missed something, the Court is generally ready to set aside the default judgment if you can provide a reasonable explanation of the situation. Everyone deserves their day in court. 

Sylvie, Toronto

I really appreciated your attention to details, your level of preparation which was impressive, and enthusiasm. I am really happy we have Spectrum Paralegal in our corner. Thank you for being the champion of our small claims court!