Default Judgment? How to Get Out and Get your Day in 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. At the very least, you know what to expect. Sometimes, however, a default judgment can catch you off guard.

What is a default judgment?

In small claims court, a default judgment is a judgment against the defendant. The court issues it without a trial or the defendant’s involvement.
It happens when a defendant does not file a defence in time. It may also happen when the defendant misses the trial or otherwise somehow procedurally mishandles the matter.
A default judgment is enforceable. It means that the plaintiff can try to collect on it right away. However, the Small Claims Court Rules give the defendant a chance to fix it and have the default judgment set aside (cancelled).

How to set a default judgment aside (cancel it).

To set aside a default judgment, the defendant must bring a motion. As a result, the judge must issue the requisite order. To be successful in the motion, the defendant must meet three tests:

Good defence

The defendant 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. First, however, the defendant must convince the judge that there are strong merits to her/his defence.
The defence should, potentially, lead to winning the case in full or in part. To meet this test, it’s usually a good idea to attach a copy of the defence to the motion.

A reasonable explanation of the failure to defend

Next, the defendant must provide a reasonable explanation as to why he or she did not file a defence in time or missed the trial.
A “reasonable” explanation gives some objective reasons that 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.”

Timing of the motion to set a default judgment aside

The final requirements relate to time. In all circumstances, the defendant should make his or her motion as soon as it is reasonably possible.
To this end, the Small Claims Court rules direct the court to consider whether the defendant filed a motion within a reasonable time.
The court takes 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. It depends on your circumstances.

additional court documents

Finally, the proper paperwork is last but not least. It is not enough to fill out the motion form.
The motion must come with a detailed affidavit of the defendant. To this end, the affidavit should include all explanations about the above tests in clear and convincing language.

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