By Stuart Cappus
To start a lawsuit against someone, you have to file a document with the court that sets out who you’re suing, why you’re suing them and what or how much you’re suing them for. This document is called a “Notice of Claim” or “Notice of Civil Claim” depending on what court you’re filing in. Once that document is filed, you have to personally serve it on the person you’re suing to ensure they have notice of the lawsuit. That person, now called the “defendant”, then has a set amount of time to file a response with the court.
If the defendant doesn’t file a response within that amount of time, you can apply for default judgment. Essentially, you’re asking the court to give you what you want because the defendant doesn’t care enough to respond.
If you’re suing the defendant because they’re indebted to you for a specific amount of money, the court may grant you default judgment by way of a “desk order” meaning that you don’t have to appear in court. If the amount of money you’re suing the defendant for still needs to be determined, you’ll have to appear in court and convince a judge how much you think you should get. In either case, your application will have to be supported by evidence in the form of an affidavit.
Once you have your default judgment you can use the various enforcement mechanisms to collect what you’re owed from the defendant.
If the defendant learns of the default judgment, they can apply to the court to have it set aside. To stand a chance of succeeding they’ll have to prove that they (a) didn’t intentionally fail to file a response; (b) made their application within a reasonable period of time after finding out about the default judgment or have a good explanation for any delay; and (c) have a good defence to the claim or at the very least one that should be looked into. If the judge agrees with the defendant, the default judgment will be set aside and the defendant will again be given a set amount of time to file a response to your lawsuit.