The first step in any BC Provincial Court case, often referred to as Small Claims, is for the defendant(s) to be served with a Notice of Claim. It is a requirement that if served within BC a Defendant must file a Reply within 14 days. If served outside BC the time period is 30 days. If a defendant fails to file a Reply within the required time frame the Claimant can apply for default judgement against them. If a Reply is filed and the court proceedings continue a party can still acquire default for failure of the opposing party to attend the settlement conference, trial conference or trial. The court may grant default judgement with or without a hearing depending on the damages claimed. If a hearing is required the Claimant is not required to notify the Defendant. A default judgement has the same force and effect as a judgement after a trail and a party can rely upon it immediately to enforce payment.
If a default judgement is taken out against a party then can apply to have the judgement set aside. If successful the matter would proceed forward as if default had never been attained. Often the party who default was granted against will have to pay the expenses the other party incurred to attain default. A party applying to set aside default must inform the court the reason they failed to file or attend, any reason for a delay in applying to set aside the default and the facts that support their claim or defence. When deciding whether or not to set aside a default judgement the court considers the principals as set out in Miracle Feeds v. D. & H. Enteprises Ltd., (1979), 10 B.C.L.R that the party who defaults is against:
1) Did not wilfully or deliberately fail to enter an appearance or file a defence to the claims;
2) Made the application to set aside the default judgement as soon as reasonably possible after obtaining knowledge of the defaults judgements, or can provide an explanation for any delay in the application being brought; and
3) Has a meritorious defence, or at least a defence worth of investigation.
As the delay in bringing the application is a consideration it is important to ensure that immediately upon becoming aware of a default judgement that you take steps to have it set aside.
It is essential that if you are named as a defendant in a Small Claims action that you file a Reply within the prescribed time frame and attended all court hearings including the settlement conference. Even if you are successful in having a default order overturned you will likely have to pay the expenses relating to the default order and if you are unsuccessful the other party will have a judgement then can enforce against without you being able to present your defence to the claim.