Rule 11 – Default Proceedings

Noting Defendant in Default

11.01 (1) If a defendant to a plaintiff’s claim or a defendant’s claim fails to file a defence to all or part of the claim with the clerk within the prescribed time, the clerk may, when proof is filed that the claim was served within the territorial division, note the defendant in default.  O. Reg. 78/06, s. 24.

Electronic Filing

(1.1) In the case of a plaintiff’s claim that was issued electronically under rule 7.04, the plaintiff may file the proof referred to in subrule (1) electronically. O. Reg. 44/14, s. 8.

Leave Required for Person under Disability

(2) A person under disability may not be noted in default under subrule (1), except with leave of the court.  O. Reg. 78/06, s. 24.

Service Outside Territorial Division

(3) If all the defendants have been served outside the court’s territorial division, the clerk shall not note any defendant in default until it is proved by an affidavit for jurisdiction (Form 11A) submitted to the clerk, or by evidence presented before a judge, that the action was properly brought in that territorial division.  O. Reg. 78/06, s. 24.

Electronic Filing

(4) In the case of a plaintiff’s claim that was issued electronically under rule 7.04, the plaintiff may file the affidavit for jurisdiction electronically. O. Reg. 44/14, s. 8.

Default Judgment, Plaintiff’s Claim, Debt or Liquidated Demand

11.02 (1) If a defendant has been noted in default, the clerk may sign default judgment (Form 11B) in respect of the claim or any part of the claim to which the default applies that is for a debt or liquidated demand in money, including interest if claimed.  O. Reg. 78/06, s. 24.

(2) The fact that default judgment has been signed under subrule (1) does not affect the plaintiff’s right to proceed on the remainder of the claim or against any other defendant for all or part of the claim.  O. Reg. 78/06, s. 24.

Manner of Service of Default Judgment

(3) A default judgment (Form 11B) shall be served in accordance with subrule 8.01 (4). O. Reg. 78/06, s. 24; O. Reg. 44/14, s. 9; O. Reg. 38/16, s. 4.

Default Judgment, Plaintiff’s Claim, Unliquidated Demand

11.03 (1) If all defendants have been noted in default, the plaintiff may obtain judgment against a defendant noted in default with respect to any part of the claim to which rule 11.02 does not apply.  O. Reg. 78/06, s. 24.

(2) To obtain judgment, the plaintiff may,

(a) file a notice of motion and supporting affidavit (Form 15A) requesting a motion in writing for an assessment of damages, setting out the reasons why the motion should be granted and attaching any relevant documents; or

(b) file a request to clerk (Form 9B) requesting that an assessment hearing be arranged.  O. Reg. 78/06, s. 24; O. Reg. 393/09, s. 9.

Electronic Filing

(2.1) If the plaintiff wishes to obtain judgment and the plaintiff’s claim was issued electronically under rule 7.04,

(a) the plaintiff may file the documents referred to in clause (2) (a) electronically, subject to subrule (2.2); or

(b) if the plaintiff wishes to request an assessment hearing, the plaintiff may file a request with the clerk electronically, and the use of Form 9B is not required for the purpose. O. Reg. 38/16, s. 5.

Requirement to File in Paper Format

(2.2) Despite clause (2.1) (a), the documents referred to in clause (2) (a) shall be filed with the clerk by the plaintiff in paper format within 14 days after the day the documents are filed electronically. O. Reg. 38/16, s. 5.

Inadequate Supporting Affidavit

(3) On a motion in writing for an assessment of damages under clause (2) (a), a judge who finds the plaintiff’s affidavit inadequate or unsatisfactory may order that,

(a) a further affidavit be provided; or

(b) an assessment hearing be held.  O. Reg. 78/06, s. 24.

Assessment Hearing

(4) If an assessment hearing is to be held under clause (2) (b) or (3) (b), the clerk shall fix a date for the hearing and send a notice of hearing to the plaintiff, and the assessment hearing shall proceed as a trial in accordance with rule 17.  O. Reg. 78/06, s. 24.

Matters to be Proved

(5) On a motion in writing for an assessment of damages or at an assessment hearing, the plaintiff is not required to prove liability against a defendant noted in default, but is required to prove the amount of the claim.  O. Reg. 78/06, s. 24.

Service of Order

(6) An order made on a motion in writing for an assessment of damages shall be served by the clerk in accordance with subrule 8.01 (5).  O. Reg. 78/06, s. 24.

No Assessment where Defence Filed

(7) If one or more defendants have filed a defence, a plaintiff requiring an assessment of damages against a defendant noted in default shall proceed to a settlement conference under rule 13 and, if necessary, a trial in accordance with rule 17.  O. Reg. 78/06, s. 24.

Default Judgment, Defendant’s Claim

11.04 If a party against whom a defendant’s claim is made has been noted in default, judgment may be obtained against the party only at trial or on motion.  O. Reg. 78/06, s. 24.

Consequences of Noting in Default

11.05 (1) A defendant who has been noted in default shall not file a defence or take any other step in the proceeding, except making a motion under rule 11.06, without leave of the court or the plaintiff’s consent.  O. Reg. 78/06, s. 24.

(2) Any step in the proceeding may be taken without the consent of a defendant who has been noted in default.  O. Reg. 78/06, s. 24.

(3) A defendant who has been noted in default is not entitled to notice of any step in the proceeding and need not be served with any other document, except the following:

1. Subrule 11.02 (3) (service of default judgment).

2. Rule 12.01 (amendment of claim or defence).

3. Subrule 15.01 (6) (motion after judgment).

4. Postjudgment proceedings against a debtor under rule 20.  O. Reg. 78/06, s. 24.

Setting Aside Noting of Default by Court on Motion

11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that,

(a) the party has a meritorious defence and a reasonable explanation for the default; and

(b) the motion is made as soon as is reasonably possible in all the circumstances.  O. Reg. 78/06, s. 24.