After starting an action or application by issuing and serving a Notice of Action followed by a Statement of Claim or just by issuing a Statement of Claim, there is a possibility of dealing with certain matters that will end the dispute completely before a trial, or the hearing itself will be considerably shorter and/or much less costly.
Such matters include:
- default proceedings;
- summary judgment;
- determination of an issue before trial;
- a special case;
- abandonment; and
- dismissal of an action for delay.
The point is that these are all matters other than settlement, which can occur at any stage of a dispute.
Normally, by way of a motion, each of these matters can be handled. Motions determine an aspect of the dispute between the parties along the way to their ultimate disposition at a hearing or trial. Motions either cut off the process completely, or significantly shorten it.
If the defendant in an action fails to deliver a Statement of Defence within the prescribed time, the plaintiff may follow a two-stage process to obtain a default judgment, without further notice to the defendant. The first stage is universal while the second stage depends on the nature of the plaintiff’s claim.
Filing Proof of Service of Claim
In the first stage, the plaintiff requests the registrar to “note the defendant in default” by filing proof of service of the Statement of Claim. Then, the counter clerk at the court office enters the appropriate notation on the document showing the recorded steps taken in the action.
The consequence of a defendant being noted in default is far reaching. It means that such defendant is deemed to admit all allegations of fact made in the Statement of Claim. However, this deemed admission does not apply the judgment to the plaintiff’s claim for the relief sought in the first paragraph of the Statement of Claim.
Consequences of Default
Furthermore, a defendant who has been noted in default loses the right to deliver a defence or to take any step in the action. In addition, any step in the action which requires the consent of the defendant can be taken without such consent. Likewise, the defendant also loses the right to be informed of any further steps or services of any other document in the proceeding, except where the court orders otherwise.
After the defendant has been noted in default, the second stage of the procedure depends on the nature of the plaintiff’s claim. The plaintiff can obtain a “default” judgment against the defendant in a claim for:
- A debt or liquidated demand in money, including interest;
- The recovery of possession of land;
- The recovery of possession of personal property ; or
- The foreclosure, sale, or redemption of a mortgage.
The reason why the plaintiff obtains a default judgment from the registrar is that the plaintiff’s claim is for a “debt or other liquidated demand in money”. The plaintiff, therefore, will have alleged all of the facts surrounding the transaction being sued on in the Statement of Claim. The plaintiff also will have alleged that the defendant is indebted to the plaintiff in the amount that appears in the claim for relief in the first paragraph of the claim.
As the defendant supposedly admitted all allegations of fact, no judicial adjudication or evaluation of the plaintiff’s allegations of fact or entitlement to the relief claimed is required.
The registrar, after signing default judgment, shall fix the costs under the suggested/outlined Tariff , and include fixed costs in the judgment, unless the default judgment directs to a reference.
A claim requiring a motion before a judge for default judgment would involve a typical claim for general damages for tort or breach of contract.
Even though the defendant has admitted all allegations of fact, by no means it follows that the type of relief claimed by the plaintiff (for example, an injunction prohibiting the defendant from ever driving an automobile again) is appropriate.
Nor is the amount of damages claimed automatically appropriate. For example, for a relatively minor personal injury a plaintiff may ask for an exorbitant figure for damages. It is for a judge to adjudicate on the appropriateness of the relief.
Motion by Defendant
An option available to the defendant is to move for a summary judgment, dismissing all or part of the plaintiff’s claim, after delivering a Statement of Defence.
Where Trial is Necessary
A summary judgment from the court is not always obtained, nor does it grant all that is claimed. Yet, it can still make orders to expedite the proceeding by specifying the material facts that are not in dispute, defining the issues to be tried, and ordering a speedy trial.
The specified facts would be taken as established and the trial conducted accordingly, unless the trial judge orders otherwise to prevent injustice.
Stay of Execution
Even after a summary judgment, there could be issues, like a counterclaim, crossclaim, or third party claim remaining undetermined, hence the court may make an order staying enforcement of the summary judgment.
To raise a point of law mentioned in a pleading before a judge for the determination, before trial, can be a particularly effective strategy. More so, the pleadings can disclose a discrete question of law that can be clearly isolated from the contested issues of fact in the action.
On this motion, evidence is admissible only with leave or on consent of the court. The judge may make an order or grant judgment “where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs”.
A defendant also has the option to move before a judge to have an action stayed or dismissed on any of the following grounds:
- The court has no jurisdiction over the subject matter of the action;
- The plaintiff is without legal capacity to commence or continue the action, or the defendant does not have the legal capacity to be sued;
- Another proceeding is pending in Ontario or another jurisdiction between the same parties about the same subject matter; or
- The action is frivolous or vexatious, or is otherwise an abuse of the process of the court.
Contacting a lawyer the minute you are served with a claim is vital, the risk of being noted in default is immediate and the challenges to reverse the default judgement can be extremely costly; the lawyers at Levy Zavet PC should be your first line of defence.