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Difference between revisions of "Small Claims Default Order (20:VII)"
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Small Claims Default Order (20:VII) (view source)
Revision as of 21:57, 4 July 2016
, 21:57, 4 July 2016→A. Requesting a Default Order
Desy Wahyuni (talk | contribs) (Created page with "{{LSLAP Manual TOC|expanded = smallclaims}} If a defendant chooses not to defend a claim, the claimant wins by default. Evidence of the defendant’s choice not to defend th...") |
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At a hearing, a default order is not automatic. The claimant must give evidence and produce documents to prove the amount owing as well as convince the court that the default order should be granted153. | At a hearing, a default order is not automatic. The claimant must give evidence and produce documents to prove the amount owing as well as convince the court that the default order should be granted153. | ||
== B. Setting Aside Default Orders and Reinstating Claims == | |||
If a party obtains a default order or a hearing for assessment of damages is scheduled, the party in default can apply to a judge to set aside the default order154 and file a Reply155. The party in default must file the application as soon as possible upon learning of the default order and attach to the application an affidavit containing156: | |||
*a reasonable explanation for not filing a Reply (or failing to attend a mediation session, trial conference, or trial); | |||
*a reasonable explanation of any delay in filing the application; | |||
*the facts supporting the claim, counterclaim, or defence; and | |||
*why permitting the order would be in the interests of justice. | |||
The party in default must show that157: | |||
*the failure to file a Reply (or failure to attend a mediation session) was not wilful, deliberate or blameworthy; | |||
*the application to set aside the default order was made as soon as reasonably possible after obtaining knowledge of the default order158; | |||
*if there has been a delay in applying to set aside the default order, an explanation for the delay; and | |||
*if the party in default is the defendant, there is a defence that is not bound to fail. | |||
Where the party in default is a defendant who has not filed a Reply, the defendant should also bring copies of the Reply and be prepared to file them immediately if the judge grants permission. | |||
If the default order is cancelled, the party who obtained it may ask the court to award reasonable expenses that relate to the cancellation. These expenses may include the cost of filing the application for default order, significant travelling expenses, and lost wages that were incurred only as a result of the cancellation. | |||
