Difference between revisions of "Small Claims Default Order (20:VII)"

If a defendant chooses not to defend a claim, the claimant wins by default. Evidence of the defendant’s choice not to defend the claim can include the defendant’s failure to file a Reply.  

A claimant should not rush to the registry to file an Application for Default Order.   Sometimes, a defendant may have a good reason for not  filing a Reply on time and may have a defence to the claim that the court wishes to explore. In these circumstances, the court will set aside the default order and the claim will proceed in the ordinary course.   A default order should only be used where the defendant has truly elected  not to defend against the claim.  

A default order can also be obtained if a defendant does not attend a mediation session142.   If the defendant does not attend a settlement conference143, trial conference144, or trial145, the judge or justice of the peace may grant a payment order instead of the claimant having to apply for a default order.  

Unless the defendant was served outside of British Columbia or the court has otherwise ordered, a defendant has fourteen full days to file a Reply. This does not include the date the Notice of Claim was served and the date that the Application for Default Order is filed146.  

To apply for a default order, the claimant must file Form 5 and pay a $25.00 fee.   A certificate of service (Form 4) confirming service of the Notice of Claim and blank Reply form must also be in the file147. The claimant can ask the court to add the $25.00 fee plus reasonable expenses to the amount of the default judgment.

If the claim is for a specific amount of debt, the registrar will grant a default order for the amount claimed plus expenses and interest148. If the claim is for anything other than a specific amount of debt, the registrar will schedule a hearing before a judge149. Once a hearing has been set, the defendant cannot file a Reply without a judge’s permission150. If another defendant to the claim has filed a Reply and a date has been set for either a settlement conference, trial conference, or trial, the hearing will be held on that date151. A defendant is not entitled to notice of the hearing date152.  

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.

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: