Legal Blog

Setting Aside Noting in Default

Gill v. Chahal 2019 Ont SCJ

If a defendant fails to file a defence within the stipulated time, a plaintiff may note the defendant in default. When done, the defendant receives no more notice of any of the actions taken in the proceedings. It is the first step to obtaining a default judgment. A defendant may set aside a noting in default pursuant to Rule 19.03. The test for doing so follows: “When exercising its discretion to set aside a noting of default, a court should assess “the context and factual situation” of the case… It should particularly consider such factors as the behaviour of the plaintiff and the defendant; the length of the defendant’s delay; the reasons for the delay; and the complexity and value of the claim. These factors are not exhaustive.” The defendant was noted in default in 2013; the plaintiff brought a motion for summary judgment in 2018, at which time the defendant realised that there was a problem and moved to set aside the noting in default. In this case, the judge set aside the noting in default: there was little prejudice to the plaintiff; the defendant did not need to show a defence on the merits; and the defendant was self-represented and therefore deserved some leeway.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.