I’ve been noted in default at Small Claims Court. What can I do?
Question & AnswerI’ve been noted in default at Small Claims Court. What can I do?
5. Go to your hearing
The date and time of your hearing is on your . Get there early so that you have time to find the right courtroom.
The day's list of cases is usually posted on a board near the entrance to the court or outside the courtroom. If you have trouble finding it, ask for help at the court counter.
Bring at least three copies of all of the documents you filed with the court. One for you, one for the judge, and one for the .
Before you see the judge, talk to duty counsel if they are available. Pro Bono Ontario provides lawyers known as duty counsel at Small Claims Courts in Toronto and Ottawa to give immediate legal help and advice to low-income people who appear in court without a lawyer. They can't help with your entire case, but they may be able to represent you or help you on your court day.
Give your evidence
Since you're the person who filed a Notice of Motion, you're called the moving party.
You will talk first. Tell the judge that you're asking the court to set aside the note that says you're in default. Explain why you're asking for this. Show the judge any evidence you have.
For example, if you got the Plaintiff’s Claim one week before you were noted in default, tell the judge you didn't get enough time to file your Defence. You were supposed to have 20 days to respond. Show the judge a courier's receipt to prove when you got the claim.
After you talk, the other party gets to tell their side of the story. They tell the court why they think you shouldn't be allowed to set aside the note that you're in default.
If the facts of the case are complicated, you may get to respond to what the other party said. This is called a rebuttal.
Get a decision
The judge may give you a decision right away, or they may wait and give you their decision later. When they wait to give you a decision, it's called a reserved judgment.
If the judge decides that you shouldn't have been noted in default, they will set aside the note in default. This means that you will be given time to file a Defence. Once you file a Defence, a settlement conference will be scheduled.
If the judge rules against you, you will still be noted in default. And the can ask the court for an order that you pay them what they're asking for. This is called getting a default judgment.