Disposition Without Trial and Enforcement of Orders

• Author: Tina Kamakaris/Jane Kamakaris/Louis Kamakaris
• Pages: 279-298

279

Chapter 18 Disposition Without Trial and Enforcement of Orders

CHAPTER 18

is chapter details the procedural steps in situations where a defendant fails to defend an

action or a judgment debtor fails to pay the damages ordered.

DEFAULT JUDGMENT

Rule 19 of the Rules of Civil Procedure provides for default proceedings. Obtaining a

default judgment is one way of ending an action without going to trial. If a defendant fails

to serve and le a statement of defence or a notice of intent to defend within the required

time limit or at all, the plainti may automatically sign judgment against the defendant.

Such a judgment is known as a default judgment because the defendant defaulted in

responding to the plainti’s statement of claim. Obtaining a default judgment, then,

means the plainti won the action without going to trial. Figure 18.1 shows the steps in

obtaining a default judgment in actions for liquidated and unliquidated damages. In

either case, obtaining default judgment ends the action.

Figure 18.1

STEPS IN DEFAULT JUDGMENT

Statement of Claim, ∏

LIQUIDATED DAMAGES UNLIQUIDATED DAMAGES

Requisition for Default Judgment, ∏ Motion Record, ∏

Draft Default Judgment, ∏ Draft Default Judgment, ∏

Bill of Costs, ∏ Bill of Costs, ∏

Motion Hearing

∏ (Greek pi) = Plainti

Legal TIP

A statement of claim for

money only involves

an action for liquidated

damages; a statement

of claim general

involves an action for

unliquidated damages.

DISPOSITION

WITHOUT TRIAL

AND ENFORCEMENT

OF ORDERS

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

280 Legal Office Procedures

DEFAULT JUDGMENT IN LIQUIDATED DAMAGES

Obtaining default judgment in liquidated damages is automatic because liquidated

damages usually represent a clear cut debt that the defendant owes to the plainti and

that the plainti claimed in the statement of claim, e.g. the defendant failed to pay back a

money loan. In a claim for liquidated damages, the plainti can obtain default judgment

from the local registrar upon ling the following documents:

1. Proof of service of the statement of claim.

2. A requisition for default judgment (Form 19D). is requisition instructs the local registrar

to note the defendant in default (basically, make a note in the court le that the defendant

has not led a statement of defence) and to sign the default judgment against the defendant.

Under subrule 19.01(4), if a party is under disability, the party may be noted in default only

with leave by a judge obtained on motion under rule 7.07.

3. A draft default judgment (Form 19A). is is the default judgment you are requesting the

local registrar to sign.

4. A bill of costs (Form 57A). e bill of costs itemizes the lawyer’s legal fees and disbursements

to date, usually according to the tari. e defendant must pay these costs since he or she is

deemed to have lost the case.

5. Applicable court fees.

Typically, the local registrar checks the court le to conrm that the defendant has, in fact,

failed to le a statement of defence and, if that is so, signs the default judgment which

the plainti enters in the same manner as a trial judgment. Once the default judgment

is signed, it means the plainti won the case in the amount of damages claimed in the

statement of claim as well as legal costs, usually in the amount set out in the bill of costs.

PREPARATION AND DISTRIBUTION OF REQUISITION FOR DEFAULT

JUDGMENT (FORM 19D)

You require: e statement of claim with proof of service. Follow along in Precedent

18.1. Notes on items not self-explanatory follow:

Key same title of proceeding and court le number as shown in statement of claim.

Part B - Principal sum is usually the total amount of damages claimed in statement of

claim, e.g. $35,000. Prejudgment interest date is date the debt occurred; it is usually

in statement of claim, e.g. July 1. “End Date” usually means date default judgment is

signed, e.g. October 30; total number of days on which prejudgment interest is payable

is from date debt occurred to date default judgment signed, e.g. 122 days (July 1 to

October 30). If statement of claim does not specify rate of prejudgment interest, obtain

prejudgment rate as of date the debt occurred from website of Ministry of Attorney

General, e.g. 10% as at July 1, and calculate as form instructs; enter each total of

principal and interest on respective lines. Enter combined total of principal and interest

on “Sign Judgment for” line.

Part C - Postjudgment interest - paragraph 1 - Rate of postjudgment interest is usually not

stated in the statement of claim because the date of signing default judgment, if any, is not

known at the time of preparing the statement of claim. Obtain postjudgment interest rate

from the website of Ministry of Attorney General as of the date default judgment is signed,

Legal TIP

If the defendant can

show good reason for

failing to file a statement

of defence, he or she

may make a motion to

set aside the default

judgment and be

permitted to defend

the action.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.