Disposition without a trial

Question 1

a trial might not take place if any of the following occur:

Answer 1

• matter settles
• defendant does not file a defence, permitting default judgement
• plaintiff does not advance the proceeding, court dismisses action as abandoned
• plaintiff voluntarily discontinues action
• parties consent to dismissing action
• a party/proceeding is declared vexatious

Question 2

where a defendant to a plaintiff’s claim or defendant’s claim fails to file a defence within 20 days, the clerk may

Answer 2

note the defendant in default. The plaintiff must request to note the defendant in default per Form 9B, and proof that the claim was served within the court’s territorial division

Question 3

noting in default means that the defendant

Answer 3

cannot participate in the proceeding, and has lost the right to file a defence or take any other steps in the proceeding, other than bringing a motion to set aside the noting in default.

Question 4

once noted in default, the only right to service the defendant has is;

Answer 4

• service of the default judgement
• ammendment of the claim or defence
• motion after judgement
• postjudgement proceedings against the debtor

Question 5

the default judgement form is

Answer 5

Form 11B

Question 6

A default judgement form can be signed for a claim that is either

Answer 6

a debt or a liquidated demand, including interest if claimed in the plaintiff’s claim. Aka amounts easily quanitified by receipts or a simple calculation

Question 7

A default judgement does not preclude the plaintiff from

Answer 7

proceeding on the remainder of the claim that is not liquidated or against any other defendant

Question 8

To obtain a default judgement on part of a claim that is unliquidated, the plaintiff must either:

Answer 8

• file a notice of motion requesting a motion in writing for an assessment of damages, OR
• file a request to clerk fo9r an assessment hearing.

Question 9

A request to clerk form is Form

Answer 9

9B

Question 10

When the plaintiff has noted one defendant in default but other defendants have filed a defence, the matter must

Answer 10

proceed to a settlement conference and if necessary, a trial

Question 11

to set aside a noting in default, the defendant must

Answer 11

file a motion and supporting affidavit to satisfy the court that the defendant:
- has a meritorious defence
- has a reasonable explanation for the default
- has brought the motion as soon as is reasonably possible for the circumstances

Question 12

Unless the court orders otherwise, the clerk of the court shall make an order dismissing an action for delay, if

Answer 12

by the second anniversary of the commencement of the action:
- the action has not been disposed of by order; and
- the plaintiff has taken no step under rule 11.03 to obtain judgement and no trial date has been requested

Question 13

An order dismissing an action is not available if

Answer 13

• an offer to settle the action has been accepted and filed
• the defence contains an admission of liability and proposal for terms of payment under rule 9
• at the time the clerk would otherwise have to dismiss the action, the plaintiff is under disability

Question 14

If an action against a defendant who has made a defendant’s claim is dismissed for delay, the defendant’s claim is deemed to be dismissed

Answer 14

60 days after the order under rule 11.1.01(1) is served, unless the court orders otherwise during those 60 days

Question 15

What form is filed for a discontinuance?

Answer 15

Form 11.3A

Question 16

What matters can be dealt with by a clerk’s order, instead of a motion/appearing before a judge?

Answer 16

• ammending a claim/defence less than 30 days before trial date
• adding/deleting/subbing a party less than 30 days before trial date
• setting aside the noting in default of a party
• setting aside a default judgement made against a party
• setting aside any enforcement steps taken provided the step has not yet been completed
• restoring to the list a matter that was dismissed
• noting that payment has been made in full satisfaction of the judgement/settlement terms
• dismissing the action

Question 17

What form is filed for a request for clerk’s order on consent?

Answer 17

Form 11.2A

Question 18

What is vexatious proceedings?

Answer 18

Under section 140(1) of the Courts of Justice Act, a judge of the SUperior Court of Justice my prohibit a person from commencing a proceeding where that person has persistently and without grounds instituted vexatious proceedings in any court, or conducted a proceeding in a vexatious manner.