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.

Where a defendant has not filed a Reply on time, it is a good idea to contact the defendant to determine why the Reply was not filed and to advise the defendant that a default order will be obtained if a Reply is not filed.

A default order can also be obtained if a defendant does not attend a mediation session (Rules 7.2(25), 7.3(40), and 7.4(34). If the defendant does not attend a settlement conference (Rule 7(17)), trial conference (Rule 7.5(17)), or trial (Rules 9.1(26), 9.2(11), and 10(9)), the judge or justice of the peace may grant a payment order instead of the claimant having to apply for a default order.

A. Requesting 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 filed (Rule 17(10)).

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 file (Rule 6(3)). 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 interest (Rule 6(4)). If the claim is for anything other than a specific amount of debt, the registrar will schedule a hearing before a judge (Rule 6(5)). Once a hearing has been set, the defendant cannot file a Reply without a judge’s permission (Rule 6(8)). 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 date (Rule 6(6)). A defendant is not entitled to notice of the hearing date (Rule 6(7)).

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 granted (Rule 6(9)).

B. Setting Aside Default Orders and Reinstating Claims

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 order (Rules 16(6)(j) and 17(2)) and file a Reply (Rule 16(6)(d)). 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 containing (See Rule 17(2)(b); Miracle Feeds v D. & H. Enterprises Ltd. (1979), 10 BCLR 58 (Co. Ct.) [Miracle Feeds]):

• a reasonable explanation for not filing a Reply (or failing to attend a mediation session, trial conference, or trial);
• a reasonable explanation of any delay in filing the application;
• the facts supporting the claim, counterclaim, or defence; and
• why permitting the order would be in the interests of justice.

The party in default must show that:

• the failure to file a Reply (or failure to attend a mediation session) was not wilful, deliberate or blameworthy;
• the application to set aside the default order was made as soon as reasonably possible after obtaining knowledge of the default order158;
• if there has been a delay in applying to set aside the default order, an explanation for the delay; and
• if the party in default is the defendant, there is a defence that is not bound to fail.

(See Miracle Feeds; Hubbard v Acheson, 2008 BCSC 970 (CanLII); McEvoy v McEachnie, 2008 BCSC 1273 (CanLII); Anderson v T.D. Bank, 1986 CanLII 897 (BC CA); Doyle v Lunny Design and Production Group Inc., 2009 BCSC 925 (CanLII); and Innovest Development Corp. (Receiver of) v Lim, 1999 CanLII 5356 (BCSC))

Where the party in default is a defendant who has not filed a Reply, the defendant should also bring copies of the Reply and be prepared to file them immediately if the judge grants permission.

If the default order is cancelled, the party who obtained it may ask the court to award reasonable expenses that relate to the cancellation. These expenses may include the cost of filing the application for default order, significant travelling expenses, and lost wages that were incurred only as a result of the cancellation.