In three sentences: When a defendant misses the deadline to defend, the plaintiff can have them "noted in default," and the Rules then allow the plaintiff to seek a default judgment. Ontario's Rules let a court undo either the noting of default or the default judgment, on terms it considers fair, and the Small Claims Court rules add a specific two-part test. Because enforcement can start once there is a judgment, timing is critical and should be confirmed with a lawyer immediately.
If you are searching for how a default judgment in Ontario can be set aside, a court case has probably moved forward after a deadline passed. Both the Rules of Civil Procedure and the Small Claims Court rules contain a way to ask the court to undo that.
This guide explains how the process works in general terms. For the earlier stage, see our guide on being served with a statement of claim.
What does it mean to be "noted in default"?
A defendant is "noted in default" when the court office formally records that no defence was delivered in time. In the Superior Court, when no statement of defence arrives within the time the Rules set, the plaintiff may file proof of service and ask the registrar to record the default (Rule 19.01(1)). A defence that has been struck out, without leave to file another, can lead to the same result (Rule 19.01(2)). In the Small Claims Court, the clerk may record the default once the plaintiff files a request and proof that the claim was served within the court's territorial division, subject to the exceptions in that rule (Rule 11.01(1)).
One protection is built in. A party under disability can be noted in default only with a judge's leave (Rule 19.01(4); Rule 11.01(2) in Small Claims Court).
Noting in default is not a judgment. It is the step that makes one available.
What are the consequences of being noted in default?
Under Rule 19.02(1), a defendant who is noted in default:
- is treated as having accepted every factual allegation in the statement of claim; and
- generally cannot deliver a defence or take other steps in the action without the court's leave or the plaintiff's consent, with one exception: a motion aimed at undoing the default or any judgment that followed from it.
The defendant also generally stops receiving documents in the case. Under Rule 19.02(3), the plaintiff need not give that defendant notice of later steps, subject to listed exceptions. The Small Claims Court rules take a similar approach (Rule 11.05).
What is a default judgment?
A default judgment is a judgment entered against a defendant after the default has been recorded. How it is obtained depends on the type of claim.
| Type of claim | How the plaintiff proceeds |
|---|---|
| Debt or fixed sum of money, and certain claims for possession of land or personal property or for a mortgage (Superior Court) | The registrar may sign default judgment on a requisition (Rule 19.04(1), (2)); the registrar may decline to sign if uncertain (Rule 19.04(3)) |
| Other claims, including unliquidated damages (Superior Court) | The plaintiff may move before a judge for judgment on the claim, with affidavit evidence if the claim is for unliquidated damages (Rule 19.05(1), (2)) |
| Debt or liquidated demand (Small Claims Court) | The clerk may sign default judgment (Rule 11.02(1)) |
| Other parts of the claim (Small Claims Court) | Where all defendants are noted in default, a motion in writing for an assessment of damages or a request for an assessment hearing (Rule 11.03(1), (2)) |
Two safeguards are in the text. In the Superior Court, the plaintiff is not entitled to judgment just because the facts are deemed admitted; the facts have to entitle the plaintiff to it (Rule 19.06). In the Small Claims Court, an assessment relieves the plaintiff of proving liability against the defaulting defendant, but the amount still has to be proved (Rule 11.03(5)).
A registrar-signed default judgment also includes costs fixed under Tariff A, unless the judgment directs a reference or the plaintiff asks for costs to be assessed (Rule 19.04(6)). A default judgment on one claim does not stop the plaintiff from pursuing other relief against the same defendant (Rule 19.07).
Can a noting of default be set aside?
Yes, in the sense that the Rules allow it. Rule 19.03(1) gives the court power to cancel the noting of default, and the court sets the conditions it considers fair. If the plaintiff consents to a defence being delivered, the noting is treated as cancelled (Rule 19.03(2)).
A different route exists earlier in the process: until the default has actually been recorded, a defence can still be delivered (Rule 19.01(5)).
How can a default judgment be set aside in Ontario?
In the Superior Court, the Rules distinguish two situations:
- A judgment signed by the registrar, or granted by the court on a motion under Rule 19.04. The court may cancel or change it, on terms it sets (Rule 19.08(1)).
- A judgment obtained on a motion for judgment on the claim, or after trial. A judge has the same power to cancel or change it (Rule 19.08(2)).
When a judgment is cancelled under either route, the court may cancel the noting of default as well (Rule 19.08(3)).
The text of Rule 19.08 does not list factors. What a court considers, and how much weight each point carries, depends on the facts and the court's discretion. A lawyer can advise how courts have approached it.
The Small Claims Court rules are more specific. Rule 11.06 lets the court cancel the noting in default or the default judgment, along with enforcement steps already taken, on fair terms. The party who brings the motion has to satisfy the court of two things:
- there is a defence with real merit, and a reasonable explanation for why the default happened; and
- the motion was brought promptly, given all the circumstances.
A motion in Small Claims Court is made on a notice of motion and supporting affidavit (Rule 15.01(1)). A motion made after judgment must be served on all parties, including those noted in default (Rule 15.01(6)).
Does timing matter?
In the Small Claims Court, yes, expressly: the second part of the Rule 11.06(b) test is about how quickly the motion was brought. The Superior Court rules on setting aside state no fixed number of days. The court can extend time limits on terms that are just (Rule 3.02(1) of the Rules of Civil Procedure), which is a matter for the judge. Timing depends on the facts and should be confirmed with a lawyer immediately.
What happens with enforcement after a default judgment?
For a judgment for the payment of money, the Rules list enforcement methods. In the Superior Court, they include a writ of seizure and sale, garnishment of debts owed to the debtor, a writ of sequestration and the appointment of a receiver (Rule 60.02(1)). In the Small Claims Court, enforcement includes writs of seizure and sale (for personal property and for land) and garnishment (Rule 20.03).
The Small Claims rule on setting aside also reaches enforcement steps already taken (Rule 11.06), and the court can pause enforcement for a period and on conditions it considers fair (Rule 20.02(1)(a)). Whether that is appropriate depends on the case. For the enforcement side in more detail, see our guide on what happens when a judgment is made against you in Ontario.
When it is worth talking to a lawyer
A lawyer's advice is typically useful when:
- you have learned you were noted in default or that a default judgment exists;
- a deadline to defend is close or recently passed;
- you were not aware of the lawsuit;
- a garnishment notice, writ or enforcement letter has arrived;
- you believe you have a defence, or the amount claimed is wrong;
- a large amount is involved.
What to gather
A lawyer will usually ask for:
- the statement of claim or plaintiff's claim and any proof of service you received;
- the noting of default, default judgment or enforcement documents;
- an explanation, with dates, of why no defence was delivered;
- documents supporting your side of the dispute (contracts, invoices, messages);
- any insurance policy that might respond to the claim.
Frequently asked questions
What does it mean to be noted in default in Ontario?
It means the court office has recorded that no defence arrived in time. The defendant is then treated as accepting the factual allegations in the claim and can take few steps in the case (Rule 19.02(1)).
Can a default judgment be set aside in Ontario?
The Superior Court has power to cancel or change one, on conditions it sets (Rule 19.08(1), (2)). That depends on the facts and the court's discretion.
What is the test to set aside a default judgment in Small Claims Court?
Rule 11.06 looks at whether the party has a defence with merit and a reasonable explanation for the default, and whether the motion was brought promptly.
Can I file a defence after being noted in default?
Generally only with the court's leave or the plaintiff's consent. The Rules carve out a motion to undo the default or the judgment (Rule 19.02(1)(b)).
Does a default judgment mean I automatically owe the full amount claimed?
Not necessarily. In the Superior Court, admissions that arise from the default do not by themselves entitle a plaintiff to judgment (Rule 19.06). In Small Claims Court, the plaintiff still has to prove the amount on an assessment (Rule 11.03(5)).
Can the plaintiff enforce a default judgment right away?
Enforcement methods such as garnishment and writs of seizure and sale are available for money judgments (Rule 60.02(1); Rule 20.03 in Small Claims Court). Exact timing depends on the steps taken and should be confirmed with a lawyer.
Questions a lawyer would typically look at
- Whether the defendant was noted in default or a judgment was signed, and on what date, in which court
- Why no defence was delivered and whether there is a defence on the merits
- Whether any enforcement step (garnishment, writ) has already been taken
Good to know: Gather every court document received and write down the dates, in order, of when the papers arrived and what was done afterwards.
Sources named in this article
- Rules of Civil Procedure
Statutes, regulations and decisions change. Read the current official text before relying on anything here. This is not a complete list of every source behind the article.
Read the primary sources: Ontario e-Laws · CanLII
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