Pleadings in the Ontario Superior Court of Justice must be exchanged within time limits. Procrastination must be replaced with an eye to the prescribed time to deliver, for example a defence to a claim. Sometimes, a defendant may be in default in not defending in time and be noted in default by the Plaintiff. A process is then available to potentially reverse this default so a defence can be delivered allowing the action to proceed. But the setting aside of the noting of default is not a rubber stamping process. The court will consider a number of factors. Neither does it have to be a Mount Everest challenge if the right factors are in play.
When exercising its discretion to set aside a noting of default, a court assesses “the context and factual situation” of the case. It particularly considers such factors as the behaviour of the plaintiff and the defendant; the length of the defendant’s delay; the reasons for the delay; and the complexity and value of the claim. These factors are not exhaustive. Some cases have also considered whether setting aside the noting of default would prejudice a party relying on it. Only in extreme circumstances, however, should the court require a defendant who has been noted in default to demonstrate an arguable defence on the merits.
A noting of default is a serious matter which should be acted upon with dispatch so that you may have an opportunity to fully argue your case before any judgment is pronounced.
William Poulos, Barrister