Setting aside a noting in default in the Ontario Superior Court of Justice

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

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