Where no Defence Delivered
(1) Where a defendant fails to deliver a statement of defence within the prescribed time, the plaintiff may, on filing proof of service of the statement of claim, or of deemed service under subrule 16.01 (2), require the registrar to note the defendant in default. R.R.O. 1990, Reg. 194, r. 19.01 (1); O. Reg. 113/01, s. 3.
Noting Default Electronically
(1.1) Where a plaintiff files electronically a requisition for the noting in default of a defendant and the registrar notes the defendant in default, the registrar shall send the plaintiff confirmation of the noting in default. O. Reg. 288/99, s. 12.
Where Defence Struck Out
(2) Where the statement of defence of a defendant has been struck out,
(a) without leave to deliver another; or
(b) with leave to deliver another, and the defendant has failed to deliver another within the time allowed,
the plaintiff may, on filing a copy of the order striking out the statement of defence, require the registrar to note the defendant in default. R.R.O. 1990, Reg. 194, r. 19.01 (2).
Noting of Default by Co-defendant
(3) Where a plaintiff has failed to require the registrar to note a defendant in default, the court on motion of any other defendant who has delivered a statement of defence, on notice to the plaintiff, may order the registrar to note the other defendant in default. R.R.O. 1990, Reg. 194, r. 19.01 (3)
Party under Disability
(4) If a party to an action is under disability, the party may be noted in default only with leave of a judge obtained on motion under rule 7.07. O. Reg. 19/03, s. 5.
Late Delivery of Defence
(5) A defendant may deliver a statement of defence at any time before being noted in default under this rule. R.R.O. 1990, Reg. 194, r. 19.01 (5).
(1) A defendant who has been noted in default,
(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and
(b) shall not deliver a statement of defence or take any other step in the action, other than a motion to set aside the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent of the plaintiff. R.R.O. 1990, Reg. 194, r. 19.02 (1).
(2) Despite any other rule, where a defendant has been noted in default, any step in the action that requires the consent of a defendant may be taken without the consent of the defendant in default. R.R.O. 1990, Reg. 194, r. 19.02 (2).
(3) Despite any other rule, a defendant who has been noted in default is not entitled to notice of any step in the action and need not be served with any document in the action, except where the court orders otherwise or where a party requires the personal attendance of the defendant, and except as provided in,
(a) subrule 26.04 (3) (amended pleading);
(b) subrule 27.04 (3) (counterclaim);
(c) subrule 28.04 (2) (crossclaim);
(d) subrule 29.11 (2) (fourth or subsequent party claim);
(e) subrule 54.08 (1) (motion for confirmation of report on reference);
(f) subrule 54.09 (1) (report on reference);
(g) subrule 54.09 (3) (motion to oppose confirmation of report on reference);
(h) subrule 55.02 (2) (notice of hearing for directions on reference);
(i) clause 64.03 (8) (a) (notice of taking of account in foreclosure action);
(j) subrule 64.03 (24) (notice of reference in action converted from foreclosure to sale);
(k) subrule 64.04 (7) (notice of taking of account in sale action);
(l) subrule 64.06 (8) (notice of reference in mortgage action);
(m) subrule 64.06 (17) (report on reference in mortgage action); and
(n) subrule 64.06 (21) (notice of change of account);
(o) Revoked: O. Reg. 131/04, s. 10 (2).
(p) Revoked: O. Reg. 131/04, s. 10 (2).
R.R.O. 1990, Reg. 194, r. 19.02 (3); O. Reg. 69/95, s. 19; O. Reg. 131/04, s. 10.
(1) The noting of default may be set aside by the court on such terms as are just. R.R.O. 1990, Reg. 194, r. 19.03 (1).
(2) Where a defendant delivers a statement of defence with the consent of the plaintiff under clause 19.02 (1) (b), the noting of default against the defendant shall be deemed to have been set aside. R.R.O. 1990, Reg. 194, r. 19.03 (2).
Where Available
(1) Where a defendant has been noted in default, the plaintiff may require the registrar to sign judgment against the defendant in respect of a claim for,
(a) a debt or liquidated demand in money, including interest if claimed in the statement of claim (Form 19A);
(b) the recovery of possession of land (Form 19B);
(c) the recovery of possession of personal property (Form 19C); or
(d) foreclosure, sale or redemption of a mortgage (Forms 64B to 64D, 64G to 64K and 64M). R.R.O. 1990, Reg. 194, r. 19.04 (1).
(1.1) Revoked: O. Reg. 14/04, s. 13.
Requisition for Default Judgment
(2) Before the signing of default judgment, the plaintiff shall file with the registrar a requisition for default judgment (Form 19D),
(a) stating that the claim comes within the class of cases for which default judgment may properly be signed;
(b) stating whether there has been any partial payment of the claim and setting out the date and amount of any partial payment;
(c) where the plaintiff has claimed prejudgment interest in the statement of claim, setting out how the interest is calculated;
(d) where the plaintiff has claimed postjudgment interest in the statement of claim at a rate other than as provided in section 129 of the Courts of Justice Act, setting out the rate; and
(e) stating whether the plaintiff wishes costs to be fixed by the registrar or assessed. R.R.O. 1990, Reg. 194, r. 19.04 (2).
Registrar may Decline to Sign Default Judgment
(3) The registrar may decline to sign default judgment if uncertain,
(a) whether the claim comes within the class of cases for which default judgment may properly be signed; or
(b) of the amount or rate that is properly recoverable for prejudgment or postjudgment interest. O. Reg. 171/98, s. 4.
(3.1) If the registrar declines to sign default judgment, the plaintiff may,
(a) move before a judge for judgment under rule 19.05; or
(b) in the case of a claim referred to in subrule (1), make a motion to the court for default judgment. O. Reg. 171/98, s. 4.
Where Claim Partially Satisfied
(4) Where the claim has been partially satisfied, the default judgment shall be confined to the remainder of the claim. R.R.O. 1990, Reg. 194, r. 19.04 (4).
Postjudgment Interest
(5) Where the registrar signs default judgment and the plaintiff has claimed postjudgment interest in the statement of claim at a rate other than as provided in section 129 of the Courts of Justice Act, the default judgment shall provide for postjudgment interest at the rate claimed. R.R.O. 1990, Reg. 194, r. 19.04 (5).
Costs
(6) On signing a default judgment, the registrar shall fix the costs under Tariff A to which the plaintiff is entitled against the defendant in default and shall include the costs in the judgment unless,
(a) the judgment directs a reference; or
(b) the plaintiff states in the requisition that he or she wishes to have the costs assessed,
in which case the judgment shall include costs to be determined on the reference or on assessment. R.R.O. 1990, Reg. 194, r. 19.04 (6).
(1) Where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed. R.R.O. 1990, Reg. 194, r. 19.05 (1).
(2) A motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages. R.R.O. 1990, Reg. 194, r. 19.05 (2); O. Reg. 131/04, s. 11.
(3) On a motion for judgment under subrule (1), the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented. R.R.O. 1990, Reg. 194, r. 19.05 (3).
(4) Where an action proceeds to trial, a motion for judgment on the statement of claim against a defendant noted in default may be made at the trial. R.R.O. 1990, Reg. 194, r. 19.05 (4).
A plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment. R.R.O. 1990, Reg. 194, r. 19.06.
A judgment obtained against a defendant who has been noted in default does not prevent the plaintiff from proceeding against the same defendant for any other relief. R.R.O. 1990, Reg. 194, r. 19.07.
(1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just. R.R.O. 1990, Reg. 194, r. 19.08 (1).
(2) A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial may be set aside or varied by a judge on such terms as are just. R.R.O. 1990, Reg. 194, r. 19.08 (2).
(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under rule 19.03. R.R.O. 1990, Reg. 194, r. 19.08 (3).
Rules 19.01 to 19.08 apply, with necessary modifications, to counterclaims, crossclaims and third party claims, subject to rules 28.07 (default of defence to crossclaim) and 29.07 (default of defence to third party claim). R.R.O. 1990, Reg. 194, r. 19.09.