A default judgment was signed against you in Ontario: can it be set aside?

Often, yes, if you act quickly. In Small Claims Court, the court can set aside a noting in default, a default judgment and any enforcement step if you have a meritorious defence and a reasonable explanation for the default, and you bring the motion as soon as reasonably possible (Rules of the Small Claims Court, r. 11.06). In the Superior Court, a default judgment can be set aside or varied "on such terms as are just" (Rules of Civil Procedure, r. 19.08).

Many people first learn about a lawsuit when their bank freezes an account or their employer receives a garnishment notice. The claim was served at an old address, left with someone who never passed it on, or arrived while they were away. This page explains how default happens, how to undo it, and what to do in the first days. For the civil process in general, see our civil litigation guide.

How does a default judgment happen?

A defendant who does not file a defence in time can be "noted in default". In Small Claims Court, the clerk notes default when the plaintiff files a request and proof of service (r. 11.01). The clerk can then sign default judgment for a debt or other fixed sum, with interest if claimed (r. 11.02). For anything else, such as damages that must be assessed, the plaintiff asks for an assessment, either by a motion in writing or at an assessment hearing, and must prove the amount but not liability (r. 11.03(2), (5)).

In the Superior Court, the registrar notes default on proof of service (Civil Procedure r. 19.01(1)) and can sign judgment for a debt or liquidated demand, possession of land or personal property, or certain mortgage remedies (r. 19.04). A defendant noted in default in the Superior Court is deemed to admit every allegation of fact in the statement of claim (r. 19.02(1)(a)).

In both courts, a defendant in default cannot file a defence or take any other step without consent or leave, apart from a motion to set the default aside, and is not entitled to notice of most later steps (Small Claims r. 11.05; Civil Procedure r. 19.02). In Small Claims Court, the clerk serves the default judgment on all parties named in the claim by mail or email (r. 8.01(4)), which is often how people find out. Our page on how many days you have to respond to a lawsuit explains the deadlines that lead to default.

How do you set it aside, step by step?

In Small Claims Court

1. Get the file. Find the court file number on the default judgment or garnishment notice, and get copies of the claim and the affidavit of service.
2. Ask for consent. The Ministry suggests first asking the plaintiff whether they will consent to your filing a Defence. If they agree, all parties sign Form 11.2A.
3. Otherwise, bring a motion. Get a hearing date from the clerk, then serve the Notice of Motion and Supporting Affidavit (Form 15A) on every party at least seven days before the hearing and file it with proof of service at least three days before (r. 15.01(2), (3)). A motion after judgment must be served on all parties, including any in default (r. 15.01(6)). A filing fee applies, and a fee waiver may be available.
4. Prove the three things. Your affidavit should show your defence on the merits, why you did not respond in time, and that you acted as soon as reasonably possible after learning of the default (r. 11.06). Attach your proposed Defence.
5. Attend the motion. In Small Claims Court, motions are heard remotely by default unless the court decides otherwise.

In the Superior Court

The motion is brought under rule 19.03 for the noting of default and rule 19.08 for the judgment. A judgment signed by the registrar or granted on a motion under rule 19.04 can be set aside by the court on just terms; one obtained on a motion for judgment under rule 19.05 or after trial is set aside by a judge (r. 19.08(1), (2)). When setting aside the judgment, the court may also set aside the noting of default (r. 19.08(3)). In a Simplified Procedure action, the registrar must grant a motion to set aside a noting of default or a default judgment if all parties consent or no responding material is filed and no party affected is under disability (r. 76.05(4), (5)). Toronto Superior Court civil matters are heard at 393 University Avenue.

What does the court look at?

In Small Claims Court, rule 11.06 sets the test in plain terms. The court must be satisfied that:

• you have a meritorious defence: not a guaranteed win, but a real answer to the claim, explained with documents where possible;
• you have a reasonable explanation for the default: for example, the claim went to an address where you no longer lived, or you were away and did not receive it; and
• the motion is made as soon as is reasonably possible in all the circumstances.

The court can attach terms, such as costs or a deadline to file the Defence. In the Superior Court, rule 19.08 does not list factors; the court decides what terms are just on the facts of the case.

What happens to garnishment while the motion is pending?

This is often the most urgent question. In Small Claims Court, the clerk does not distribute money paid in under a notice of garnishment while a motion under rule 11.06 has been filed (r. 20.08(20)(b)). That is one reason to file promptly: it keeps the money in court while the motion is decided. If the default is set aside, the court can also set aside "any step that has been taken to enforce the judgment" (r. 11.06). Separately, the court has power to stay enforcement on just terms (r. 20.02(1)(a)). Our page on how much of your wages can be garnished explains the limits that apply in the meantime.

What changes the answer?

• Delay after you found out. The Small Claims test asks whether you moved as soon as reasonably possible. Weeks of inaction after a garnishment notice are hard to explain.
• How you were served. Alternative service at a residence or by registered mail has specific rules (Small Claims r. 8.03). If service did not follow them, that may support your explanation.
• Whether enforcement is complete. A clerk's consent order can set aside only enforcement steps not yet completed (r. 11.2.01(1)1iii).
• A person under disability. A minor or mentally incapable person cannot be noted in default without leave (Small Claims r. 11.01(2); Civil Procedure r. 19.01(4)).
• The amount. Claims over $50,000 belong in the Superior Court, and the Superior Court's rules apply there. See the $50,000 Small Claims limit.

For example: a judgment discovered through a bank freeze

This is a hypothetical, not a real client or a result. A dental hygienist in North York spends three months abroad caring for a parent. While she is away, a former landlord's company issues a Small Claims claim for $9,000 and serves it at her old apartment. Default judgment is signed. She learns of it when her bank tells her a notice of garnishment has been served.

Within days, she gets the court file from the Toronto Small Claims Court at 47 Sheppard Avenue East, gathers her lease, her move-out inspection and her travel records, and asks the company to consent. It refuses. She files a motion under rule 11.06 with an affidavit explaining the old address, her time abroad and her defence that the damage claimed was pre-existing, attaching her proposed Defence. Because the motion is filed, the clerk holds the garnished money. Her travel records include documents in Farsi, so she files certified English translations, as the Courts of Justice Act requires for documents not in English or French (s. 125(2)(b)). The court then decides whether the test is met and on what terms.

What mistakes do people make?

1. Calling the plaintiff and waiting. Ask for consent, but prepare the motion at the same time; delay counts against you.
2. Filing a Defence without dealing with the default. A defendant noted in default cannot file one without consent or leave (r. 11.05(1)).
3. An affidavit that only explains the delay. You must also show a defence on the merits.
4. Forgetting the defendants in default. A motion after judgment must be served on all parties (r. 15.01(6)).
5. Ignoring the 7-day and 3-day service and filing deadlines for the motion (r. 15.01(3)).
6. Assuming a payment plan is the only option. If you have a real defence, setting aside may be possible; if you do not, a payment arrangement or a consolidation order may still help.

What can you do this week?

1. Get the court file number and copies of the claim, the affidavit of service and the default judgment.
2. Write down when and how you learned about the case, with dates.
3. Collect proof of where you lived, or where you were, when the claim was served.
4. Gather the documents that support your defence, with certified translations if any are not in English or French.
5. Ask the plaintiff, in writing, whether they will consent to setting aside the default.
6. If they will not, prepare and file the motion promptly; a fee waiver may be available.
7. Tell your bank or employer that a motion has been filed, and keep proof of filing.

Frequently asked questions

Is there a fixed deadline to bring the motion?

Small Claims rule 11.06 does not set a number of days; it requires that the motion be made as soon as reasonably possible in all the circumstances. Any delay after you learned of the judgment should be explained in your affidavit.

Can I get back money already garnished?

If the court sets aside the judgment, it can also set aside enforcement steps (r. 11.06). Whether money already paid out is returned depends on the order made; money still held in court because of your motion is easier to deal with (r. 20.08(20)).

Do I have to prove I will win?

No. Rule 11.06 asks whether you have a meritorious defence. It does not require you to prove at the motion that you will win; if the default is set aside, the merits are decided later in the case.

What if the plaintiff got judgment for more than they were owed?

For claims that are not a fixed debt, the plaintiff had to prove the amount at an assessment (r. 11.03(5)). If the amount is wrong, that can form part of your defence on the motion.

Will the case go back to the start?

If the default is set aside, you file your Defence on the terms the court orders, and the case continues, usually to a settlement conference (r. 13.01).

Can I do this in Farsi?

Court documents must be in English or French or come with a certified translation (Courts of Justice Act s. 125). Ontario provides interpretation in any language in Small Claims Court if you qualify for a fee waiver, or if the court orders it. Gambriani Law PC can meet with you in Farsi.

Getting help

Setting aside a default is about speed and a clear affidavit. Our Small Claims Court guide covers the wider process, and our debt recovery page explains how creditors enforce judgments, which helps you see what is coming next. Gambriani Law PC handles civil disputes in English and Farsi from Suite 1901, 5000 Yonge Street in North York. If the dispute is about a contract, our page on contract disputes covers common defences.

This page is general information about Ontario law, not legal advice about your situation.