Class 6 Flashcards
Whose responsibility is it to get the defendant noted in default if they miss their deadline to respond?
The plaintiffs
What is the process for putting a defender in default?
First, go to the registrar after the defendant’s time has expired. They will note the date your statement of claim, and note the defendant in default.
What is the effect of having the defendant be noted in default?
It shuts the door on them. They will receive no further communications from the court and cannot file anything without the consent of the plaintiff and a court order
Is noting a defendntend in default all you need for this judgment?
No
Who actually delivers the default judgment.
It depends. If the case is for sum certain (liquidated) damages, then the registrar MAY sign off on it, and then it’s done. if its for sum uncertain damages (unliquidated) then the judgment must come from a judge
Can a defendant file their statement of defence if the time limit has run out?
Yes, if the plaintiff has not yet noted them in default
Rule 19.08 - setting aside default udmgent. What is the test for setting aside default judgment?
- Whether the mtion was brought proptly;
- whether there is a plausible excise or esplactaiotn in compliance to the rules
- whether the facts establish at least an arguable defence – a meritorious defence. Doesn’t have to be a winner, onlt has to be plausible. Does it have an air of reality?
- the competing potential prejudice to the parties of granting or refusing to set aside the default judgment. How much time has passed since?
- the effect of any order on the overall integrity of the admisistration of justice
Rule 24 - what is a dismissal for delay?
The opposite of a default judgment. The defendant can have the case thrown out if the plaintiff delays making their case
Are limitation defences automatic?
No, the defendant must plead them
What is the current limitations period in Ontario?
2 years
From when does the limitation period run?
From when the plaintiff knew or reasonably ought to have known that the claim existed
When is a claim reasonably discovered (there is a list)
a claim is discovered on the erlier of:
1. The day the person first knew
2. That the loss had occurred
3. That the loss was caused by or contributed to by an act or omission
4. That the act or omission was that of the person against whom the claim is made and
a. That the injury would be appropriate to seek a remedy for and
b. The day on which a reasonable person with the abilities and in the circumstnaces of the person with the claim first ought to have known of the matters reffered to
When is a limitation period tolled?
If the defendant is a minor or if the defendant is incapable and they don’t have a litigation guardian
Under what condition will a limitation period be refreshed?
Limited to loan situations. If a debtor delivers a written and signed aknowlagemnt that they still owe the plaintiff money, then the limitation period refreshes at 2 years
What is the Ultimate Limitation Period, and what is it in Ontario?
15 years. It runs from the date of the incident that created the cause of action. After that point passes, no action can be taken.
