Default Judgment in BC: What Happens If Someone Does Not Respond, and Setting It Aside

Lawsuits have deadlines, and the first one falls on the defendant. If no response is filed in time, the person who sued can usually ask the court for judgment without ever proving the case at a trial.

That is good news if you are the claimant facing a silent defendant, and urgent news if you are the defendant who missed the date. Both sides have technical rules to follow, and they differ between BC Supreme Court and Provincial Court small claims.

Two courts, two sets of rules

In BC Supreme Court, the process is called default judgment and is governed by Rule 3-8 of the Supreme Court Civil Rules. In Provincial Court small claims, it is a default order under Rule 6 of the Small Claims Rules. Many smaller disputes start at the Civil Resolution Tribunal instead, which has its own process; our article on which forum your BC dispute belongs in explains the split.

When a defendant does not respond in BC Supreme Court

Under Rule 3-3(3), a defendant served in Canada has 21 days after service to file and serve a response to civil claim. The period is 35 days if served in the United States and 49 days if served anywhere else. Our article on being served with a notice of civil claim covers that deadline from the defendant's side.

Once the period has run out with no response filed and served, Rule 3-8(1) allows the plaintiff to proceed. Rule 3-8(2) requires the plaintiff to file:

• proof of service of the notice of civil claim on that defendant;
• proof that the defendant has failed to serve a response;
• a requisition endorsed by a registrar noting that no response has been filed; and
• a draft default judgment order in Form 8.

What the plaintiff can get depends on the claim. For money in a specified or ascertainable amount, such as an unpaid invoice, judgment can be for the amount claimed plus the interest the plaintiff is entitled to and costs (Rule 3-8(3)). For damages that are not a fixed figure, the plaintiff gets judgment for damages to be assessed (Rule 3-8(5)), and the amount is decided later, at a trial of the assessment or summarily on affidavit evidence (Rule 3-8(12) and (13)). Other kinds of claims need an application to the court supported by an affidavit verifying the claim (Rule 3-8(9) and (10)). If the registrar is not certain which category applies, the registrar may refuse and the plaintiff can apply to a judge or associate judge.

Default orders in small claims

In small claims, Rule 3(4) of the Small Claims Rules gives a defendant served in BC 14 days to file a reply, or 30 days if served outside BC, and in any case before the registrar has made a default order or set a hearing date. If the defendant does not reply in time, the claimant may ask the registrar for a default order by filing Form 5 with the certificate of service and paying the fee (Rule 6(1) and (3)).

If the claim is for a debt, Rule 6(4) says the registrar must make a default order for the amount claimed, plus allowable expenses and any interest the claimant is entitled to. If it is not a debt, the registrar sets a hearing before a judge to decide the amount or the terms of the order (Rule 6(5) and (9)). A defendant who has not replied is not entitled to notice of that hearing (Rule 6(7)), and once the hearing date is set cannot file a reply without a judge's permission (Rule 6(8)).

A judgment or default order can then be enforced like any other. See our article on enforcing a judgment in BC.

Setting aside a default judgment in Supreme Court

Rule 3-8(11) is short: the court may set aside or vary any judgment granted under the rule. The rule does not list a test, so the application is decided on the evidence. In practice, a defendant should expect to explain, by affidavit, why no response was filed, show that the application was brought promptly after learning of the judgment, and set out a defence that deserves to be heard. Because the rule also allows the court to vary a judgment, the result is not always all or nothing.

Delay works against the defendant. While the judgment stands, the plaintiff can take enforcement steps, and every week that passes makes an explanation harder to accept.

Cancelling a default order in small claims

Rule 17(2) of the Small Claims Rules allows a judge to cancel a default order made because a defendant failed to file a reply. The defendant applies under Rule 16(7) and must attach an affidavit setting out the reason the reply was not filed, the reason for any delay in bringing the application, and the facts that support the defence. Under Rule 17(4), the judge may attach conditions to any order.

Getting it right the first time

For claimants, a default judgment is only as solid as the steps behind it. Service must be proper and properly proven, the amount claimed must be supportable, and interest should be claimed only where there is a right to it. A judgment obtained on defective service or an overstated claim invites a set-aside application.

For defendants, the safest time to act is before the deadline. If it has already passed but no default has been entered, filing a response or reply at once may still be possible. If judgment has been entered, gather your documents and get advice quickly, because the affidavit you file will carry the application.

Missed a deadline, or facing a silent defendant? Get advice on the next step

Our litigation lawyers can take the steps to obtain default judgment or a default order, assess the amount, or prepare an application to set one aside, in BC Supreme Court or Provincial Court.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.