Setting Aside a Default Judgment in Ontario

A Practical Guide for Defendants, Businesses, and Legal Professionals

Compliant with Ontario’s Rules of Civil Procedure and Courts of Justice Act | Updated for 2025

Introduction: When Silence Becomes a Judgment

It happens more often than many realize — someone gets sued, misses the filing deadline, and later discovers that the court has entered a default judgment against them.

Whether it’s because you never received the claim, misunderstood the process, or simply ran out of time, Ontario law provides a structured way to set aside (cancel) a default judgment and reopen the case.

This guide explains how default judgments work, what the court considers when deciding to set them aside, and what steps you must take immediately to protect your rights.

What Is a Default Judgment?

A default judgment occurs when a defendant fails to respond to a claim within the required time — typically 20 days under Rule 18.01 of the Rules of Civil Procedure, or 20 days in Small Claims Court under Rule 9.01 of the Small Claims Court Rules.

The plaintiff can then ask the court to:

• Enter judgment for a specific amount of money,
• Grant the relief sought in the claim, and
• Begin enforcement proceedings (e.g., garnishment or writs of seizure).

At that point, the defendant becomes a judgment debtor, even without having presented their side of the story.

Key Rule: Rule 19.02–19.06 of the Rules of Civil Procedure and Rule 11.01 of the Small Claims Rules govern default judgment procedures in Ontario.

Common Reasons Default Judgments Occur

• The claim was never received or served improperly;
• The defendant believed settlement discussions paused the need to respond;
• The claim was overlooked or delayed internally (common with corporations);
• The defendant filed incorrectly or misunderstood the 20-day rule;
• Genuine mistake, illness, or procedural confusion.

Whatever the cause, the sooner you act after discovering the judgment, the stronger your position will be.

Step 1: Confirm the Judgment Details

First, verify the court file:

• Obtain the Statement of Claim, Affidavit of Service, and Judgment Order from the court registry.
• Confirm when the claim was served and how it was delivered (personal service, mail, or substituted service).

If service was defective, you may have automatic grounds to have the judgment set aside (Rule 19.08(1)(a)).

Step 2: File a Motion to Set Aside the Default Judgment

1. Governing Rule

• Rule 19.08 (Superior Court of Justice) — permits the defendant to bring a motion “to set aside or vary” a default judgment.
• Rule 11.06 (Small Claims Court) — similar remedy for Small Claims judgments.

1. Timing

Act promptly.
There is no fixed deadline under Rule 19.08, but delay weakens credibility. Courts routinely deny motions filed after long or unexplained delays.

1. Required Documents

Your motion record should include:

1. Notice of Motion (Form 37A);
2. Affidavit explaining:
   • why you didn’t respond on time;
   • when and how you learned of the judgment;
   • your proposed defence or response;
3. Draft Statement of Defence;
4. Supporting evidence (emails, letters, medical notes, etc.);
5. Order sought — to set aside the judgment and permit filing of a defence.

Step 3: Legal Test — What the Court Considers

Ontario courts apply a three-part test when deciding whether to set aside a default judgment:

1. Was there a reasonable explanation for the default?
2. Does the defendant have a bona fide (genuine) defence on the merits?
3. Did the defendant move promptly after learning of the judgment?

Leading Case:
Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 — the Ontario Court of Appeal confirmed these criteria and emphasized that the “overriding objective” is to ensure justice on the merits.

Additional Guidance:
Intact Insurance Co. v. Kisel, 2022 ONCA 236 — reaffirmed that the rules should not be applied mechanically; the focus is whether the defendant deserves an opportunity to be heard.

1. Reasonable Explanation

Courts are sympathetic to genuine mistakes, confusion, or procedural errors — but not to indifference or neglect.

Examples of valid reasons:

• Miscommunication with insurer or lawyer;
• Improper service;
• Serious illness or travel preventing timely response.

1. Meritorious Defence

You must show a plausible legal argument or evidence that could succeed if heard.
It doesn’t have to be proven — just credible and arguable.

1. Promptness

Delays beyond a few weeks or months require a compelling explanation. In Ur-Rahman v. Mahatoo, 2016 ONCA 555, the Ontario Court of Appeal upheld a motion judge’s refusal to set aside a default judgment where the defendant waited several months before acting and offered no credible reason for the delay.

The Court reaffirmed that while discretion should be exercised generously, unexplained delay undermines the integrity of the litigation process and can justify leaving the judgment in place.

Step 4: File and Serve the Motion

• Serve the motion materials on the plaintiff’s lawyer (or the plaintiff directly if unrepresented).
• File with the court registrar (Small Claims or Superior Court).
• Obtain a hearing date and attend prepared to explain your circumstances and your defence.

Step 5: Possible Outcomes

If successful, the court may also order the plaintiff to return seized funds or property, depending on what enforcement actions have occurred.

Step 6: Enforcement During the Motion

Unless you obtain a temporary stay of enforcement under Rule 63.01, the plaintiff can continue to garnish wages, seize property, or register writs even while your motion is pending.

To avoid this, your lawyer can bring a motion for a stay of enforcement alongside your motion to set aside.

Step 7: Costs and Conditions

Courts often order the defendant to pay partial costs or comply with specific terms (such as posting security or paying part of the debt into court) before setting aside a default judgment.

These conditions protect the plaintiff from delay and ensure good faith.

Practical Tips for Defendants

• Act immediately after learning of the judgment. Every day counts.
• Do not contact the plaintiff directly — all communication should go through counsel.
• Prepare a strong affidavit explaining your situation and your defence.
• Gather proof of improper service or procedural irregularities.
• Be realistic: if your defence is weak or payment inevitable, consider negotiating a consent variation or repayment plan instead of a motion.

Conclusion: Default Judgment Isn’t the End — But Time Is Your Enemy

A default judgment in Ontario is serious — it can lead to wage garnishments, property liens, and damaged credit. But it can also be undone if you act quickly and present a credible explanation and defence.

At ME Law Professional Corporation, we help individuals and businesses set aside default judgments, obtain stays of enforcement, and re-open cases so they can be decided on their merits.

Our litigation team knows what judges look for — and how to present your case effectively and promptly.

⚖️ Disclaimer

This publication is for general informational purposes only and does not constitute legal advice. You should not rely on the statements herein as a substitute for personalized legal consultation. Every case is unique, and outcomes depend on the facts, applicable law, and judicial discretion.

The information reflects Ontario’s civil procedure as of 2025 and may change through new rules or appellate decisions.

If you have discovered that a default judgment has been entered against you in Ontario, contact the civil litigation lawyers at ME Law Professional Corporation in Toronto immediately. We can assess your situation, prepare the motion record, and help you move swiftly to restore your legal rights.

📞 Call (416) 923-0003 or contact us online for a confidential consultation.