8.3 Motions, Ex Parte Relief & Default Proceedings

Bringing a Motion

A motion asks a judge to make an order before trial: to amend a claim, compel disclosure, or seek relief from a procedural default. Under Rule 15.01, a motion is made by filing a Notice of Motion (Form 15A) and a supporting affidavit (Form 15B). Critically, the moving party must obtain a hearing date from the clerk before serving the notice of motion — a paralegal cannot simply pick a convenient date and serve the other side.

Motion Timelines

A motion made after judgment has been signed must be served on all parties, including anyone previously noted in default (Rule 15.01(6)) — default status does not exempt a party from being told that a post-judgment motion affects them.

How Motions Are Heard

Rule 15.02 permits a motion to be heard in person, by telephone or video conference, in writing (available specifically for an assessment-of-damages motion against a defaulting defendant), or by any other method the judge determines fair and reasonable. Costs of a motion, exclusive of disbursements, are capped at $100 absent special circumstances (Rule 15.07). A party who abuses the motion process with numerous meritless motions can be barred from bringing further motions without leave of the court (Rule 15.04).

Motions Without Notice ('Ex Parte')

Rule 15.03 allows a motion to be made without notice where the nature or circumstances of the motion make notice unnecessary or not reasonably possible — for example, urgent relief that would be defeated if the other side had advance warning. A party who obtains such an order must serve it, together with the notice of motion and supporting affidavit, on every affected party within five days of the order being signed. Any party affected by an order made without notice may bring a motion to set aside or vary it within 30 days after being served with it.

Default Proceedings

If a defendant fails to file a Defence within the required time, and the plaintiff files proof that the claim was properly served within the territorial division, the clerk notes the defendant in default (Rule 11.01). A person under a legal disability cannot be noted in default without leave of the court, and if all defendants were served outside the court's territorial division, the clerk withholds noting in default until an Affidavit for Jurisdiction (Form 11A) proves the action was properly brought there.

Consequences of Being Noted in Default

Once noted in default, a defendant cannot file a defence or take any other step in the proceeding, except moving to set aside the default, without leave of the court or the plaintiff's consent (Rule 11.05(1)). Steps in the action can proceed without that defendant's consent, and the defaulting defendant is not entitled to notice of most steps, with narrow exceptions: service of the default judgment itself, an amendment to the claim, a post-judgment motion, or enforcement proceedings against a debtor.

Getting Judgment After Default

On a motion or at an assessment hearing against a defaulting defendant, the plaintiff is not required to prove liability — the default already establishes that — but must still prove the amount of the claim with evidence. If a judge finds the plaintiff's affidavit inadequate or unsatisfactory, the judge can order a further affidavit or a full assessment hearing instead. If some defendants have filed a defence while others are in default, the plaintiff cannot obtain a default assessment against the defaulting party alone; the whole matter must proceed to a settlement conference and, if necessary, trial (Rule 11.03(7)).

Setting Aside a Default

Rule 11.06 lets the court set aside a noting in default or a default judgment, and undo enforcement steps already taken, on terms that are just, if the defaulting party shows both:

1. A meritorious defence and a reasonable explanation for the default, and
2. The motion to set aside is made as soon as reasonably possible in all the circumstances.

Delay in bringing the motion, without a good reason, is often fatal even where the proposed defence looks strong on its face — timeliness is treated as evidence of good faith.

Dismissal for Abandonment

The clerk dismisses an action as abandoned, after giving 45 days' notice, where: an undefended action has sat more than 180 days since the claim was issued with no defence filed and no default noted; or a defended action has sat more than 150 days since the first defence with no settlement conference completed. Filed Terms of Settlement, or a defence admitting liability together with a payment proposal, blocks dismissal under this rule.