If a defendant completely ignores your lawsuit or fails to attend a Toronto Small Claims Court trial, you can request a Default Judgment. You will likely need to attend an Assessment Hearing to physically prove the exact amount of your financial damages to the judge before the court issues a final payment order.
Filing a civil lawsuit is a stressful undertaking, but it becomes incredibly confusing when the person or company you are suing simply ignores the paperwork. 👻 Many plaintiffs mistakenly believe that if the defendant throws the lawsuit in the garbage or ghosts the court dates, the lawsuit simply expires or goes away. In reality, the Ontario legal system has strict mechanisms in place to ensure that ignoring a lawsuit leads to severe financial consequences.
When a defendant fails to file a formal Defence within 20 days of being served, they are in default. Alternatively, if they file a Defence but fail to show up to the trial, the court can proceed in their absence. ⚠ The law in Ontario allows you to proceed without them, but you do not automatically get a cheque in the mail. Depending on whether they ignored the claim entirely or skipped the trial after filing a Defence, you must take different steps to secure a legally binding judgment, and then navigate the complex process of enforcing it.
Step-by-Step Process in Toronto
Whether you are pursuing an unpaid debt in Etobicoke, a breach of contract in North York, or property damage in Scarborough, default proceedings follow strict rules. 📝 You will be managing this process through the Toronto Small Claims Court. Here is the step-by-step strategy for handling an absent defendant.
Step 1: Ensure Rock-Solid Proof of Service
Before a judge will ever grant a default judgment, you must prove beyond a shadow of a doubt that the defendant actually received the Plaintiff’s Claim. 📄 You must file a sworn “Affidavit of Service” with the courthouse. This document, often signed by a professional process server or yourself in front of a notary, details exactly when, where, and how the lawsuit was handed to the defendant.
Step 2: Note the Defendant in Default
If 20 days have passed since they were served and no Defence has been filed, you must file a “Request to Note in Default” form with the court clerk. 📋 Once noted in default, the defendant essentially loses their right to participate in the lawsuit, file evidence, or receive notices about future court dates unless a judge explicitly allows them back in.
Step 3: Proceeding if No Defence is Filed (Rule 11)
If the defendant fails to file a Defence within 20 days, you can note them in default. If your claim is for a “liquidated” amount (such as an unpaid invoice of exactly $5,000 CAD), the court clerk can sign a Default Judgment directly. 💬 However, if your claim is for “unliquidated” damages (like the estimated cost of repairing a poorly built deck), you must request and pay to schedule an Assessment Hearing, where a judge will review your evidence in an undefended hearing to determine the proper award.
Step 4: Proceeding to Trial if They Skip the Hearing (Rule 17.01)
If the defendant filed a Defence but fails to attend the trial, the procedure is different. You do not file for default or request a clerk’s assessment. 📸 Under Rule 17.01(2) of the Small Claims Court Rules, the judge will simply proceed with the trial in the defendant’s absence (an undefended trial) on your scheduled trial day. You must still bring your Document Brief, photos, and evidence to prove your claim, and the judge can make a final trial judgment then and there.
How Much Does it Cost in Toronto?
Moving a case through default proceedings requires paying additional court fees, though it is vastly cheaper than fighting a full, multi-day trial. As of March 2026, expect the following costs in Canadian dollars (CAD). 💸
- Noting in Default & Judgment Fees: It generally costs $94 CAD (for infrequent claimants) to file the paperwork for a default judgment or an assessment hearing at the Small Claims Court.
- Scheduling a Trial or Assessment Hearing: Under O. Reg. 332/16, the court fee to set down a trial or an assessment hearing is $308 CAD for infrequent claimants ($403 CAD for frequent claimants).
- Process Server Fees: If you struggled to find the defendant initially, paying a skip-tracer or process server can cost $150 to $400 CAD.
- Enforcement Costs: Once you win, you must pay to enforce the judgment. Issuing a Notice of Garnishment costs about $144 CAD.
- Legal Fees: Hiring a local Toronto law firm or paralegal to manage the default paperwork usually costs $500 to $1,500 CAD.
| Step in Default Process / Litigation | Estimated Court Fee (CAD) |
|---|---|
| Issuing Plaintiff’s Claim | $108 (Infrequent claimant) |
| Default Judgment Filing | $94 (Infrequent claimant) |
| Setting Down a Trial / Assessment Hearing | $308 (Infrequent claimant) |
| Issuing a Garnishment | $144 |
How Long Does the Process Take?
Securing the judgment is relatively fast, but collecting the money is the true test of patience. ⌛ Getting the Default Judgment signed generally takes 1 to 3 months after the 20-day deadline expires. However, actually enforcing that judgment (by garnishing wages or seizing a bank account) can take many months or even years, depending on how well the defendant hides their assets.
Frequently Asked Questions (FAQ)
Can the defendant cancel a Default Judgment?
Yes, but it is not easy. The defendant must file a formal “Motion to Set Aside Default Judgment” as soon as they discover it. They must prove to a judge that they had a valid excuse for missing the deadline (like being hospitalized or never actually being served) and that they have a strong, arguable defence against your claim.
Will the Small Claims Court collect the money for me?
No. This is a massive misconception. The court only provides you with the legal order confirming you are owed the money. It is entirely your responsibility (or your paralegal’s) to track down the defendant’s employer or bank and file the proper enforcement documents to forcibly collect the funds.
What if the defendant showed up before but skipped the final trial?
If the defendant participated in the early stages (like the Settlement Conference) but inexplicably fails to appear on the actual day of the trial, the judge will typically proceed without them. You will present your evidence in an undefended trial, and the judge will likely rule in your favour that same day.
Can I claim my legal costs if they default?
Yes. When the judge signs the Default Judgment, you can ask them to include your out-of-pocket expenses, such as the court filing fees, process server costs, and a small, capped portion of your paralegal or legal representation fees.
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