It May Not Be Too Late to Set aside a Default Judgment
Depending on the circumstances, it may not be too late to set aside a default judgment.
While my client was away in Africa for an extended period of time, a Plaintiff had issued a Plaintiff’s Claim against her and ultimately obtained a default judgment because no defence was filed to the Claim. My client had never received a Claim and was unaware of the judgment. I was retained to set aside the default judgment which had resulted in her driver’s licence having been suspended.
My client frequently visited her family in Africa for lengthy periods of time.
During one or more of those times when she was out of the country, the Plaintiff alleged that he served a Plaintiff’s Claim on my client and then obtained a default judgment against my client on June 11, 2010. Because the Claim and judgment was based on damages caused in a motor vehicle accident, my client’s licence was suspended.
Upon her return from Africa on November 1, 2010, she reviewed a letter from the Ministry of Transportation that had been delivered while she was away advising her of her driver’s licence suspension. The very next day, she left for Africa again on an already booked trip for 5 months. Upon her return on March 31, 2011, she contacted me. This was now nine months after the judgment was obtained.
I promptly brought a motion to set aside the judgment based on the client’s affidavit that I had prepared which set out why she had not defended against the Claim, why there was a delay in taking steps to set aside a nine-month-old judgment, and her strong defence to the allegations set out in the Plaintiff’s Claim.
At the motion hearing, based on the facts presented, the presiding judge made an Order setting aside the default judgment.
There are three takeaways from this matter:
- If you are away for one or more extended periods of time, have someone who knows how to reach you look after your affairs in your absence.
- Take the swiftest action possible to fix things that have gone wrong. It may not always be possible to set aside a judgment or other legal proceedings that have occurred if a lot of time has passed.
- In the situation above, the client was successful because she had excellent documentation to support and explain why she had not been aware of the Claim that had been issued against her. She also had an irrefutable defence to the Plaintiff’s Claim against her.