When an employee commences a lawsuit against their former employer, they often want to see the matter move forward quickly without delay. Suppose the defendant causes significant delay in delivering their statement of defence – can the defendant bring default proceedings against them?
In many cases, it would not be appropriate to do so. Although the court’s rules provide for noting a defendant in default when they miss the deadline for their statement of defence, court decisions over the past several years make it clear that doing so is inappropriate when the defendant is trying to participate in the lawsuit and has not simply ignored it.
Noting a Defendant in Default
Once a statement of claim has been served on the defendant, the court’s rules provide a short time limit for the delivery of the statement of defence. In many provinces, including Ontario, this time limit is 20 days. If the defendant retains a lawyer and delivers a Notice of Intent to Defend, they get an additional 10 days.
If the defendant misses this deadline, the rules provide that a plaintiff may note the defendant in default. When that happens, the defendant will not be able to defend the lawsuit without the consent of the other parties or a court order. The plaintiff can then move for default judgment against the defendant, which if granted, has the same enforcement mechanisms as a judgment obtained at trial.
Courts will not Decide Cases Based on a Technical Default
Despite these deadlines, the courts wish to have matters decided on the merits of the case, rather than on technical defaults and breaches of timelines. For instance, the Rules of Civil Procedure describe the general principle as follows:
“These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” (emphasis added)
The Court of Appeal has cited with approval the following statement regarding extensions of time for the delivery of pleadings:
“Motions to extend the time for delivery of pleadings and to relieve against defaults are frequently made and are typically granted on an almost routine basis. Usually opposing counsel will consent to such relief as a matter of professional courtesy. […] It is not in the interests of justice to strike pleadings or grant judgments based solely on technical defaults. Rather, the Court will always strive to see that issues between litigants are resolved on their merits whenever that can be done with fairness to the parties.”
In the decision of Strathmillan Financial Limited v. Teti, the court went even further, stating that “Default proceedings […] are not to be used for tactical purposes.” The court further stated:
“When counsel are involved for both sides and are having a disagreement about pleadings, timing, or otherwise, it is not appropriate to take default proceedings to enforce the plaintiff’s position. There may be a technical default as described in the Rule. But the Rule is inapplicable in the circumstances.
If counsel have a disagreement on process matters that they cannot sort out themselves despite reasonable efforts and compromise, a case conference is available under Rule 50.13 (1). This rule promotes settlement of issues in the interests of an efficient and affordable resolution of the action on its merits.
Using the default judgment rules for tactual advantage just sets the parties down the path of unnecessary motions to set aside the default. This is the opposite of ensuring the efficient, affordable, and fair resolution of the civil dispute on the merits.”
In the very recent decision of Touranto v. Varnam, the court extended this principle to self-represented litigants who are attempting to participate in the lawsuit but have not yet filed a statement of defence. In that case, the court wrote:
“I believe that it is important for the administration of justice that there be confirmation from this Court that self-represented litigants are entitled to the same procedural rights that represented parties have, and that counsel dealing with self-represented litigants must extend to them the same courtesies that would have been offered to represented parties.”
The court’s message is clear: noting a defendant in default should only be used when the defendant does not participate in the lawsuit. It should not be done for tactical purposes, and when the defendant is attempting to participate in the lawsuit.
Sometimes, clients will ask us to impose strict deadlines on the defendant and refuse requests for extensions of time. However, courts expect the parties to cooperate and to agree to reasonable extensions of time. The more appropriate step to take when a defendant is dragging their feet is to schedule a case conference with the court to address the delay and set a timetable for the steps moving forward.
Conclusion
Ensuring that litigation proceeds in an efficient and timely manner is one of our main goals when representing clients in employment law litigation. However, there is always room for cooperating with counsel, providing indulgences and agreeing to extensions of time, even when seeking to move forward as quickly as reasonably possible. Bringing default proceedings against a defendant will not necessarily cause the matter to be resolved faster, and in many instances the court will consider such conduct to be inappropriate.
Whether you are an employee or an employer that is involved in litigation, we can help you make strategic decisions to ensure that your case is moving in the right direction.
