How This Rule Works

This Rule replaces the previous Rule 12 - Default of Defence for actions. Default judgment remains available from the prothonotary (R.8.02) or a judge (R.8.03), depending on the circumstances. In both cases, it may be granted on the basis that all pleadings in support of the claim have been admitted (R.8.05).

It is possible to get partial default judgment under R.8.04. A party can obtain default judgment on an undefended claim and proceed to trial on another claim defended by the same party.

Rule 8.02 clearly sets out what is required to obtain default judgment from the prothonotary -

1. proof of proper notice;
2. the time for filing has expired;
3. no defence has been filed; and
4. the judgment is for damages only.

Rules 8.06 and 8.07 detail the method by which damages are calculated for the prothonotary. Even if a demand for notice has been filed, the motion may still be made to the prothonotary (R.8.02(2)(b)).

If damages need to be assessed, or another remedy is sought, default judgment is obtained on motion to a judge (R.8.03 and 8.08) with the judge assessing damages under Rule 70 - Assessment of Damages or by reference and report under Rule 11 - Reference. Generally, assessments of damages will be conducted using a motion by appointment (R.25), which may be made ex parte, as the other party is disentitled to notice (R.22.03(1)(c)).

Rule 8.10 expressly sets out that it is an abuse of process to obtain a default judgment without reasonable warning if the opposing party has (a) advised in writing that they intend to defend the claim; (b) made or defended another claim in the same proceeding; or (c) retained counsel to deal with the claim and provided contact information for counsel. Judgments so obtained may be set aside under Rule 88 - Abuse of Process.

Highlights of Changes

Scope of Rule 8 - One key change to this area is that while the previous R.12 applied broadly to any “originating notice,” Rule 8 applies only to actions, not applications. Summary disposal of applications is dealt with in R.5.14.

Mortgages – the provisions relating to default in actions on mortgages are now found in R.72 - Mortgages.

Filing Deadlines Changed - The deadlines for filing a defence have changed slightly for actions filed after January 1, 2009. For service in Nova Scotia, the 15 day deadline amounts to three full weeks, 30 days to six weeks, and 45 days to 9 full weeks, not including holidays. For actions filed before January 1, 2009, the previous Rules continue to govern the notice period for giving notice of an action to a person, and motions for default judgment (R.92.05).

To illustrate the differing time periods for filing a defence, assume a notice of action and statement of claim are served on a defendant in Nova Scotia on October 1, 2008. Under the current Rules, 20 days for filing a defence would expire on October 21. Under the new Rules, 15 days would make the last day to file a defence October 24 (15 clear business days, plus the Thanksgiving Holiday Monday.)

Rule 31.03 governing notice is titled “person to whom personal service must be made” and goes on to specify methods of service for all types of bodies. Section 7(1)(s) of the Interpretation Act, R.S.N.S. 1989, c. defines “person” to include a corporation and a person’s heirs, executors, administrators or other legal representatives. Rule 94.08 specifies that “person” includes a non-party.

Prejudgment Interest – Allowable pre-judgment interest has been reduced from 6% to 5%.

Practice Tip

Defence counsel should continue to follow the practice of writing to the plaintiff or plaintiff’s counsel immediately after being retained, as this will prevent the plaintiff from obtaining default judgment without a reasonable warning.