The defendant did not respond to my Statement of Claim. Now what? Default judgment procedure in Saskatchewan

The issuance of a statement of claim marks the commencement of an action in the Court of King’s Bench. Once issued, the statement of claim must be served on the defendants to the action. The King’s Bench Rules [Rules] set out certain timelines within which a defendant must respond. Typically, a defendant would respond by serving and filing a statement of defence. However, a defendant may not respond at all. We consider the steps that a plaintiff may take to obtain judgment if a defendant fails to defend against an action.

Default of defence

The Rules set out timelines within which a defendant must serve and file a statement of defence: see Rule 3-15. If the defendant is served in Saskatchewan, the Rules require that a statement of defence be served and filed within 20 days. However, the defendant is afforded a longer period of time if they are served outside of Saskatchewan.

If the defendant has failed to serve and file a statement of defence within the prescribed time period, they may be noted in default of defence. Rule 3-21(1) provides that “[i]f any defendant fails to deliver a statement of defence and the time for doing so has expired, the plaintiff may, on filing proof of service of the statement of claim, require the local registrar to note the default of that defendant”.

A defendant that fails to defend against a plaintiff’s claim effectively concedes their liability to the matters described in the claim: C.M. v L.M., 2014 SKQB 102 at para 2, 443 Sask R 11. The plaintiff is therefore entitled to enter default judgment and proceed to an assessment of damages. Once a defendant has been noted for default of defence, they will not be permitted to file a statement of defence with the Court unless they obtain the consent of the plaintiff or obtain permission from the Court.

Obtaining judgment after default of defence

After a defendant has been noted in default of defence, the plaintiff may have judgment entered against them. Rule 3-21(4) provides as follows:

(4)    On default being noted as provided in this rule, the plaintiff may enter judgment or take any other proceedings that the plaintiff may be entitled to take on default of defence.

While the plaintiff may be entitled to have judgment entered against a defendant that has defaulted, how that judgment is obtained will depend on the nature of the claim that the plaintiff has made. The Rules outline different procedures for different types of claims. Selecting the appropriate procedure is important, and failure to do so may disentitle the plaintiff to the judgment sought.

Claims for debts or liquidated demands

Claims for debts or liquidated demands receive special treatment under the Rules: see Rule 3-22. Notably, if the plaintiff’s claim relates to a debt or liquidated demand, it is unnecessary for the defendant to be noted for default before judgment is obtained by the plaintiff. The process for obtaining judgment for a debt or liquidated demand is essentially an administrative exercise.

Rule 17-1 defines the term “liquidated demand” as follows:

“liquidated demand” means:

(a)    a claim for a specific sum payable under an express or implied contract for the payment of money, including interest, not being in the nature of a penalty or unliquidated damages, if the amount of money claimed can be determined by:

(i)    the term of the contract;

(ii)    calculation only;

(iii)    taking an account between the plaintiff and the defendant; or

(b)    a claim for a specific sum of money, whether or not in the nature of a penalty or damages, recoverable pursuant to an enactment that contains an express provision that the subject of the claim may be recovered as a liquidated demand or as liquidated damages;

While “debt” is not defined in the Rules, the term was discussed by the Court in Luby v 1011447334 Saskatchewan Ltd., 2019 SKQB 279 at para 15:

[15]    The definition of a “debt”, although not expressly set out in the Rules, overlaps somewhat with the express definition of a liquidated demand. Essentially, a “debt” refers to a specific sum that is determinable and due to the plaintiff through a certain and express agreement.

A claim for a debt or liquidated demand must be clearly set out in the statement of claim. The statement of claim must include sufficient information to permit the Court and the defendant to ascertain the specific sum owed by the defendant. If the plaintiff’s claim is not for a debt or liquidated demand, or seeks additional relief, a separate procedure must be followed.

Claims for pecuniary damages or detention of goods

The first step to obtaining judgment for a claim involving pecuniary damages or the detention of goods is to have the defendant noted for default pursuant to Rule 3-21. Once the defendant has been noted for default, the plaintiff is entitled to apply without notice to the Court for an assessment pursuant to Rule 3-23.

In Vanghel v G.N. Johnston Equipment Co. Ltd., 2005 SKQB 452 at para 4, 272 Sask R 263, the Court noted that the term “pecuniary” is “used in its common meaning of ‘concerning, or consisting of, money’”, and that a reference to “pecuniary damages” in this context “distinguishes the claim from one for relief of a non-monetary nature such as an injunction or recovery of land”.

Rule 3-23(1)(b) describes what the Court may do when the plaintiff applies for an assessment for a claim involving pecuniary damages or the detention of goods:

(b)    on an application without notice by the plaintiff, the Court may:

(i)    assess the value of the goods and the damages or either of them;

(ii)    order that the value of the goods and the damages, or either of them, be ascertained in any way the Court may direct.

After the Court has made an assessment pursuant to Rule 3-23(1)(b), judgment may be entered in accordance with that assessment.

Claims for debts or liquidated demands and pecuniary damages or detention of goods

Rule 3-24 recognizes the possibility that a plaintiff may make a claim involving both a debt or liquidated demand and pecuniary damages or the detention of goods. Rule 3-24 states:

Claim for debt or liquidated demand and pecuniary damages or detention of goods

3-24    If the plaintiff’s claim is for a debt or liquidated demand, and also for pecuniary damages or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to serve and file a statement of defence, the plaintiff may:

(a)    after filing an affidavit in Form 3-22, enter final judgment for the debt or liquidated demand, any claimed interest and costs against the defendant or defendants failing to defend; and

(b)    as to the balance of the claim:

(i)    have the default noted as provided in rule 3-21; and

(ii)    proceed as mentioned in rule 3-23.

Rule 3-24 allows the plaintiff to engage the administrative procedure for claims concerning debts or liquidated demands in order to obtain judgment for that portion of the claim. Rule 3-24 also allows the plaintiff to obtain judgment for the balance of the claim by having the defendant noted for default before applying to the Court for an assessment pursuant to Rule 3-23.

Judgment in other actions

Rule 3-26 sets out the procedure to be followed for obtaining judgment for “any other action” not captured by Rules 3-22, 3-23, or 3-24. Rule 3-26 states:

Judgment in other actions

3-26(1)        In any other action on default of defence by one or more defendants, the plaintiff may apply without notice to the Court for an order for judgment.

(2)        On an application pursuant to subrule (1), the Court may order the judgment to be entered that the Court considers that the plaintiff is entitled to, with or without evidence of the truth of the statement of claim.

(3)        Evidence of the truth of the statement of claim may be given orally, by affidavit or by any other means that the Court may direct.

Rule 3-26(2) contemplates the possibility that the Court could require evidence of the truth of the plaintiff’s statement of claim before judgment is granted. Such evidence may be provided orally, by affidavit, or by any other means directed by the Court.

Conclusion

The commencement of an action in the Court of King’s Bench is only one step forward on the road to obtaining judgment. If a defendant has failed to respond to a statement of claim by serving and filing a statement of defence within the time period prescribed by the Rules, judgment may be obtained by the plaintiff. However, as noted, the path to judgment will depend on the nature of the claim at issue.

Matt Schmeling specializes in civil and criminal litigation. Mackinley Sim specializes in civil litigation. Both Matt and Mackinley work out of McDougall Gauley LLP’s Regina office. Our lawyers have extensive experience acting in civil litigation matters. To learn more, please contact Matt, Mackinley, or another member of our Litigation, Dispute Resolution & Appeals team.