3.36: Judgment in default of defence and noting in default
3.37: Application for judgment against defendant noted in default

Case Summary

The Defendant appealed an Order of Wilson J, granting the Plaintiff a renewal of a Judgment against the Defendant for general damages, punitive damages and pre-judgment interest. The Defendant claimed that the Application for renewal was not brought within the 10 year limitation period, and therefore the Application for renewal should have been dismissed. The Defendant had been Noted in Default on October 31, 2001. The Plaintiff brought an Application for Judgment, pursuant to former Rule 152, and obtained Judgment on January 10, 2002. The Order for renewal was obtained by the Plaintiff on January 9, 2012, subject to the Defendant’s right to challenge the renewal on the basis that it was not renewed within the 10 year limitation period.

The Defendant argued that the 10 year limitation period began running on October 31, 2001, the date upon which the Defendant was Noted in Default, whereas the Plaintiff argued that the limitation period began running on January 10, 2012, the date upon which Judgment was granted. The Court agreed with the Plaintiff and stated that:

…A Praecipe to Note in Default is not a judgment or an order for the payment of money. A praecipe is nothing more than a direction to the clerk of the court signed by a party or his lawyer (as in this case) requesting that a notation be made on the court file that the defendant is delinquent in some respect. …

The Court held that there was no Judgment or Order for payment of money against the Defendant until the January 10, 2002 Judgment was pronounced, and that the Noting in Default was not a Judgment or an Order for the payment of money. The Order for renewal was therefore granted within the 10 year limitation period and the Appeal was dismissed.

View CanLII Details