The Plaintiff applied for Judgment after the Defendant had been noted in default under Rule 3.37. The Court noted that the purpose of the Application for an assessment of damages is to determine the quantum of damages, rather than the liability for damages, provided that the facts deemed to have been admitted establish the cause of Action. A Defendant who is noted in default is deemed to have admitted the allegations of fact contained in the Statement of Claim.

The Plaintiff had claimed that the Defendant was overpaid pursuant to an employment agreement. The Court found that the Plaintiff’s own evidence contradicted the claim that it made in its Statement of Claim. Consequently, the Plaintiff had failed to show that the Defendant was actually overpaid, and there was no need for the Court to weigh evidence between competing versions of events.

The Court held that it did not require a formal Cross-Application to dismiss the claim since Rule 3.37(3)(b) gives the Court the authority to make any necessary Order. On that basis, Master Schlosser dismissed the Plaintiff’s claim.

The Court also awarded Costs under Column 1 of Schedule C. Master Schlosser did not reduce Costs pursuant to Rule 10.42 since the Defendant did not choose the Court of Queen’s Bench forum.