Mandziuk j

3.37: Application for judgment against defendant noted in default
13.6: Pleadings: general requirements

Case Summary

The Plaintiff’s Statement of Claim alleged that he was assaulted by the individual Defendant, and that he suffered serious injuries as a result. None of the Defendants responded to the Claim, and they were noted in default. The Court directed that a hearing be held to assess the quantum of damages.

Justice Mandziuk reviewed Rule 3.37 which allows for a Plaintiff to apply for Judgment in respect of a Claim where Default Judgment had not been entered, if one or more Defendant has been noted in default.

Mandziuk J. considered whether the Plaintiff could be awarded more than the Plaintiff had claimed as general damages in the Statement of Claim. Mandziuk J. noted that the pleadings define the parameters of the Court’s jurisdiction, and that Rule 13.5(2)(c) requires that pleadings “set out relevant matters” including the amount and type of damages, cost, and interest claimed. However, Courts have allowed for pleadings to be implicitly amended when a cause of action “gives rise to an argument that was not raised in the pleadings”. Justice Mandziuk, referring to Alberta appellate authority, acknowledged that the prayer for relief is not a ceiling and has little legal status. As such, His Lordship granted Judgment and assessed the Plaintiff’s damages claim in a higher amount than that claimed in the Statement of Claim.

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