TOERPER v HOARD, 2011 ABQB 85
3.37: Application for judgment against defendant noted in default
The Plaintiff commenced an Action against the Defendants seeking damages for breach of contract and breach of trust or fiduciary duty. A number of the Defendants were Noted in Default and the Statement of Defence filed on behalf of one of the Defendants was struck out pursuant to a prior Order of the Court, which also directed that the matter be set down for a Summary Trial for an assessment of damages.
Strekaf J. noted that Rule 3.37, which combines “old” Rules 142, 144, 147 and 152, allows for an Application to the Court for Judgment where a Defendant has been Noted in Default or where the Defendant’s Statement of Defence is struck out. The Court held that Rule 3.37 allows for an assessment of damages to determine the quantum of damages, rather than liability for the damages which is deemed to have been admitted by the Defendant when it was Noted in Default or had its Statement of Defence struck. The Court stated:
A defendant who is noted in default is deemed to have admitted the allegations of fact contained in the Statement of Claim.
The Court also noted that Rule 3.37 has the same application as its predecessors and case law which interpreted the former Rules of Court would apply to this Rule.View CanLII Details