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Default of defence: liquidated demands, damages, detention, etc.
16.01. (1) Where an originating document contains any one of the claims mentioned in rule 16.01(2) and a defendant fails to file a defence thereto within ten days of the service of the document or within such time as the Court may order, the plaintiff may enter judgment against the defendant and continue the proceeding against any other defendant.
(2) The judgment may be entered for costs, and
(a) where a claim for liquidated demand only, for a sum not exceeding the claim, and where part of the claim is for interest at an unspecified rate, then for an additional sum for the interest to the date of entering judgment at the rate prescribed pursuant to The Judgment Interest Act;
(b) where a claim is for unliquidated damages only, for damages to be assessed;
(c) where a claim relates to the detention of goods only, for the delivery of the goods or their value to be assessed; and
(d) where a claim is for the possession of land only, for possession of the land, provided if there is more than one defendant judgment shall not be entered against any defendant until judgment for possession of the land has been entered against all the defendants.
(3) Where interlocutory judgment is entered and the damages or value of the goods are assessed and costs taxed, a final judgment may be entered for the recovery of the damages, or the delivery of the goods or their value as assessed, and costs as taxed.
Default of defence: mixed claims
16.02. Where an originating document issued against any defendant is endorsed with two or more of the claims mentioned in rule 16.01 and no other claim and the defendant fails to file a defence, the plaintiff may, after the time limited for defending, enter against the defendant such judgment in respect of each such claim that the plaintiff would be entitled to enter under these rules as if it was the only claim endorsed on the originating document and continue the proceeding against the other defendants, if any.
Default of defence: other claims
16.03. (1) Where an originating document issued against any defendant is endorsed with any claim not mentioned in rule 16.01, or any of the claims mentioned in rule 16.01 together with any other claim and the defendant, or all the defendants if there is more than one, fails to file a defence or appear on the hearing under the originating document, the plaintiff may, after the expiration of the time limited for defending or appearing apply to the Court to enter judgment and the Court shall give such order as is just.
(2) Where the plaintiff makes such a claim as is mentioned in rule 16.03(1) against more than one defendant, and any defendant makes default as mentioned in that paragraph and any other defendant defends or appears, the plaintiff may
(a) when the plaintiff's claim against any defendant in default is severable from the plaintiff's claim against the other defendants, apply under that paragraph for an order against the defendant in default and continue the proceeding against any other defendant; or
(b) apply to the Court for an order against the defendant in default when the proceeding is set down for trial or hearing against any other defendant.
Default of defence: in mortgage actions
16.04. (1) Where an originating document contains a claim in respect of a mortgage and a defendant fails to file a defence, the plaintiff on the application for foreclosure, possession or sale shall
(a) produce a certificate of a solicitor setting forth all the encumbrances registered against the property after the date of execution of the mortgage sought to be foreclosed;
(b) establish the following facts by affidavit to the satisfaction of the Court,
(i ) that the originating document has been served upon the defendant, or substituted service effected;
(ii) that the defendant has not filed a defence within the time limited for filing it; and
(iii) that the allegations contained in the originating document are true; and
(c) produce a statement, verified by the affidavit of the plaintiff or some person having a personal knowledge of the facts, showing in sufficient detail all payments which have been made on account of principal and interest of the mortgage and the dates of the payments so as to enable the Court to check the computation of the amount alleged to be due, and containing such other proof as the circumstances of the proceeding require to entitle the plaintiff to the order applied for: provided that
(i ) where an account stated or a settlement agreed to in writing of any person then liable on the mortgage is produced, it shall not be necessary to go farther back than the apparent date thereof in making up the mortgage account; and
(ii) where the mortgage has been transmitted to an executor, administrator or assignee of the mortgagee, the mortgage account up to the date of the transmission may be proved by information and belief on oath or by other proof to the satisfaction of the Court, and an affidavit or oath shall not be required from the mortgagee or any intermediate assignee denying any payment to the mortgagee of the principal or interest.
(2) On the application, the Court may,
(a) when the mortgagor or the mortgagor's assignee, or the party entitled to redeem, denies by affidavit or upon oath or affirmation the correctness of the statement of account, require further and better proof of the mortgage account;
(b) ascertain and determine the amount due to the plaintiff or refer the matter to a master to take an account;
(c) where it appears that there are persons other than the defendant, such as subsequent encumbrancers having an interest in the mortgaged property who ought to be present at the taking of the accounts, order the plaintiff or master to give notice to such persons to attend the taking of the same;
(d) direct a sale of the mortgaged property on such terms as the Court thinks fit without previously determining the priorities of encumbrancers or the amount due on their encumbrances;
(e) give such directions as are necessary with respect to continuing the proceeding against any defendant who has filed a defence in the proceeding;
(f) set a time within which any party entitled to redeem the mortgaged property may do so; or
(g) make such other order as is just.
(3) All subsequent accounts may from time to time be taken, subsequent costs taxed and necessary proceedings had for redemption, by any of the parties entitled to redeem the mortgaged property as if specific directions for such purpose were contained in the order made under rule 16.04(2).
The Court may, on the application of a purchaser of mortgaged property at a sale, grant a recovery order at any time to the applicant as a party or intervenor.
Proof on default
Proof on default
16.05. (1) The plaintiff shall not enter a judgment on default against a defendant under Rule 16 unless
(a) an affidavit is filed by or on behalf of the plaintiff proving due service of the originating document on the defendant; or
(b) the plaintiff produces the originating document endorsed by the defendant's solicitor with a statement that the solicitor accepts service of the originating document on the defendant's behalf.
(2) Where an application is made for an order affecting a defendant who has failed to file a defence or appear on a hearing under an originating document, the Court may require to be satisfied in such manner as it thinks fit that the defendant has failed to defend or appear.
Setting aside judgment entered by default
16.06. The Court may, on such terms as it thinks just, set aside or vary any judgment entered by default in pursuance of Rule 16.
Right of defendant to notice
16.07. Unless the Court otherwise orders or a rule otherwise provides, a defendant who fails to defend or appear on the hearing under an originating document shall not be entitled to receive notice of any subsequent steps taken in the proceeding against the defendant, other than the assessment of damages when ten days notice thereof by ordinary mail shall be given to the defendant.
Default of defence: counterclaims and third party notice
16.08. Where a party fails to file a defence to a counterclaim or third party notice, the provisions of Rule 16, with any necessary modifications, shall apply.
1986 c42 Sch D rule 16.08