- A defendant served with a claim in Ontario generally has 20 days to serve and file a defence if served within Ontario, 40 days if served elsewhere in Canada or the United States, and 60…
- Noting in default doesn't itself decide anything — it's a status change, not a judgment.
- - Default judgment is the actual order from the court granting the plaintiff the relief claimed — the money, or other remedy — and it generally can't happen until the defendant has first…
You started a lawsuit, had the other side properly served, and the deadline to file a defence has come and gone with nothing filed. Before you can get a judgment, there's a procedural step in between: noting the defendant in default.
It sounds technical, and it is — but it has real legal consequences for the defendant, and it's the gateway to everything that follows, including a possible default judgment. This guide explains what noting in default means, what changes once it happens, and what both sides can do next.
When a Defendant Can Be Noted in Default
A defendant served with a claim in Ontario generally has 20 days to serve and file a defence if served within Ontario, 40 days if served elsewhere in Canada or the United States, and 60 days if served outside Canada and the United States. If that window passes with no defence, notice of intent to defend, or other permitted response filed, the plaintiff can ask the court to note the defendant in default.
This is a step the plaintiff has to request — it doesn't happen automatically the moment a deadline passes.
What Actually Changes Once a Defendant Is Noted in Default
| Before noting in default | After noting in default |
|---|---|
| Defendant can still file a defence and participate normally | Defendant generally can't take further steps in their own defence without the court's permission or the plaintiff's consent |
| Allegations in the claim are not yet treated as admitted | Defendant is deemed to admit the truth of the allegations in the statement of claim, for the purposes of what follows |
| Plaintiff cannot yet seek default judgment | Plaintiff can move toward default judgment |
Noting in default doesn't itself decide anything — it's a status change, not a judgment. But it removes the defendant's ability to keep contesting the claim in the ordinary way.
Noting in Default Is Not the Same as Default Judgment
These two steps are often confused, but they're distinct:
- Noting in default is a procedural step recorded by the court, reflecting that the defendant failed to respond in time.
- Default judgment is the actual order from the court granting the plaintiff the relief claimed — the money, or other remedy — and it generally can't happen until the defendant has first been noted in default.
What a Plaintiff Can Do Once a Defendant Is Noted in Default
- Confirm the defendant was properly served and the response deadline has genuinely passed.
- Request that the defendant be noted in default with the court.
- Move toward default judgment — the specific process depends on whether the claim is for a fixed, calculable amount or requires the court to assess damages.
- Once judgment is obtained, pursue enforcement if the defendant still doesn't pay voluntarily.
Can a Defendant Undo a Noting of Default?
Yes — a noted defendant can bring a motion asking the court to set aside the noting of default and allow a late defence. Courts have discretion here, and generally look at things like whether there's a reasonable explanation for the delay, whether the proposed defence has a genuine chance of success, how promptly the defendant moved once they learned of the problem, and whether undoing it would unfairly prejudice the plaintiff. There's no fixed formula — it comes down to the court's overall assessment of fairness in the circumstances.
Frequently asked questions
How long does a defendant have to respond once noted in default?
There's no separate countdown that starts running once someone is noted in default — the point is that the original deadline to defend has already passed. A noted defendant generally needs to bring a motion to set the noting aside before they can meaningfully re-engage with the claim.
Can a noted defendant still show up in court later?
A defendant who has been noted in default generally loses the right to participate in most further steps without the court's permission, though they may still receive notice of certain proceedings, such as a hearing to assess unliquidated damages, depending on the circumstances.
What if the defendant says they were never actually served?
Improper service is one of the strongest grounds to challenge a noting of default or a subsequent judgment. If service didn't happen the way the rules require, that's worth raising immediately with a lawyer rather than assuming the noting will stand.
Does noting in default work the same way in Small Claims Court?
Small Claims Court has its own procedure and terminology — a "Plaintiff's Claim" rather than a "Statement of Claim" — but the same basic concept applies: a defendant who doesn't respond in time can be noted in default, opening the door to a default judgment.
This is a litigation question
Start a file online — flat, published fees, reviewed by a licensed Ontario lawyer before a dollar is owed.