Noted in Default, Then Cleared to Fight — and Win

The situation

Arman worked retail during the week and Selam worked as a landscaper. On weekends, the two of them ran a small side business supplying interlocking stone, soil, and mulch to homeowners and small landscaping crews around Huntsville, sourcing materials in bulk and delivering them by trailer. It was modest, cash-flow-tight work, but it had built a steady base of repeat customers over a few years.

One of those customers was Niloufar, who had ordered a large quantity of interlocking stone for a backyard patio project. Months after the delivery, she contacted Arman and Selam claiming the stone had started flaking and discolouring, and that she had to pay someone else to remove and replace it. She asked for a refund of the full purchase price plus what she said the replacement work cost her. When Arman and Selam pushed back, explaining the stone had been installed by her own contractor and any flaking was more likely a drainage or installation issue than a product defect, the conversation went nowhere. A few months later, Niloufar filed a claim in Small Claims Court for roughly $23,000, covering the original materials cost and the cost of redoing the work.

The problem

A Small Claims Court claim in Ontario comes with a firm deadline to file a defence once it has been properly served. Arman and Selam were served at the address listed on their old invoices — a rental property they had moved out of eight months earlier. The property manager left the envelope on a counter inside, and by the time Arman happened to stop by to collect mail, the deadline had passed.

Because no defence was filed in time, the court registrar had noted Arman and Selam in default. A noting of default is a formal step: the registrar records that the defendant did not respond within the required period, and until that noting is set aside, the defendant loses the ability to file a defence or contest liability. The plaintiff can then move toward default judgment, which in this case would have meant a $23,000 order against a business with thin margins to begin with, without either side ever putting evidence in front of a judge.

Arman and Selam came to Treadstone Law within days of discovering what had happened, worried they had already lost. They had a real defence — records showing the materials had passed inspection when delivered, and photos suggesting a drainage problem on Niloufar's property — but none of it mattered yet, because procedurally they were not entitled to raise it.

What we did

1. Moved immediately to set aside the noting of default. Courts generally allow a noting of default to be lifted where the defendant has a plausible explanation for the missed deadline, moved promptly once they learned of it, and has an arguable defence on the merits. We prepared the motion the same week, supported by evidence of the outdated service address and the delivery records showing the materials had left the yard in good condition.
2. Reached out to Niloufar directly to propose consent terms. Rather than litigate the motion itself, which would have added weeks and cost to both sides, we contacted Niloufar to propose setting the noting aside by consent, in exchange for Arman and Selam covering the costs she had incurred bringing the claim to that point and agreeing to a short, fixed deadline to file their defence. She agreed. The court endorsed the consent terms, and within about three weeks of the original deadline being missed, Arman and Selam were back in a position to defend the claim on its merits.
3. Filed a defence built on the paper trail. The defence set out that the materials met specification at delivery, that installation and drainage were outside Arman and Selam's control once the stone left their trailer, and that no defect had been identified by anyone with relevant expertise.
4. Built the trial file methodically, piece by piece. Over the following months, we assembled delivery receipts, supplier invoices showing the stone's origin and grade, timestamped photos from the delivery day, and a written account from the crew member who had unloaded the order. We also gathered photos Niloufar herself had sent months later, which showed pooling water along one edge of the patio — consistent with a drainage problem rather than a product flaw.
5. Prepared Arman and Selam for their own testimony. Neither had testified in court before. We walked through likely questions, the order in which the documents would come up, and the importance of answering only what was asked rather than volunteering explanations. In Small Claims Court, parties usually represent themselves or bring a paralegal, and a well-organized, calm witness carries real weight with a judge who is hearing a dozen matters that day.

The outcome

The trial was held roughly a year after the claim was first filed, which is a fairly typical timeline for Small Claims Court once a matter is contested rather than resolved on consent. Niloufar testified about the flaking and the cost of redoing the work. Under questioning, she was unable to point to any inspection or opinion connecting the flaking to the materials themselves, as opposed to how the patio had been built and how water was draining across it.

The judge dismissed the claim in full, finding that Arman and Selam had supplied materials consistent with what was ordered and that the evidence pointed more strongly to an installation or drainage issue than to any defect in the stone. Arman and Selam kept the roughly $23,000 they had been asked to pay, and the business avoided a judgment that would have been very difficult for a small side operation to absorb.

The case never should have turned on a missed piece of mail. What mattered was catching the default quickly, resolving it without a drawn-out fight over the motion itself, and then treating the months before trial as an opportunity to build a file a judge could actually rely on — rather than assuming a good underlying story would be enough on its own.

What you can learn from this