Bottom Line Up Front | SiLaw Canada 2026

Bottom Line Up Front

1. “Not responding” ≠ “not losing” — missing the defence window means automatic loss; you forfeit the entire case.
2. A written defence is the floor — even when targeting an out-of-court settlement, file the defence first to preserve your rights.
3. Counterclaim flips you from defendant to plaintiff — when sued, fold “what you owe them” and “what they owe you” into one case to save fees and time.
4. The window to set aside default is short — apply immediately upon discovery; the longer you wait, the harder it gets.
5. The biggest mistake for international students/newcomers — assuming no PR = no liability or that being abroad blocks enforcement. Wrong. Judgments now travel internationally.

1. The Ontario Defendant’s 20 Days

1.1 Five options upon receiving Plaintiff’s Claim

• Option A: Defence (Form 9A) — respond paragraph-by-paragraph: admit / deny / no knowledge; attach your facts and evidence.
• Option B: Settlement — within 20 days, negotiate privately; sign a Settlement Agreement; both parties discontinue.
• Option C: Counterclaim (Form 10A — Defendant’s Claim) — file simultaneously with Defence to assert your own claim against plaintiff.
• Option D: Motion — challenge jurisdiction, defendant identity, cause of action, etc.
• Option E: Do nothing (Default) — after 20 days, plaintiff applies for default judgment.

1.2 Form 9A drafting checklist

  - Respond paragraph-by-paragraph to plaintiff's Reasons for Claim
  - Mark each: Admit / Deny / Have no knowledge
  - "Deny" must include reasons (e.g., "I was not at that location on that date")
  - Cite evidence: Schedule 1, Schedule 2…
  - Legal defences: limitation / force majeure / mitigation / set-off
  - Counterclaim (if any) goes on Form 10A, filed alongside Form 9A

2. Default Judgment — Two Tracks

2.1 Liquidated claims (specific amount)

• Examples: $25,000 unpaid loan, $8,000 unpaid invoice — amount precisely known;
• Plaintiff files default request → clerk reviews → judgment signed without hearing;
• Judgment amount = claim amount + statutory interest from filing.

2.2 Unliquidated claims (damages to be assessed)

• Examples: renovation defects damages, personal injury — quantum requires evidence;
• Plaintiff applies for Assessment Hearing; deputy judge quantifies losses;
• Plaintiff must testify; defendant may attend even after default;
• Judgment may be less than the amount claimed.

3. Setting Aside Default Judgment

3.1 Three-element test

1. Reasonable explanation for the delay — moved without forwarding mail, mail lost, hospitalization, abroad (including China) on business — provable cause.
2. Arguable defence — must show a reasonably probable defence on the merits, not just “I disagree.”
3. No significant prejudice to plaintiff — plaintiff has not lost evidence or witnesses due to the delay; can resume in reasonable time.

3.2 Time window

• Sooner is much better: file Motion to Set Aside (Form 15A) immediately upon discovery.
• Within 6 months: usually granted with adequate explanation; over 1 year: must justify the long delay.
• Quebec has the shortest window — act on the same day you learn of the inscription.

4. Counterclaim Rules

4.1 When to counterclaim

• Plaintiff sued you, but you also have a claim against them (same matter or related).
• Example: plaintiff owes $15,000 in renovation costs and sues you for “$10,000 delay damages” — counterclaim to recover the $15,000.

4.2 Monetary caps

• Ontario: counterclaim must remain ≤$50K; if larger, counterclaim transfers to Superior Court while main claim stays in Small Claims.
• Quebec: counterclaim ≤$15K; otherwise rejected and split into separate cases.
• BC: CRT ≤$5K; SCC ≤$35K.
• Alberta: counterclaim ≤$100K.

4.3 Procedure

• File counterclaim with the defence (same case number).
• Pay separate filing fee (same as a regular claim).
• Plaintiff has 20 days to file a defence to the counterclaim.

5. 4-Province Comparison

6. Real-World Q&A

Q1: I served by registered mail and the defendant says it never arrived. Can I get default?

Proof of service required. Ontario demands Canada Post tracking + signed acknowledgment, or personal service + Affidavit of Service. A bare mailing record is insufficient — the clerk will refuse default and ask for more proof. Solution: re-serve via process server or apply for substitutional service.

Q2: I won default and the defendant moves to set it aside 6 months later. Can it be reversed?

Possibly. Court weighs three factors: (1) delay reason; (2) arguable defence; (3) prejudice to plaintiff. Long unexplained delay → usually denied. New evidence + short delay → often granted. Best practice: start enforcement (e.g., garnishment) immediately after default to maximize defendant’s “stake in the outcome” and force a settlement conversation.

Q3: Plaintiff sued me for $20,000; I want to counterclaim $40,000. What happens?

Quebec exceeds the $15K cap. Counterclaim is rejected; you must file a separate Civil Division case for the $40K. The plaintiff’s $20K case continues in Small Claims. Ontario/Alberta/BC SCC can hear both together (under their caps).

Q4: BC CRT respondent is completely silent. How fast does default issue?

~21–30 days. 14-day defence window → notice of intent to default → 7-day → default decision. CRT generally moves faster than provincial small claims courts, provided the respondent truly does not engage.

Q5: I’m an international student; my visa expires in 6 months. Can I still be sued?

Yes. Court jurisdiction is independent of immigration status — it depends on real and substantial connection. Even if you return to your home country, the plaintiff may obtain default judgment and: (1) freeze your Canadian bank accounts; (2) damage your future Canadian visa applications via integrity records; (3) seek recognition in your home country (theoretically possible, practically harder). Don’t ghost — you can authorize a representative or file a written defence even from abroad.

7. 60-Second Pre-Defence Checklist

1. When was service effected? (start of 20/14-day clock)
2. For each plaintiff allegation: admit / deny / no knowledge?
3. Limitation defence available? (ON/BC/AB 2 yr; QC 3 yr)
4. Jurisdictional defence? (over cap / excluded matter / wrong defendant)
5. Substantive defences? (no contract / fully performed / mitigation / set-off)
6. Counterclaim warranted? (related amount they owe you)
7. Evidence ready: contract / emails / WeChat / bank records?
8. Defence filing fee ($45–90) prepared?
9. Need professional input? (Quebec lawyers may prepare materials behind the scenes)
10. Settlement worth attempting? (within the defence window is most leverage)

8. Common Defendant Mistakes

• Mistake 1: Ignoring the claim — assuming “if I don’t respond, it’ll go away” = automatic loss.
• Mistake 2: Submitting only “I disagree” — must respond paragraph-by-paragraph with reasons.
• Mistake 3: Missing the counterclaim — splitting into two cases costs an extra filing fee + a year.
• Mistake 4: Delaying the set-aside motion — past 6 months becomes very hard.
• Mistake 5: Assuming leaving Canada provides immunity — international enforcement is increasingly viable (China has begun recognizing select foreign judgments since 2022–2025).