How to Respond After Missing the 30-Day Deadline in New Brunswick Small Claims Court

If you missed the 30-day deadline to file your Form 2 Response in New Brunswick's Small Claims Court, the situation is serious but it is not necessarily over. If judgment has not yet been entered, section 9 of N.B. Reg. 2012-103 allows a late Response to be filed before judgment. If the claimant requests judgment using Form 6 and a default or interim judgment is entered, N.B. Reg. 2012-103 provides a formal process to apply to set it aside if you show a valid reason for the default and an arguable defence on the merits.

The process requires an application package, not just Form 8: file Form 23, a sworn or affirmed Form 8 Affidavit to Set Aside Default or Interim Judgment, and a completed proposed Form 2 Response attached as an exhibit. The court grants the set-aside only if both parts of the test are met.

What Happens When You Miss the Deadline

Default is not automatic when the 30 calendar days pass. A late Response can still be filed before judgment is entered. If the claimant requests judgment first, the next steps depend on the claim:

1. The claimant may file a Form 6 Request for Judgment. This asks the court to enter judgment because no response was filed within the statutory period.
2. The court enters a default or interim judgment. For debt, fixed-sum, or personal-property claims, the clerk can enter a default judgment without a hearing. For unliquidated damages, the clerk enters an interim judgment and the court schedules an assessment hearing to determine the amount.
3. The claimant can pursue enforcement. Once judgment is entered, the claimant may use the prescribed enforcement process through Sheriff Services.

The critical point: a default judgment is a real judgment. It is not a placeholder or a warning. If the claimant has already obtained one, you are dealing with an active court order.

The Set-Aside Process: Form 8

Form 8 is an Affidavit to Set Aside Default or Interim Judgment. It is sworn or affirmed by the defendant and forms part of the application package the court uses to decide whether to reopen the case.

The court applies a two-part test:

Part 1 — Valid reason for the default. You must explain why you did not file your Form 2 within 30 days. Examples of a valid reason include not receiving the claim, illness, or an unavoidable mistake. "I did not think it was important" or "I was too busy" is generally not enough on its own.

Part 2 — Arguable defence on the merits. You must show that you have a real defence — not that you will definitely win, but that if the case went to a hearing, you would have something legitimate to argue. If you owe the exact amount claimed and have no dispute about the facts, a set-aside is unlikely to succeed because there would be nothing to hear at trial.

Both parts must be satisfied. A perfect excuse with no defence fails. A strong defence with no excuse for the delay also fails.

The Timeline and Service Rules

After filing the Form 23 application, Form 8 affidavit, and proposed Form 2 Response:

• You must serve the complete application package on all other parties at least 10 clear days before the application hearing, under section 23(2) of N.B. Reg. 2012-103.
• The court schedules a hearing on the set-aside application. Both parties attend.
• If the court grants the set-aside, the judgment is set aside and the court orders a full trial on the merits.
• If the court denies the set-aside, the default judgment stands and the claimant can continue enforcement.

What to Include in Your Form 8 Affidavit

The affidavit needs to be specific and sworn. Vague statements will not satisfy the two-part test. Include:

• The exact date you were served (or when you first learned of the claim if service was defective)
• Why you did not respond within 30 days — specific facts, not just "I was busy"
• A summary of your defence — what you would argue at a hearing if the case were reopened
• Any supporting documents — for example, evidence supporting non-receipt, illness, or an unavoidable mistake

What a Response Guide Covers That Free Resources Do Not

The court's website confirms that Form 8 exists. PLEIS-NB provides a fillable version. Neither one explains the two-part test in practical terms, gives examples of what courts consider a reasonable excuse, or walks you through drafting the affidavit.

The Responding to a Small Claim in New Brunswick guide includes a full chapter on default judgment recovery: the two-part test with worked examples, step-by-step application guidance, the rule to serve the complete package at least 10 clear days before the hearing, and what happens at the set-aside hearing. It also covers the rest of the response process.

Who This Is For

• Defendants who were served with a Form 1 Claim and missed the 30-day response deadline
• Anyone who discovered a default judgment has been entered against them
• Defendants who were improperly served and only learned of the claim after the deadline passed
• People who responded late and want to understand whether the set-aside process applies to their situation

Who This Is NOT For

• Defendants who are still within their 30-day window — if your deadline has not passed, file your Form 2 now and skip the set-aside process entirely
• Defendants who owe the full amount claimed with no factual dispute — a set-aside requires an arguable defence on the merits
• Anyone dealing with a judgment from a court other than the Small Claims Court of New Brunswick (the process differs in the Court of King's Bench)

Frequently Asked Questions

How long do I have to file a Form 8 after a default judgment?

Apply promptly once you learn of the judgment. The complete Form 23, Form 8, and proposed Form 2 package must be served on all other parties at least 10 clear days before the application hearing.

Can I file a Form 8 if I knew about the claim but just did not respond?

The two-part test still applies: you need a valid reason for the default and an arguable defence. Examples of a valid reason include not receiving the claim, illness, or an unavoidable mistake. A bare choice not to respond does not establish those requirements; get advice about how the test applies to your facts.

What happens to the default judgment while my Form 8 is being considered?

The default judgment remains in effect until the court formally sets it aside, and filing the application does not automatically stay enforcement. If enforcement is underway, include a request for an interim stay in your Form 23 application. Serve the complete application package on all other parties at least 10 clear days before the hearing.

Do I need a lawyer for a Form 8 application?

No. The set-aside process in Small Claims Court follows the same informal procedure as the rest of the court. You appear before a hearing officer, explain the circumstances, and present your affidavit. A step-by-step guide that covers the two-part test and the drafting requirements is enough for most defendants to handle this on their own.

See more New Brunswick guides →