How to Set Aside a Default Judgment in Nunavut Small Claims Court

A default judgment means the claimant won — not because they proved their case, but because you didn't file your Reply (Form 2) within the 30-day deadline. Now the court has issued a Certificate of Judgment (Form 11B), and the claimant can enforce it through wage garnishment, bank seizure, or property seizure.

It's not necessarily permanent. Nunavut's Small Claims Rules allow you to apply to set aside a default judgment, but you'll need to act quickly and meet a specific legal test.

File a Notice of Motion (Form 9)

The procedure starts with Form 9 — a Notice of Motion asking the court to set aside the default. You'll also need to file a sworn Affidavit supporting your motion. The filing fee for a Notice of Motion is between $25 and $50.

Both documents go to the Civil Registry of the Nunavut Court of Justice in Iqaluit. You must also serve the claimant with copies.

The Two-Part Test

The court applies a two-part test when deciding whether to set aside a default judgment:

1. Reasonable Excuse. You need a satisfactory explanation for why you didn't file your Reply on time. Examples that courts may accept: a medical emergency that physically prevented you from responding, severe weather disruption that cut off mail and communication, or genuine non-receipt of the served papers. What doesn't work: being busy, forgetting, or miscalculating the deadline. In Swoboda v. Government of Nunavut, the court refused to set aside a default caused by the government's own legal team miscalculating their deadline by two weeks.

2. Arguable Defence. You must show that you have a real defence to the claim — not a guaranteed winner, but a case with enough merit that it deserves to be heard. If the claimant's claim is clearly valid and you have no factual basis to dispute it, the court won't reopen the case just because you missed the deadline.

You need to satisfy both parts. A strong excuse with no defence, or a strong defence with no excuse, will likely fail.

Your Affidavit Matters

The affidavit is where you present the facts. It's a sworn statement — you sign it under oath or affirmation, usually before a Commissioner of Oaths or Notary. Cover three things:

• What happened that prevented you from filing on time (the specific circumstances, not vague generalities)
• When you learned about the default judgment
• The substance of your defence (the key facts showing you have a real argument against the claim)

Be specific. "I was in the hospital" is stronger than "I had health issues." "The invoice was already paid on June 15 — here is the bank transfer receipt" is stronger than "I believe I don't owe this money."

Filing Doesn't Stop Enforcement

This catches people off guard: filing Form 9 does not automatically stop the claimant from enforcing the judgment. If they've already started garnishment or seizure proceedings, those continue unless you specifically request an interim Stay of Enforcement in your Notice of Motion.

Include this request in the motion itself. The court may grant a stay while your application is pending, but only if you ask for one.

Timeline and Logistics

File your set-aside motion within 30 days of learning about the default judgment. Delay works against you: the longer you wait, the harder it becomes to argue that your excuse was reasonable.

File as soon as you learn of the default. For remote communities, the email filing route (signed PDF to the registry) is usually fastest. Follow up to confirm the registry received and stamped your documents.

Our Nunavut Small Claims Response Guide includes a step-by-step set-aside checklist covering Form 9 preparation, the affidavit structure, and how to request a stay of enforcement.

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