PEI Small Claims Default Judgment: What Happens If the Defendant Doesn't Respond

You filed your claim, served the defendant, and filed the Affidavit of Service. If the defendant misses the response deadline, you can ask the clerk to note them in default. The judgment steps depend on whether the amount claimed is a liquidated debt or damages that need assessment.

The 20- or 40-Day Response Window

After being served with a Statement of Claim (Form 7A), the defendant has 20 days to file a Statement of Defence (Form 9A) if served within PEI, or 40 days if served outside PEI. The count starts from the date of service, not the date of filing.

If the defendant believes you owe them money, they can file a counterclaim (Form 10A) within 20 days after filing their Statement of Defence. If no defence is filed by the response deadline, you can ask the clerk to issue an Order Noting Defendant in Default (Form 11C). Once noted in default, the defendant cannot participate in later proceedings without the court's leave.

What Default Judgment Means

After the defendant is noted in default, a liquidated debt claim can proceed to default judgment based on the filed documents. Unliquidated damages require a written assessment reviewed by a judge or prothonotary.

For liquidated claims (a specific dollar amount — unpaid invoices, loans, or non-residential deposits), the clerk can calculate the judgment amount directly from your filed documents. Under Rule 11.02(1), if you included a demand for pre-judgment interest in your Form 7A, the clerk adds the interest to the principal when entering the default judgment.

For unliquidated claims (damages that need assessment — property damage, defective goods, cost of repairs), file a Notice of Motion (Form 15A) and Supporting Affidavit (Form 15B) for a written assessment of damages. A judge or prothonotary reviews the amount.

How to Request Default Judgment

After the applicable 20-day or 40-day response period expires with no defence filed:

1. Confirm with the registry that no Form 9A was filed
2. File Form 8B (Affidavit of Service) and request an Order Noting Defendant in Default (Form 11C). If the defendant was served outside PEI, also file Form 11A (Affidavit of Jurisdiction).
3. For a liquidated debt, request default judgment under Rule 11.02. For unliquidated damages, file Forms 15A and 15B for an assessment.
4. Once judgment is entered, serve Form 11B (Notice of Default Judgment) on all named parties.

If claiming pre-judgment interest on a liquidated debt, include the calculation and demand for interest in your Form 7A. The clerk may include it when signing default judgment under Rule 11.02.

Can Default Judgment Be Set Aside?

Yes. The defendant can apply to the court to set aside a default judgment. The court considers whether they have a satisfactory explanation for the default, acted promptly after learning of the judgment, and have an arguable defence on the merits.

If the default is set aside, the case proceeds as though the defence had been filed on time — the defendant files their Form 9A, and the matter moves toward a hearing.

After Default Judgment

A default judgment is a real judgment with the same enforcement power as one obtained after a hearing. If the defendant does not pay, you can pursue garnishment of wages or bank accounts, and execution orders against property.

The PEI Small Claims Filing Guide covers the default judgment process, including the interest calculation formula and enforcement steps.

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