Assessment Hearing is one process if a Defendant fails to serve a Defence. The other process is by way of Default Judgment. The type or basis of the Claim will determine which process is used.

A Court Clerk signs a Default Judgment only if the Claim is for damages that all parties have previously agreed on liability and amount. If this is your type of matter, click here. Examples of these cases are:

  • loan/promissory note/IOU;
  • unpaid invoice for services rendered under contract;
  • bounced cheque.

ASSESSMENT HEARINGS

A Deputy Judge must assess the amount for the damages if the parties have not previously agreed on liability and an amount. Examples of these cases are:

  • defamation;
  • non-disclosed property damage found only after purchasing the property;
  • personal injury, etc.

Preparation:

The Plaintiff requests the Assessment Hearing by filing the required form and paying the $290 filing fee. Assessment Hearings are heard approximately one to two months after filing the request.

An Assessment Hearing is a one-sided Trial. The Defendant is not in attendance. There is never a guaranteed outcome for the Assessment Hearing. The Plaintiff still has the burden of proof.

The Plaintiff’s proof is a sworn Affidavit prepared specifically for the Assessment Hearing. The process and requirements are:

  • Miller Paralegal Services will prepare the Affidavit materials and send them to you for review
  • amendments are made until you confirm that the Affidavit is true, accurate and complete
  • you will be placed under oath and sign the Affidavit. Swearing an Affidavit is the same as being placed under oath in Court. It carries the same penalties of perjury.
  • due to COVID-19 protocols, this will require a meeting on Zoom as Miller Paralegal Services must see you sign the document
  • you will need the ability to print, scan and return the document via email.

Attendance:

Assessment Hearings are being conducted on the Zoom platform due to COVID-19 restrictions.  Please review Zoom Protocols and Etiquette in Small Claims Court prior to the date. Please address any concerns you have using that platform.  

Assessment Hearings usually commence at 10:00 a.m. and go until 4:30 – 5:00 pm. You may not be heard on that date if there are more matters on the docket. Each Assessment Hearing is approximately one hour of actual time before the Deputy Judge.  More complex matters will require more time.

When your matter is called, the Deputy Judge will review the Affidavit evidence. If questions remain, we may make some submissions on your behalf or you may be called upon to give oral testimony. You must be available on Zoom to provide any additional testimony, if necessary.

Next is submissions on costs that should be added to the Judgment. “Costs” are ~15 percent of the amount of the Judgment plus disbursement costs, including filing fees. For more on costs considerations, click here.

The Deputy Judge may immediately announce their ruling for Judgment and costs. For more complex cases, the Deputy Judge may indicate that there will be a written decision issued at a later date. If a written decision is rendered, it is usually received within 90 days of the Hearing.

After the proceeding:

Judgment obtained by way of Assessment Hearing is not the end of a proceeding.

The role of the Deputy Judge is to make a determination that person A owes person B and awards Judgment of $X including costs. The Court does not pay person B that amount. If person A does not pay the Judgment, person B may have to take steps to enforce that Judgment.

A Defendant may later file a Motion to set aside a Judgment obtained by way of Assessment Hearing.  In doing so, the Defendant seeks permission of the Court to file their Defence in order to dispute the Claim and to “have their day in Court”.  There could be additional costs (legal fees) to the Plaintiff if they wish to fight that Motion but the Court may order the Defendant to pay some or all of those costs.