Liquidated Damages on Default Judgment - The Test
Distinctive by Design v. 1226132 Ontario Inc., 2023 ONSC 4876
Justice Papageorgiou ruled in favour of the Plaintiff in this default judgment Motion after carrying out an assessment of the evidence in support of the liquidated damages claim. The defendant did not defend the action and accordingly, the Plaintiff was awarded some $153,000.00 as claimed.
Among other things, however, Justice Papageorgiou also emphasized the importance of counsel/parties of bringing forward affidavit evidence of the liquidated damages claim, with supporting documentation, filed alongside the Motion for Default Judgment. He emphasized that litigants must ensure to not waste valuable court resources with missing documentation in support of the relief that they are being granted.
Take aways: Liquidated damages claims require an assessment by the court; the damages claimed will not be granted without proper affidavit evidence and supporting documentation. These documents must accompany the Motion Record for a Default Judgment Motion. Conversely, unliquidated damages may be approved, on their face, without the further need for assessment by the Court.
Between Justice Papageorgiou, Justice Edwards, and Justice Chang, I’ve been observing that the judiciary is re-educating, or reminding the Bar of their obligations and the necessity to ensure that all applicable and mandatory forms, documents and evidence accompany court materials to substantiate the basis upon which the litigant seeks relief. I have also observed that the bench is continuously reminding counsel of the protocols and rules surrounding Caselines, document production, filing, and preparation for use at hearings and trials. Counsel should review these protocols and ensure to follow them, staying continuously up to date with the courts mandated directives surrounding virtual hearings.
For more on Caselines and proper protocol, please review this publication by the Ontario Superior Court on Caselines. https://www.ontariocourts.ca/scj/caselines/cl-guide/#_Toc131601713