Because of a snow storm I was unable to go to the Court and a judgment by default was rendered against me: Help !

Did you know that if a judgment was rendered against you in your absence, you may be able to ask for a revocation of judgment?

There are two (2) types of judgment by default : the judgment by default to appear and the judgment by default to plead. The difference between the two (2) types of judgment is the moment in the legal proceedings when your absence is reported.

The judgment by default to appear is rendered when you do not show up at the Court on the day written in your notice of presentation. Most of the time, you receive the notice of presentation when you are served a motion. When you do not show up in Court on the day written on that notice of presentation, the Court reports your default and the Judge can hear the proof of the other party. The Judge usually grants the motion of the other party right away since you are not present to speak your arguments.

The judgment by default to plead is rendered when you do not show up in Court on the day of the hearing. In other words, you showed up in Court on the day written on the notice of presentation, a day for the hearing have been fixed, and you did not show up on this day of hearing. We are further in the legal proceedings. The consequences are the same than for a judgment by default to appear : a judgment is generally rendered right away in favor of the party that is present.

A party condemned by default to appear or to plead may, if he was prevented from filing his defence by surprise, by fraud or by any other reason considered sufficient, request that the judgment be revoked and that the action be dismissed [1]. To do so, the Motion in revocation has to be served to all the parties in the record with the notice of presentation. Depending of your situation, you will have to filed your motion in Court within fifteen (15) days when you acquired knowledge of the judgment, when the cause preventing the production of the defence was removed, when you acquired knowledge of the new evidence, of the falsify of the document or the fraud of the opposite party, when the conclusive document was discovered, or when the judgment was rendered disavowing the unauthorized act [2].

You shall know that the time limit of fifteen (15) days is peremptory, in other words you have to be in that delay. However, if you show to the Court that it was impossible for you to act sooner, the Court could relieve you from the consequences of your default if not more than six (6) months have elapsed since judgment.

This situation happened to you? Feel free to contact us for more information.

Written by Me Marie-Josée Gingras, Attorney

[1] Article 482 Code de procédure civile

2] Article 484 Code de procédure civile