The Affidavit of Service That Isn't True

The test. Under the Small Claims Rules, the court may set aside or vary a default judgment on such terms as are just. The defendant conventionally must show:

1. A reasonable explanation for the default - not necessarily a compelling one, but one the court accepts.
2. An arguable defence on the merits - the threshold is low; it is not a mini-trial.

Promptness in moving once the judgment is discovered is also weighed.

Application.

• Explanation: he swears he never received the claim. That explanation is corroborated by your own investigation: the service address was the job site, the unit had been re-let, and the person served was a tenant. Personal service on the defendant did not occur, and no order for substituted service was obtained.
• Arguable defence: the foreman's text thread about unfinished drywall supports a defence of incomplete or deficient work and a corresponding set-off or counterclaim. That is more than enough at this stage.
• Terms: the court frequently sets aside on terms - for example, that the defendant file a defence within a fixed period, pay the costs thrown away, or pay a sum into court.

Bottom line: the judgment will very likely be set aside, and the costs of the motion will very likely follow the event. Plan the file on that assumption rather than resisting a motion you are likely to lose.

The legal position. A default judgment is not automatically stayed by a motion to set it aside, so enforcement is technically available. But:

• The court has express power to stay enforcement and commonly exercises it once a set-aside motion is filed, particularly where the service is defective.
• Proceeding to garnishment and then losing the motion exposes the client to costs, to a claim for wrongful garnishment, and to the practical problem of unwinding payments already made by the employer.
• Wages are not fully exposed to execution; statutory exemptions apply, and the garnishee (the employer) must be served and given time to respond. A joint bank account raises a third-party ownership issue that the bank can and often does dispute.

What you do.

• Put the advice in writing: enforcement is available in principle, the realistic risk is a stay plus costs, and the cheaper path is a consent order setting the judgment aside on terms with a timetable for the defence.
• Obtain written instructions either way. You may act on instructions to enforce so long as the client is informed and the enforcement is lawful.
• Do not prepare or file any material that relies on the affidavit of service as an accurate account of service. That is the hard line, and it is dealt with in the next question.

You must correct the record, and you must do it now.

A licensee must not knowingly mislead the court, must not assist a client to do so, and must be candid in all communications with the tribunal. The affidavit of service is before the court; the court and the defendant are entitled to know that it is wrong on a material point.

Steps:

1. Notify the client in writing that the court will be told the service was defective and that the judgment was obtained on a false premise. This is not a matter on which the client gets a veto.
2. Contact the process server to establish what happened and whether the affidavit was sworn carelessly or falsely. Preserve the correspondence.
3. Notify the court and the defendant's representative promptly - either by letter or at the outset of the motion - that you do not rely on the affidavit of service and do not oppose the set-aside on the ground of service.
4. Consider whether other steps are required. Swearing a false affidavit is a serious matter; the client is not directly responsible for the server's conduct, but the professional obligation to the court is not discharged by silence.

If the client instructs you to argue that service was valid, you must decline and, if the instruction persists, withdraw. You cannot advance a position you know to be false merely because it benefits the client.