Motion for Default Judgment Must Be Supported by Affidavit Evidence

The only decision patent decision released this week by the Federal Courts was Monsanto Canada Inc v Verdegem 2013 FC 50. I had not intended to blog on it, as it is procedural, and so brief that it would be as fast to read the decision as to read this blog post. But since nothing else of interest was released, I will simply note that Verdegem was a motion for default judgment, which, under Rule 210(3) “shall be supported by affidavit evidence.” The plaintiffs did not provide any affidavit evidence directed to the substance of the claim. However, they had served a Request to Admit under Rule 255, which had not been answered. The plaintiffs argued that the unanswered Request to Admit sufficiently supported the allegations in the Statement of Claim even in the absence of an affidavit. Hughes J disagreed. He held that “such a Request cannot be a substitute for affidavit evidence required on a motion for default judgment.” Accordingly, he dismissed the motion for default judgment “without prejudice to a further motion based on proper affidavit evidence.”