Form 15 – Affidavit to Set Aside a Judgement After a Hearing

Jurisdiction: Canada — New Brunswick

What is a Form 15 – Affidavit to Set Aside a Judgement After a Hearing?

Form 15 is a sworn statement you file in New Brunswick Small Claims Court to ask the court to reopen your case after a hearing has already taken place and a judgment has been issued. You are telling the court, under oath, why the judgment should be set aside and why the matter should be heard again. This is different from asking to set aside a default judgment. A default judgment happens when someone does not respond or appear. A judgment after a hearing means the adjudicator heard evidence and decided the case.

You use this affidavit to do three key things:

• Explain the specific grounds for setting aside the judgment.
• Show that you acted quickly once you learned about the judgment or the problem.
• Demonstrate that you have a real defence or claim worth hearing if the judgment is set aside.

The person who typically uses this form is the party who lost at the hearing, or who could not properly present their case for reasons beyond their control. Either a claimant or a defendant can file. For example, a defendant who could not attend because of an emergency, or a claimant who discovers reliable, material evidence that was not available at the hearing.

You would need this form if something undermined the fairness of the hearing or the reliability of the judgment. Common grounds include lack of proper notice, a serious procedural error, new evidence that could not have been obtained with reasonable diligence before the hearing, or an unforeseen event that prevented you from attending or presenting key evidence. It is not enough that you disagree with the outcome. You must show a concrete reason the judgment should be set aside and that you have a meaningful case to advance if the matter is reopened.

Typical usage scenarios

• You never received notice of the hearing date due to a proven service or address issue.
• You were hospitalized or otherwise prevented from attending despite reasonable steps.
• You discover important documents after the hearing that you could not get earlier, despite diligent efforts.
• A serious procedural issue occurred at the hearing that affected your ability to participate or respond.
• A language or accommodation need was not addressed, and you could not effectively present your case.

When you file Form 15, you ask for specific relief: set aside the judgment, schedule a new hearing, and often a temporary stay of enforcement (so the other side cannot enforce the judgment while your request is pending). The court will consider your sworn reasons, the timeline of events, and whether your underlying defence or claim appears to have merit. If the court is satisfied, it may set aside the judgment and order a fresh hearing.

When Would You Use a Form 15 – Affidavit to Set Aside a Judgement After a Hearing?

Use Form 15 when a judgment was issued after a Small Claims hearing, and you have a strong reason to ask the court to reopen the case. The assessment is practical: did something prevent a fair hearing or materially change what the adjudicator would have heard?

Consider a small business owner who missed the hearing because of a documented medical emergency. They had arranged time off and prepared documents, but a sudden hospitalization made attendance impossible, and they could not reach the court in time. They obtained proof and filed promptly after discharge. In that situation, Form 15 is the correct tool to ask the court to set aside the judgment and hear the case anew.

Or imagine a contractor who defended a claim but later finds reliable, third‑party records showing the claimant signed off on the work and acknowledged a payment plan. The contractor tried to obtain these records before the hearing but could not, despite repeated requests. When the documents surface later, the contractor uses Form 15 to ask the court to consider this material evidence that likely affects the outcome.

Tenants, landlords, tradespeople, vehicle repair shops, and consumers also use this form. A tenant might have been present at the hearing but did not have an interpreter, despite asking in advance, and could not understand key exchanges. A landlord may discover that a crucial witness was available but had been misinformed about the hearing date by a third party despite diligent planning. A consumer might learn that an expert report they ordered in good time was delayed for reasons outside their control, and the report materially contradicts the claims accepted at the hearing.

You would also use this form if you did not receive proper notice of the proceeding. For example, the claim or hearing notice was sent to an outdated address through no fault of your own, and you can show that you updated your address with the relevant parties. You learned about the judgment only when you received a demand for payment. In that case, you file Form 15 right away, explain the notice problem with proof, and ask to set aside the judgment.

The timing matters. The court expects you to act quickly once you find out about the judgment or the issue that affected the hearing. Delays must be explained with credible detail. If you wait without a good reason, your chances drop.

Legal Characteristics of the Form 15 – Affidavit to Set Aside a Judgement After a Hearing

Form 15 is a sworn affidavit. When you sign it before a Commissioner of Oaths or a Notary Public, you confirm under oath that the facts are true to the best of your knowledge and belief. This gives the document legal weight. False statements can carry serious penalties. The court relies heavily on the quality, clarity, and credibility of what you state and what you attach as evidence.

The affidavit itself does not change the judgment. It starts a process. After you file and serve it as directed, the court may schedule a hearing to decide whether to set aside the judgment. If the court grants your request, it will issue an order that sets aside the judgment and often provides next steps, such as a new hearing date or directions for exchanging documents. That order is binding and enforceable.

Courts use well‑known fairness principles to decide these applications.

The test generally looks at:

• Why you did not attend or could not present your case fully, and whether that reason was beyond your control.
• Whether you acted promptly once you knew about the judgment or the problem.
• Whether you have an arguable defence or claim with some merit.
• Whether reopening the case would prevent an injustice.

If your ground is new evidence, the court considers whether the evidence is material, could not have been obtained with reasonable diligence before the hearing, and would likely have affected the result. If your ground is a procedural issue, the court considers whether the problem was serious enough to affect fairness.

Enforceability hinges on process. You must file the affidavit correctly, swear it properly, and serve it according to the court’s directions. You should also ask for a temporary stay of enforcement if there is any risk of immediate enforcement. Filing the affidavit does not automatically stop garnishments or other collection steps. The court can order a stay while it considers your application if you ask and show a reason for it.

Finally, this is not an appeal. An appeal is about legal error and follows a different route and timeline. Form 15 asks the Small Claims Court to reopen its own decision because something prevented a fair hearing or new material information has emerged. Be clear about what you are asking and why. The court expects specific facts, not broad conclusions.

How to Fill Out a Form 15 – Affidavit to Set Aside a Judgement After a Hearing

Follow these steps to prepare, file, and support your Form 15. Work carefully and keep your explanations concrete and concise.

1) Get the correct court file details

• Find your Small Claims file number, the court location, and the full names of the parties as they appear on the claim and judgment.
• Copy the exact style of cause (e.g., “ABC Ltd. v. Jane Doe”). Consistency helps the clerk match your affidavit to the correct file.

2) Identify yourself as the deponent

• In the affidavit heading, set out your full legal name, address, and occupation.
• State your role in the case: claimant, defendant, or representative with firsthand knowledge. If you are an officer or employee signing for a business, explain your position and how you know the facts.

3) State the judgment you want set aside

• Refer to the date of the judgment, who made it, and the amount or terms.
• If you have a copy, mark it as an exhibit and label it clearly (e.g., “Exhibit A”). Attach a clean, complete copy.

4) Explain your grounds in clear, numbered paragraphs

• Write short, factual paragraphs. Use dates, names, and specifics.
• Examples of grounds you might set out:
• Lack of proper notice: Explain how you did not receive the hearing notice, what address was used, what your correct address was, and how you discovered the judgment. Attach mail records, returned mail, or other proof.
• Inability to attend for reasons beyond your control: Describe the event (e.g., sudden illness, emergency), steps you took to notify the court or the other party, and why those steps were not successful. Attach medical or travel records.
• Serious procedural issue: Describe what happened during the hearing and how it prevented you from fairly presenting your case (e.g., interpreter not provided after a timely request, or you were denied a reasonable adjournment due to an emergency).
• New material evidence: Identify the evidence, explain why it was not available with reasonable diligence before the hearing, and why it likely would have affected the outcome. Attach the documents or explain when and how you will obtain them.

5) Show that you acted promptly

• Tell the court when you first learned about the judgment or the issue.
• Explain any delay between learning of it and filing your affidavit, with reasons and dates.
• The court expects urgency. A credible timeline helps.

6) Outline your defence or claim in brief

• Provide a short, factual summary of the points you would raise if the matter is reopened. This is not the place for argument.
• Give enough detail to show there is an arguable case. For example: “I dispute the invoice because the work was incomplete, as shown by the attached inspection report and photographs.”

7) Ask for specific relief

• State exactly what you are asking the court to order. Typically, you request:
• An order setting aside the judgment;
• Directions for a new hearing or case conference; and
• A temporary stay of enforcement until your application is decided (and, if granted, until the new hearing).
• If enforcement has started (e.g., garnishment), explain the urgency and potential prejudice if no stay is granted.

8) Attach exhibits properly

• Number or letter your exhibits sequentially (Exhibit A, Exhibit B, etc.).
• Each exhibit should have a brief exhibit stamp or caption that refers to it in the affidavit (“This is Exhibit B referred to in the affidavit of [your name] sworn [date].”).
• Include only relevant, legible documents. Do not over‑attach. Quality beats quantity.

9) Draft with plain language and accuracy

• Use short sentences and stick to facts you know. If something is based on information and belief, say so and identify the source.
• Avoid speculation. Do not attack the other party’s character. Focus on the grounds and your evidence.

10) Prepare the jurat and swear the affidavit

• Do not sign until you are in front of a Commissioner of Oaths or a Notary Public. Bring identification.
• Sign each page if required, and initial corrections. The commissioner or notary completes the jurat (the section that states where, when, and before whom you swore).

11) Make copies

• Prepare at least one copy for yourself and one for each other party, plus a copy for filing. Keep a complete set with exhibits marked.

12) File with the Small Claims Court office

• File your sworn Form 15 and exhibits at the court location where the case was heard.
• Ask the clerk about any filing fees and the next procedural steps. The clerk will tell you how a hearing date will be set for your application or whether a written process will be used.

13) Serve the other party

• Serve the filed materials on every other party as directed by the court. Ask the clerk what service method is acceptable and any deadlines for service.
• Prepare proof of service (e.g., an affidavit of service) if required. The court may not hear your application without proper service.

14) Prepare for the application hearing

• Organize your exhibits and bring an extra set for the adjudicator.
• Be ready to address three points: why the judgment should be set aside, how quickly you acted, and the merits of your defence or claim.
• If you requested a stay, be ready to explain the risk of prejudice if enforcement continues.

15) Attend and follow the court’s directions

• Arrive early, dress respectfully, and speak clearly.
• If the court sets aside the judgment, follow any directions about the next hearing, disclosure of documents, and timelines.
• If the court declines, ask whether you may make any further requests or what options remain.

Practical drafting tips:

• Be specific about dates, times, and the steps you took. Specificity builds credibility.
• Keep the affidavit factual; save legal arguments for oral submissions if needed.
• If your ground is new evidence, explain your earlier efforts to obtain it. Courts expect diligence.
• If your ground is non‑attendance, attach proof showing the event was beyond your control and unforeseeable.
• If language or accessibility issues affected your hearing, detail what you requested, when, and what happened during the hearing.

Examples of strong exhibits:

• Hospital admission or discharge records tied directly to the hearing date.
• Courier or mail tracking showing misdirected or returned hearing notices.
• Written confirmation from a neutral third party who holds key records and explains why they were unavailable earlier.
• Photos, inspection reports, or technical assessments created or obtained promptly after the hearing that could not have been secured earlier with reasonable effort.

Common pitfalls to avoid:

• Saying only “I disagree with the decision.” Disagreement alone is not a ground.
• Filing late without an explanation. If you were delayed, provide a timeline and reasons.
• Attaching irrelevant material. Stick to what proves your grounds and your arguable case.
• Mixing argument with facts. Keep your affidavit factual and organized.

What happens after filing:

• The court may schedule an application hearing or give written directions.
• The other party can respond and may file their own affidavit.
• If a stay is granted, it stops enforcement temporarily. If not, enforcement may continue until the court decides your application.
• If your application succeeds, the judgment is set aside and the claim proceeds to a new hearing or as otherwise directed.
• If your application fails, the original judgment stands and remains enforceable.

Final check before you swear:

• Do all paragraphs match your exhibits?
• Are names, dates, addresses, and the file number correct?
• Are your grounds clear and supported?
• Have you asked for the orders you need, including a stay?
• Is everything truthful and complete to the best of your knowledge?

By approaching Form 15 with precision, credible evidence, and a clear timeline, you give the court what it needs to assess fairness and decide whether to reopen your case. Your goal is simple: show why the first hearing did not or could not yield a fair result, and that there is a real case to hear if the judgment is set aside.

Legal Terms You Might Encounter

• Affidavit means a written statement of facts that you swear or affirm are true. In this form, your affidavit is the core of your request. The judge will rely on what you set out in your affidavit and the exhibits you attach, so write clearly, stick to facts you can prove, and avoid opinions or arguments.
• Judgment is the formal decision the court makes after the hearing. You are asking the court to set aside that judgment so the case can be reheard or reconsidered. Always use the exact judgment date and claim number shown on the court’s records to avoid confusion.
• Set aside means to cancel or suspend the existing judgment so the court can reopen the case. You are not asking the court to decide the entire claim in your favour now. You are asking for a fresh chance to present or challenge evidence.
• Hearing is the court session where the judge heard evidence and made the judgment you want to set aside. Your affidavit should explain precisely what went wrong at that hearing or why the result is unreliable or unfair.
• Grounds are the reasons the court should grant your request. Common grounds include not having a fair chance to be heard, new evidence that could change the result, or a substantial procedural problem. In this form, state your grounds in plain language and link each ground to facts and evidence.
• Evidence is the information a judge can rely on to decide. In this form, your evidence appears as sworn statements and attached exhibits—emails, letters, receipts, photos, witness statements, or transcripts. Label each exhibit clearly and refer to it in the text.
• Deponent is the person swearing or affirming the affidavit. That is you. When you sign, you do so before a Commissioner of Oaths, Notary Public, or other authorized official who confirms your identity and that you swore or affirmed the contents.
• Commissioner of Oaths (or Notary Public) is the official who witnesses your signature on the affidavit. The form is not valid unless it is properly sworn or affirmed. Bring government-issued ID and sign only in their presence.
• Service means giving the other party a copy of what you filed so they have a fair chance to respond. After you file, you must serve the other party within the required time and keep proof of how and when you did it. Explain in your affidavit if there is urgency or risk in delaying service.
• Stay (of enforcement) is a pause on collecting or enforcing the judgment while your request is decided. If you want the court to hold off on enforcement, say that in your affidavit and explain why a stay is necessary. You may need a separate request if the form does not include a checkbox for a stay.
• Costs are amounts the court might order one party to pay for the other’s filing fees or certain expenses. When you ask to set aside a judgment, the court can award costs. If costs are a concern, address them in your affidavit.
• Claim number (or file number) is the unique number the court assigned to your case. Use it exactly as shown on court documents. It ties your affidavit to the right file and helps the clerk process your request without delay.

FAQs

Do you need a transcript from the original hearing?

It helps, but it is not always required. A transcript can show what was said, who attended, and what evidence the judge considered. If your grounds involve something that happened in the hearing (for example, you were cut off, important evidence was refused, or a clear misunderstanding occurred), a transcript or detailed notes are valuable. If you cannot obtain a transcript in time, explain that in your affidavit and provide any other reliable record, such as your notes or exhibits.

Do you have to explain why you missed the hearing?

Yes, if non-attendance is part of your grounds. Explain why you missed the hearing and why it was not your fault or was due to circumstances beyond your control. Provide documents where possible—medical notes, travel interruptions, notices sent to the wrong address, or email delivery failures. The judge will weigh whether your explanation is credible and whether it affected the fairness of the hearing.

Do you need new evidence to succeed?

Not always. New evidence can help, but you can also succeed by showing a serious procedural issue or a lack of a fair chance to be heard. If you do rely on new evidence, explain why it was not available earlier despite reasonable efforts, and why it could change the result. Attach the documents as exhibits and refer to them in the affidavit.

Do you have to request a stay to pause enforcement?

Yes, if you want the judgment paused while your request is decided. Without a stay, enforcement may continue. In your affidavit, ask for a stay and explain the risk of harm if enforcement goes ahead. Be specific—identify wages, bank accounts, or property at risk, and explain why a stay is fair.

Do you need to serve the other party after filing?

Yes. The other party is entitled to notice and a chance to respond. After you file, arrange service within the required time. Personal service is often safest. If personal service is difficult, use another permitted method and keep proof. Include details of service in your materials or file a separate proof of service if required.

Can you amend your affidavit if you discover more information?

You can usually file a new or supplementary affidavit if you discover important information. Do it as soon as possible and explain why the information was not included earlier. Serve the other party with any new materials so they have a fair chance to respond. Late filings can be refused, so do not delay.

Do you have to attend another hearing on your request?

Usually yes. The court will consider your affidavit and any response from the other party. Be ready to summarize your grounds, point to your exhibits, and answer questions from the judge. Bring copies of everything you filed and served. If you cannot attend in person for a good reason, contact the clerk early to ask about options.

Checklist: Before, During, and After the Form 15 – Affidavit to Set Aside a Judgement After a Hearing

Before signing

• Claim and judgment details
• Claim/file number exactly as on court documents.
• Full names of all parties as they appear on the claim and judgment.
• Date of the judgement and name of the adjudicator, if known.
• Grounds and facts
• Clear, numbered facts explaining why the judgment should be set aside.
• If you missed the hearing, a full explanation with dates and supporting proof.
• If relying on new evidence, a statement of why it was unavailable earlier and why it matters.
• Exhibits
• Documents proving key facts (emails, letters, notices, courier records, medical notes, receipts, photos, transcripts, witness statements).
• Each exhibit labeled (Exhibit A, B, C) and referenced in the text where relevant.
• Legible copies; translate any documents not in English or French and attach the translation along with who provided it.
• Stay request (if needed)
• A clear request to stay enforcement, with reasons and proof of harm if enforcement continues.
• Service planning
• Current addresses for all parties for service.
• A plan for how you will serve promptly after filing.
• Practical items
• Government-issued ID for swearing or affirming the affidavit.
• Payment method for any filing fees.
• Enough printed copies: one for the court, one for each party, and one for you.

During signing

• Identity and authority
• Sign only in front of a Commissioner of Oaths, Notary Public, or other authorized official.
• Bring ID and confirm your name matches the court file.
• Affidavit content
• Use first person, present facts, and avoid speculation or argument.
• Ensure dates, amounts, and names are accurate and consistent with exhibits.
• Refer to each exhibit in the paragraph where you discuss it.
• Attachments
• Initial each page of the affidavit if requested by the official.
• Have the official mark and identify exhibits properly (e.g., stamp or certificate).
• Make sure page numbers are sequential and no page is missing.
• Final review
• Confirm the relief you seek is stated (set aside the judgment; stay enforcement if requested).
• Verify your contact details and service address are current.
• Double-check the claim number on every page that requires it.

After signing

• Filing
• File the original affidavit and exhibits with the Small Claims Court where the judgment was issued.
• Pay any filing fee and keep the receipt.
• Ask the clerk about the next available date or how you will be notified of a hearing.
• Service
• Serve the filed affidavit and any scheduling notice on every other party within the required time.
• Use a permitted method of service and keep proof (affidavit of service, courier receipt, delivery confirmation, or a witness statement of personal service).
• Proof of service
• File proof of service with the court if required, before the hearing.
• Preparation for the hearing
• Prepare a brief outline of your grounds and the key exhibits you will rely on.
• Bring three sets of documents: for you, the judge, and the other party.
• Arrange for any witnesses you need and have their written statements if they cannot attend.
• Follow-up
• Track communication from the court and the other party.
• Calendar all deadlines and the hearing date.
• If circumstances change (settlement, payment, or new facts), prepare a supplementary affidavit if needed and serve it early.

 Common Mistakes to Avoid

• Don’t skip the reason you missed the hearing or why you could not present evidence.

Consequence: The judge may see no basis to reopen the case and dismiss your request. Spell out dates, times, and obstacles, and support them with documents.

• Don’t attach exhibits without explaining them in the affidavit.

Consequence: The judge may ignore documents not tied to specific facts. In your text, point to each exhibit and explain what it proves.

• Don’t assume filing alone pauses enforcement.

Consequence: Collection can continue, including wage or account enforcement. If you need a pause, ask for a stay and explain the harm if enforcement continues.

• Don’t rely on argument instead of evidence.

Consequence: The court decides on sworn facts and exhibits. Provide clear, first-hand facts. If information is second-hand, explain how you know it and attach the source document.

• Don’t serve late or to the wrong address.

Consequence: Your hearing could be adjourned or your request dismissed. Confirm the other party’s current service address and use a method you can prove.

What to Do After Filling Out the Form

File your affidavit promptly. Go to the Small Claims Court that issued the judgment and file the original, with exhibits. Pay any fee and note the file stamp date. Ask the clerk how the court will schedule your request and how you will receive notice.

Serve the other party. As soon as you file, serve a filed copy on every opposing party. Use a permitted service method and keep detailed proof. If service is difficult, document your attempts and consider personal service by someone you trust who can later swear an affidavit of service.

Request a stay if needed. If you asked for a stay of enforcement in your affidavit, be ready to speak to it at the earliest opportunity. Bring proof of potential harm, such as a pay statement if wage enforcement is expected or a bank notice if account enforcement is pending.

Prepare for the hearing. Make a concise outline:

• What you want: set aside the judgment (and a stay, if you asked for one).
• Why you want it: list your grounds in order of strength.
• What shows it: list your key exhibits with a one-line description.

Practice explaining your grounds in a few minutes, then prepare details in case the judge asks for more.

Organize your exhibits. Use tabs or clear labels: Exhibit A, B, C, and so on. Make sure each exhibit matches the reference in your affidavit. If you rely on a transcript or recording, highlight the exact page or time stamps that matter.

Line up witnesses if needed. If a witness’s evidence is important and cannot be captured by documents alone, ask them to attend. If attendance is impossible, get a signed statement. Be ready to explain why the court should accept it.

Monitor the file. Watch for a response from the other party. If you receive new materials, read them carefully and prepare a short written reply if needed. Serve any reply you plan to rely on, and be ready to explain late filings.

Consider amendments or supplements. If you discover important new facts or documents, prepare a supplementary affidavit. File and serve it as early as you can. In your opening remarks at the hearing, explain why the new information is late and why it is necessary.

Attend the hearing. Arrive early, bring identification, and have three organized copies of your materials. When called, address the judge respectfully, summarize your request, and walk through your key points. Answer questions directly and refer to exhibits by letter.

After the decision, if the court sets aside the judgment, clarify next steps—new hearing date, timelines for exchanging documents, any conditions (such as partial payment or security), and whether a stay remains in place. If the request is denied, ask the judge to confirm what happens with enforcement and costs. Note any deadlines that follow from the decision.

Keep records. Store your filed affidavit, proof of service, and the court’s decision in a safe place. Maintain a timeline of events, including dates you filed, served, and attended. Good records help if you need to respond to enforcement or prepare for the rehearing.

Stay proactive. If you reach a settlement with the other party at any point, put it in writing and file what the court requires to reflect the settlement. If you need more time to obtain a document or witness, notify the court and the other party early and explain why.