Episode 4: Motions

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Welcome everyone to the Ontario Small Claims Court Podcast. I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

In this podcast we are going to talk about bringing Motions to the Small Claims Court.

What is a Motion? This is a mini-hearing that asks the court to do something. That something usually means asking for permission from the court and, in turn, the court gives an order. Motions can be put into three general categories: one category is to fix a problem that has come up during the case; another category is to ask the court for help with the best solution for a problem; and the last category is to change an order that has already been made.

The designations of Plaintiffs and Defendants are temporarily put aside during a motion. The party who brings a motion becomes either “the moving party” or “the applicant”. The party who receives and has to answer the motion is known as the “respondent”.

Form 15A is the Notice of Motion and Supporting Affidavit. The first page is easy to fill out because you are merely copying the information that has appeared on your Plaintiff’s Claim, Defence, or Defendant’s Claim. The claim number that has already been assigned to your case is also used again here. This helps the court keep track of all documents relating to the matter.

On Page 2 of the form, at the very top there is a section that states in bold letters, “This court will hear a motion, blank, blank, blank, or as soon as possible after that time, at blank.” This part, you will have to go to either the small claims court clerk or the court trial co-ordinator to get a date and time for your motion. You have to do this before serving the Notice of Motion and before filing the motion with the court after service.

When you get the date for the hearing, you have to be aware that there are deadlines that have to be met, which means that the earliest that you can serve and file a motion would be 11 days. That’s at least seven days before the motion hearing date to serve the notice of motion and supporting affidavit, and at least 3 days before the hearing date to file proof of service along with the Notice of motion and supporting affidavit. That means that you go to the court clerk’s office, get a motion hearing date, fill out the appropriate information on Page 2, then have the supporting affidavit sworn by a Commissioner for Taking Affidavits, then you are going back to the court clerk’s office to file the motion and proof of service on pretty much all on the same day. It can be done, but it makes you look petty in the scheme of things. Therefore, I recommend that you should leave at least two weeks from the motion hearing date to give you time to serve all of the other parties that need to be served. Essentially, that’s one week. Then you have a few days grace to go to the small claims court clerk and wait around in uncomfortable furniture to file your motion and affidavits of service.

Under the date set for the motion hearing, there are a number of tick-boxes for you to consider and explain to the deputy judge what the motion is about. These tick-boxes are the most common motions heard by the Small Claims Court.

The first one is requesting the court’s permission to extend time or to shorten time. This is usually the case for serving documents such as a plaintiff’s claim or a defence when they are difficulties in serving the documents. Motions to shorten time are usually found in motions and applications under the Repair and Storage Liens Act. There is usually some emergency where if the Court doesn’t get to hear the matter right away, the applicant would face some dire consequence, like losing their contents in a storage locker.

The next tick-box is a motion to set aside default judgment and noting in default. This is a Defence motion when the defendant was not served with a Plaintiff’s Claim, or received notice of claim after the date to file a defence has passed. The Plaintiff has already noted the Defendant in default and got a default judgment. In these motions, you will have to explain the circumstances why you didn’t respond to the Plaintiff’s Claim in time and show that you do have a defence. You will need to include a draft defence to show to the court what your defence would have been, had you not been found in default. This draft defence would be an exhibit in your affidavit. If you were out of the country when the Plaintiff’s Claim was served and you didn’t have notice until you returned, you would include any travel itinerary or other proof that you were out of the country at the time of service of the Plaintiff’s Claim and make them exhibits in your affidavit.

The next tick-box is essentially the same as the previous one. This occurs when a noting in default has taken place but a default judgment has not been rendered. This also happens in cases where there are cross-claims or counter-claims. Because the outcome of the Plaintiff’s Claim and Defendant’s Claim are dependent upon the same set of facts, you cannot get a default judgment in these cases, but you can note the defendants who do not respond to your claim in default. So, what does this really mean? I mean, once the facts are sorted out by the deputy judge, only then can there be an assessment of all the defendants as to their liability, if there is any liability to be had.

The next tick-box is permission to file a Defence. This would go in concert with the motion to extend time.

The tick-box after that is the request to set aside an order dismissing a claim as abandoned. This could happen when you don’t proceed with an action such as filing a plaintiff’s claim but not serving the claim within the six month window that you have. There could be a variety of reasons why you need to make this motion, including the fact that you are unable, for some reason to properly serve the intended defendant.

The next to last tick-box is a motion to request to terminate a garnishment or withdraw a writ. This is primarily a judgment debtor’s motion meant to assist these people from creditors claiming more money than what is owed in a judgment. When a judgment is satisfied, the creditor is usually tasked with the job of notifying the court of that new development. Sometimes, the creditor doesn’t do that, or forgets to do it because some garnishments and writs last for six years. The withdrawal of writs scenario can happen when a judgment creditor, puts a Writ of Seizure and Sale on Land on the judgment debtor’s house. The judgment debtor pays off the judgment, but when they go to sell the house, the writ appears in the title search and everyone is going to ask a lot of embarrassing questions about why that is. So, as part of your motion, your supporting affidavit will have information that you have paid the judgment.

The last box is marked “Other.” There are many other kinds of motions that could be had in Small Claims Court.

One is called substituted service. This is a motion under Rule 8.04 and is granted only in exceptional cases. You will also have to consider whether you need to extend time for either service or automatic dismissal. These types of motions have to be supported by affidavits describing what methods of service that you have tried, but were unable to carry out. You will have to satisfy the motion judge that the other types of service are impractical for your situation. Within your motion, you will need to suggest a remedy. For example, you could ask to serve a close relative of the party who has regular contact with them. You could ask to serve the party in Facebook, or by e-mail, if you know that they would receive it despite all of your other attempts to serve the documents in question. If you simply don’t know where they are any more, then you will have to do some more digging, like hiring a private investigator or a skip tracer. Otherwise, you might have to consider abandoning your claim.

Another type of motion to bring in Small Claims Court is a motion to amend a claim or a defence less than 30 days before trial. This is a motion under Rule 12.01. You will have to have a good reason for doing so in your supporting affidavit.

A third type of motion is a motion to strike or documents or parts of documents under Rule 12.02. There are specific reasons for which this motion can be made. It must be because there is no reasonable cause of action or defence. Another reason could be that the document may delay or make it difficult to have a fair trial. The third reason may be that the document or part of the document is inflammatory, a waste of time, a nuisance, or an abuse of the court’s process. “A waste of time” includes a conclusion that there is no reasonable hope of success at trial. Now, the court could order that the proceeding is stayed (meaning stopped in its tracks) pending an amendment of the document, claim, or defence.

A fourth type of motion is a motion for judgment in the terms of an accepted offer when the party fails to comply with it. This happens when a party reneges on a settlement deal. This becomes a motion under Rule 14.06. You can come to the court and ask that the court issue a judgment in the terms of the accepted offer or continue the proceeding as if there have been no offer to settle. If it becomes a judgment based upon the offer, then you can go ahead and enforce that judgment through court measures such as garnishment and writs of seizure and sale of property. If the matter continues, then you will be having a trial in which you will have to prove your case or defend the action. In your affidavit, you can explain how the parties came to terms outside of court, and further explain how it all fell apart.

A fifth kind of motion is a motion for a new trial. This is a very limited kind of appeal. This motion is based upon rule 17.04. The motion must be brought within 30 days of the final order. The moving party must also show, in addition to the supporting affidavit, proof of a request that a transcript of the proceeding was ordered that has the reasons for judgment and any other portion of the proceeding that is relevant. If the transcript is available, that transcript must be served at least three days before the hearing date on all of the parties served with a notice of trial and be filed with proof of service.

There are two conditions that you must meet to get a new trial.
1. There was a math mistake in calculating damages.
2. There was evidence that was not available to you at the time of the original trial and could not have reasonably been expected to have been available at that time.
If one of those two conditions is met, then the motion judge can grant a new trial, give a judgment that ought to have been given at trial, or dismiss the motion.

A sixth kind of motion is an order directing the delivery of personal property referred to in a writ if that property cannot be found or taken. This is purely a judgment creditor’s motion. Let’s say that the property being referred to is a boat. That boat is being hidden or lost or destroyed in some way. The person who has the writ can come back to the court and say the boat is unrecoverable; can I take something else instead, like that ATV over there? This is one of those motions in where it is a good idea to already have had an examination with the judgment debtor that lists all of his assets. You would also have to take a look at the Execution Act to see what personal property is protected by the legislation.

A seventh kind of motion is strictly a judgment debtor’s motion. If the judgment debtor has two or more unsatisfied orders that are outstanding, the debtor can bring a motion to the court to consolidate those orders into one payment. This is a motion brought under rule 20.09. The debtor has to have the following in the affidavit: the names and addresses of the creditors who have an order against you; the amount owed to each creditor; the total amount of income from all sources and identify each one of them; and the debtor’s current financial obligation (like rent or a mortgage). This notice of motion must be served on all creditors at least seven days before the hearing date. If successful, the judgment debtor will be paying all creditors simultaneously, but the payments cannot be more than the garnishment limit established in the Wages Act. Consolidation orders have the additional benefit that creditors cannot enforce their judgments in any other way except for a writ for seizure and sale of land. But judgment debtors have responsibilities as well: the consolidation order will automatically terminate if the debtor fails to make a payment for 21 days. In addition, the debtor will not be able to make the same motion again for one year from the date of the termination.

So, what I have just described for you are the types of motions that one can make in the Small Claims Court. I am now going to describe three kinds of motions you cannot do. This section is kind of technical, but I want to talk about it because sometimes crafty representatives on the other side take advantage of self-represented parties, and you need to be able to recognize an inappropriate motion. This is also a reminder that this court has its own rules as to how things are done.

You can’t do a motion for summary judgment. The Ontario Court of Appeal made a ruling in 2010 in a case called Van de Vrande v. Butkowski. In their decision, the Court of Appeal said that there is no such thing as a summary judgment motion. What often happens, and with lawyers especially, is that they will try to use Rule 1.03(2). Let me read it for you:

“If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts Of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.”

What lawyers often do is try to import Rule 20 and 21 from big pants court into the Small Claims Court. The lawyers argue that there is a ‘gap in the legislation’. The Court of Appeal has said that there is no gap; it is deliberately excluded from the Rules of the Small Claims Court. You can’t make an analogy to something in one set of rules when the other set of rules doesn’t address it.

You can’t make a motion for document discovery, especially from third parties. Discovery is the provision of documents that you intend to rely upon in evidence during trial. There are limited avenues in which these documents are exchanged. In Small Claims Court, most documents are provided for in the Plaintiff’s Claim, the Defence, and in the Defendant’s Claim. Then there is Rule 13.03(2). All parties, at least 14 days before the date of the settlement conference, must provide a copy of any document, including expert reports not attached to the party’s claim or defence, and a copy of a witness list with names, addresses, and contact information for each witness.

There is one last opportunity to share documents. That’s Rule 13.05. A judge at a settlement conference can order the production of documents between the parties. That’s it. It is the only exception to the general rule on the reliance of evidence. These settlement conference orders come from the point of view of relevance, meaning that in order to prove your case, these documents must be produced. This usually happens with cases that need expert reports or opinions.

There are times when important documents are held by third parties. But in Small Claims Court, there is no jurisdiction for compelling third parties to provide information by way of motion. As always, there is one exception. You will have to ask for a Summons to a Witness from the Small Claims Court Clerk. You will have to know the name of the witness you intend to call and have ready for payment in advance witness fees. Witness fees are $6 per day and 30 cents per kilometer travel allowance from the witness’ home to court. If you live in Northern Ontario, that travel allowance goes up to 30.5 cents per kilometer. If you are calling a lawyer, doctor, veterinarian, or engineer, the witness fee is $15 per day.

Summonses must be personally served and there is no other method allowed. In the summons itself, there is a section in which you can describe what documents are to be brought by the witness that they have in their possession and control. You will have to be specific. Those documents will only appear on the trial date. If the witness fails to appear, you can have the court make the witness attend court. If they fail to bring the documents requested, you can make the witness bring them the next time.

Lastly, you cannot make a motion for interim possession. Welcome to another grey area of the rules of the Small Claims Court. The Small Claims Court has jurisdiction for claims up to $25,000. The Small Claims Court also has jurisdiction to return property valued up to $25,000. This motion sometimes comes up without starting a plaintiff’s claim. You do have to start an action first.

Some judges have looked at these motions and said that you can’t get a writ of delivery until you have a final judgment. Other judges have looked at section 104 of the Courts of Justice Act and “by analogy,” rule 44 of the Rules of Civil Procedure. There is no clarity from the court for this kind of motion. However, what if the Defendant was going to do something, like destroy your property before you get a decision to get it back? You might be able to get an ex parte order. This is definitely one of those “talk to your local paralegal or lawyer” moments; who better can give you advice to your specific set of facts, right?

So, we have talked about all kinds of motions and rules that these motions relate to. You now need a supporting affidavit. The supporting affidavit is kind of like a snapshot of the facts that led up to the moment you decided you need help with an issue. There is a formal style to writing an affidavit for yourself. The forms provided for the Small Claims Court help you with some of these elements, like the introductory statement. That blank space after the preamble is the scary part.

Here are the rules of thumb to writing a decent affidavit:

1. Your first paragraph should have an identification and personal knowledge statement. The judge wants to know who is giving the affidavit, how do you fit in the scheme of things (like, are you the plaintiff or defendant), and how you got this information.
2. Write in the first person subjective. In other words, try to start each fact with the pronoun “I”. “I did this” or “I did that”.
3. Number each paragraph.
4. Only have one fact per paragraph.
5. Stay in chronological order. Be as specific as possible. If it happened on September 12, 2015, state that. If it was within a few days either side of September 12, 2015, but you can’t remember the exact date, use “On or about September 12, 2015, blah, blah, blah...” If you can’t remember the specific date but you can remember the month, use “In the month of September, 2015, yadda, yadda, yadda...”
6. Do not give an opinion in an affidavit. It has no weight.
7. Keep your paragraphs short.
8. If you have information that came from another source, like your friend, your statement should be specific as to whom that person is, and that their statement to you is something that you believe to be true. If you have a lot of these paragraphs, then you should consider whether that person should be making their own affidavit.
9. Sometimes you see as a last paragraph, “I swear/affirm this affidavit in support of this motion and for no other or improper purpose.” This is optional.
10. If you have more than one page when writing your affidavit, number your pages.
11. Type your affidavit, if possible.
12. If you want to attach documents to your affidavit, then those documents should be described in the body of the affidavit and describe them as Exhibit A, B, C, and so on.
13. Tell the truth. Swearing or affirming a false affidavit can be punishable under the Criminal Code of Canada.

So, you have checked the appropriate box or stated what kind of motion you are looking for and have written your supporting affidavit. This next step is very important.

DO NOT SIGN THE AFFIDAVIT.

You are going to have to be patient and wait until you go to the courthouse or to a lawyer or paralegal to give the oath or affirmation to you. These Commissioners of Affidavits will ask you either: “Do you swear that the contents of this affidavit as subscribed by you are true, so help you God?” or “Do you solemnly affirm and declare that the contents of this affidavit as subscribed by you are true?” After giving your answer, and I’m assuming that this will be a “yes”, you will sign in the appropriate place and the Commissioner will sign and print their name in their appropriate place.

The original will eventually be filed with the court and the copies served upon all the parties.

Now, earlier in this podcast, I have described motions with notice, meaning notice served at least 7 days before the hearing date. But, I didn’t say how to serve the motion on notice. Well, you have a lot of options. Personal service is one. Alternative to personal service is another. You can serve the notice by mail; just remember to add five days to the minimum 7 days before the hearing date. You can also serve the motion notice by courier. Again, adjust your timing accordingly, because service is determined by when the receiving party signs for the envelope. Lastly, if they have a fax number, then you can serve the party by fax.

There are situations where you don’t need to notify the other side. Motions without notice, sometimes called ex parte motions, these are usually reserved for parties noted in default. They no longer have standing with the court, so you can go ahead with your motion without telling the other side.

This is when you can fill out Section B of Form 15A. This section is self-evident in how to fill it out. There are some pre-conditions that must be followed. First, the request for an assessment of damages must be for a liquidated claim, meaning the amount can be easily calculated. They owe you $1,000.00 because you have an invoice for that amount for the services you have done, or they owe you $1,000.00 because you have a repair bill that you’ve paid for. Second, the defendant must have already been found in default for not filing a defence. Third, if there is more than one defendant, all of the defendants must be in default for not filing a defence. If one of them has filed a defence, the default judgment can only happen at the end of the trial, once there has been a determination of liability. Not one moment before.

The Deputy Judge may give three kinds of orders. The deputy judge may grant your motion and you will have a final order to take to the clerk for enforcement. The deputy judge may ask for another affidavit seeking additional information. Or, the deputy judge may ask you to appear in person for an assessment hearing to give oral evidence and answer any questions that the deputy judge may have before granting judgment.

Sometimes there are emergencies that crop up, such as a writ that is still attached to a property that hasn’t been withdrawn by the other party after you’ve satisfied the judgment, and now you can’t find the other party that issued the writ. Let’s look at this second example.

In your motion, you would have to ask the court to dispense with service of the motion in addition to the request to withdraw the writ. This puts the deputy judge on notice that they will have to decide first if the situation warrants a motion without notice. If they say yes, then you can talk about the main part of your motion, which is to remove the writ of seizure and sale of land. If your ex parte motion is granted, it is then up to you to serve the motion, the supporting affidavit, and the Order itself within 5 days after the order is signed. The method of service can be by personal service, alternative to personal service, mail, courier, or by fax.

However, the party who is affected by the Order has up to thirty days to bring a motion to set aside the Order or to vary the Order. So, the motion may not end on the day you get the ex parte order signed.

Let’s say that you are served with a motion and you are not available on that date to speak to it. Can you get it adjourned? Yes, you can, but only on consent. The court may order it, but you will need to have an agent, a paralegal or a lawyer present to argue for an adjournment along with a good reason why. Otherwise, a motion is not to be adjourned for any reason. If you do get an adjournment, the party seeking the adjournment might get dinged with costs for the delay. It can happen.

The court is also pretty strict about withdrawing a motion. For a motion to be withdrawn, you have to either have the written consent of the parties, or the permission of the court.

At the end of the motion, the successful party may ask the courts for costs. These costs are limited from zero to $100.00. That’s it. Anything more, then the motion had to be so extraordinary to provoke addition costs above that $100.00 benchmark. Disbursements, however, can be added on, like photocopying and filing fees. Don’t forget that the privilege of bringing a motion to small claims court costs forty dollars.

That wraps up this podcast. Your comments and questions are always invited. There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides. There you will find the Guide to Motions and Clerk’s Orders.

Thank you for listening and I hope you join me again soon.