The Ontario Small Claims Court process provides for several types of court hearings and appearances. Here, we discuss one type of Small Claims Court hearings and procedural tools – motions.

Small Claims Court Motions

A motion is a procedural tool to resolve intermediate issues that are relevant to a small claims lawsuit. A motion is, in its essence, a request for the court to order something in the context of the case. The party that makes the request is the moving party. Another party is called the respondent. Typically, the motion process is as follows:

• The moving party begins the small claims motion process by preparing a notice of motion and motion materials.  Then, this party must secure a date for a motion hearing with the Small Claims Court. Finally, it must serve the motion materials on the other party.
• If the responding party chooses to do so, it files responding materials to argue the issues set out in the motion.
• Small Claims Court holds the motion hearing. The judge reviews both parties’ arguments and decides whether to make the requested order or not.

Common Types of Motions in Small Claims Court

Theoretically, a small claims court motion can be about anything. A party can request any order. In practice, motion hearings are generally limited to several types of issues.  Some of them are more common than others.

Adjournment

Motion to adjourn a Small Claims settlement conference or trial. This is a motion where a party requests a court order to reschedule the scheduled settlement conference or trial to another date. Generally, this motion may be necessary when:

• The other side doesn’t agree to an adjournment voluntarily, or
• The parties adjourned the matter on consent too many times. If this the case, the court rules do not allow further adjournment without the court’s permission.

motion to set a noting in default and default judgment aside

This is probably the most common motion in the Small Claims Court. A default judgment is a judgment that the plaintiff receives against the defendant without the defendant’s involvement. Usually, this could happen because the defendant did not file a defence with the court or did not appear for a Small Claims Court settlement conference or trial. If the defendant had a good reason for failing to file a defence or failing to appear, he or she may file a motion and ask the court to “cancel” the default judgment.   The Small Claims Court can also allow the defendant to file her/his defence.

motion for production of documents

This type of motion is when one of the parties to a small claims court matter believes that the other party must provide some documents relevant to the matter. The court process is adversarial. It means that you can’t usually oblige the other party to provide documents helpful to your case. However, in some cases, the court may issue an order for the production of documents. If this is something you are considering, it is best to contact a paralegal to assess the chances of your request. Please feel free to contact us for a case assessment.

motion to dismiss the small claim

This is a motion that a party files asking the Small Claims Court for an order to dismiss the plaintiff’s claim entirely. There are three common reasons for this motion:

1. The limitation period under the Limitations Act has expired. It usually means that the plaintiff is barred from filing the plaintiff’s claim. As such, the defendant can file a motion to dismiss the plaintiff’s claim for this reason because it does not have any reasonable cause of action.
2. The plaintiff’s claim is so obviously frivolous and vexatious that a trial would be a waste of time and resources for the Small Claims Court and the parties. As with the motion for the production of documents, this type of motion is rarely used, and the chances of its success must be evaluated carefully. Please feel free to contact our paralegal for a case assessment.
3. The defendant filed a defence that does not include any real argument.  It means that the defence will not succeed. Under such circumstances, the plaintiff can file a motion to quash the defence.

Small Claims Court motions range from relatively simple to highly technical and complex. Please do not hesitate to contact us for an assessment of your case, whether you intend to file a small claims court motion or must respond to one.