Author: Marshall Yarmus
Date Posted: July 15 2019
A motion is a special hearing in small claims court where any party can request a specific order.
The most common orders sought at a motion are: to set aside a default judgment, set aside noting in default, terminate enforcement action, file a defence, strike out a claim or defence that has no merit, to extend a deadline to do something, to file a Defendant’s Claim.
Every motion starts with the party requesting the order to fill out the Notice of Motion and Supporting Affidavit form. This is issued by the court. You will be given a date and time for the hearing to take place.
The party who is requesting the order is called the Moving Party.
This Notice of Motion and Supporting Affidavit must be served on every Plaintiff and Defendant in the action. This includes serving it on a party that has been noted in default. That means it must be served on a Defendant even if they did not file a Defence and the Plaintiff had filed documents with the court asked that the Defendant be noted in default.
The party that is served with the Notice of Motion is called the Responding Party. They may serve and file an Affidavit in Response to Motion.
If an Affidavit in Response to Motion is served and filed, the person who initially brought the motion called the Moving Party, has one final opportunity to provide an affidavit replying to the Affidavit in Response. This is called a Supplementary Affidavit.
The facts that the judge will consider at a Motion Hearing are limited to the affidavit evidence contained in the Moving Party’s Notice of Motion and Supporting Affidavit, the Responding Party’s Affidavit in Response to Motion, and Moving party’s Supplementary Affidavit.
The judge will also consider the law, including any rules of the court and case law provided by the parties or their paralegal Ontario.
Check the court’s rules for information on how a motion is to be served, when the Notice of Motion and Supporting Affidavit, Affidavit in Response, and Supplementary Affidavit must be served and filed with the court.
Let’s address the most common type of motion the court hears: a motion to set aside default judgment.
Small Claims Court Rule 11.06 deals with a motion to set aside a default judgment. The rule states:
“Setting Aside Noting of Default by Court on Motion 11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that, (a) the party has a meritorious defence and a reasonable explanation for the default; and (b) the motion is made as soon as is reasonably possible in all the circumstances. O. Reg. 78/06, s. 24”.
This blog will not be addressing the huge amounts of case law regarding the tests to set aside default judgment. If you search case law you will find cases that discuss:
- how rigidly the judge should apply the three part test;
- there are other tests not mentioned in the Small Claims Court Rules that a judge can consider;
- what is considered a meritorious defence;
- can the court consider a lower standard then a meritorious defence; and,
- situations where the court must ignore the tests and automatically set-aside the default judgment
Do your case law research or hire a paralegal Ontario to represent you.
Note that Small Claims Court Rule 11.06 states that a default judgment may be set aside a default judgment “on such terms as are just.”
What does that mean? The court could order a Defendant to pay costs the Plaintiff to partially compensate the Plaintiff for their inconvenience and expense.
The “such terms as are just,” could also mean the judge will order the Defendant to be pay money into court to be held as security pending the outcome of the trial or settlement.
A judge can also order costs of the motion itself. A Plaintiff may be ordered to pay costs of the motion to the Defendant for opposing a motion that should not have been opposed.
The philosophy of the small claims Ontario is that of Natural Justice. Every case should be tried on its merits, whenever possible. The courts want cases decided based on hearing the evidence of every party.
This means that the overwhelming majority of motions to set aside default judgment will be granted. Often the only issue for the court to decide is the “such terms as are just.”
The court will decide what, if any, order to make regarding costs or security to be paid into court.
Knowing that most default judgments will be set aside I take steps my competitors don’t to minimize the likelihood of the Defendant ever filing a motion to set aside.
I rarely appear in motions court for my Plaintiff clients who have hired me to do everything from the start.
See details on my website. My philosophy is simple. Why waste my client’s money and time. Knowing that motions to set aside will be granted, I don’t know why some representatives rush to the courthouse to sign default judgment.