Author: Marshall Yarmus
Date Posted: July 15 2019
One of my recent blogs discussed small claims court Ontario motions in general. Let’s discuss today Rules of the Small Claims Court Rule 12.02 motion.
This motion is only to be used to strike out or dismiss a Plaintiff’s Claim, Defendant’s Claim or a Defence, where it is plain and obvious that the claim or defence has no chance at success at trial.
Rule 12.02 states:
“12.02 (1) The court may, on motion, strike out or amend all or part of any document that,
(a) discloses no reasonable cause of action or defence;
(b) may delay or make it difficult to have a fair trial; or
(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process. O. Reg. 78/06, s. 26.
(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:
In the case of a claim, order that the action be stayed or dismissed.
In the case of a defence, strike out the defence and grant judgment.
2.1 In the case of a motion, order that the motion be stayed or dismissed.
Impose such terms as are just. O. Reg. 78/06, s. 26; Reg. 44/14, s. 11 (2).”
One way the courts determine whether it is plain and obvious that a claim or defence cannot succeed at trial is to look at a Plaintiff’s Claim for example and ask themselves, if I accept everything written in the Plaintiff’s Claim as true and proven, is it possible for the Plaintiff to succeed?
There is some good case law to rely on if bringing this type of motion. Have your Paralegal Ontario look up the case law and rely on it at the hearing.
If a claim or a defence is struck out/dismissed at this motion this can be considered a final order of the court. Normally, the limit on costs a motion judge can award is minimal.
However, if a Rule 12.02 motion order is a final determination of the case, the court has the power to order substantially more costs.
We should see more of these motions at the Toronto Small Claims Court, Richmond Hill Small Claims Court, and the Brampton Small Claims Court in the future.