Small Claims 1

Unit 6
Admin Processes
LAWS 16446
 AGENDA
ADMINISTRATIVE DISMISSAL & DISCONTINUANCE MOTIONS
• Dismissal by Clerk - Rule 11.1 • Rule 15
• Discontinuance - Rule 11.3 • Types of Motions
• Form 15A
AMENDING PLEADINGS • Schedule A Supporting Affidavit
• Amendment - Rule 12.01
ASSIGNMENT #2
• Motion to strike, stay or dismiss - Rule 12.02 & Rule 12.03
• Instruction handout posted on
SLATE

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 AMENDMENT

When the action is not proceeding A party wants to fix mistake

in the pleading or you
smoothly… motion the court to have the
opposing party fix his
pleading or strike it out
completely.
DISCONTINUANC
E
The plaintiff has changed ADMIN
their mind about suing DISMISSAL
and wants to withdraw the
claim Clerk may dismiss the
claim if it appears the
plaintiff abandoned it.

MOTION
Ask the court to help
resolve an issue or get
direction re a
procedural matter

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Rule 11.1
Dismissal by Clerk

4
 1.
Offe
r
2. f i l e d t o se t t l e
/ a c ce
Defe p t ed
n
liabi ce admits
li
3. pr o p t y a n d
os e d
Dismissal by Clerk Pl a i n
ti
disab ff under
t erm
s
il i ty a

◉ It is the plaintiff’s job to move the Claim forward through the litigation process
– the clerk will serve an order dismissing the Claim if the plaintiff doesn’t do
this.
◉ Rule 11.01 – Clerk can dismiss the claim if:
• More than two years has passed since the Claim was issued
• Action wasn’t disposed of by order or settled
• Motion in Writing for Assessment of Damages hasn’t been filed
• Trial or Assessment Hearing date hasn’t been requested
◉ But some circumstances may prevent dismissal by the clerk
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 Dismissal by Clerk

◉ If the clerk dismisses the Plaintiff’s Claim, any Defendant’s Claim is also
“deemed to be dismissed” 60 days after the order is served, unless the court
orders otherwise during that 60 day period. Rule 11.1.01
◉ The defendant must bring a motion asking the court to allow the Defendant’s
Claim to proceed as a separate action

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Rule 11.3
Discontinuance

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Discontinuance
The plaintiff may discontinue a claim if the
defendant hasn’t filed a Defence yet.

Why would a plaintiff want to do this?

• The defendant informally admits to the Claim
allegations and pays the plaintiff
• Plaintiff may have changed their mind if there
is a lack of evidence to prove the Claim or lack
of funds to take it further.

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 Discontinuance

◉ Form 11.3 must be served on the defendant, then filed with proof of service
(personal or alternative to personal service) – assuming neither party is under
disability
◉ If the Claim was issued electronically, discontinuance may be filed electronically
What is the effect of discontinuance on a subsequent action?
• Discontinuance of a claim is not a defence to a subsequent action on the
matter unless an order granting leave to discontinue provides otherwise. Rule
11.3.02

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Rule 12.01

Amendment

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 Amendment

◉ Mistakes can be fixed! The Plaintiff’s Claim or Defendant’s Claim can be

amended by filing another copy marked “Amended” with additions underlined
and other changes identified, such as strike outs.
◉ Rule 12.01
• Must file and serve at least 30 days before originally scheduled trial date
• All parties must be served (personal or alternative to), including those in default
• If the original Claim was issued electronically, the plaintiff may amend the claim
electronically if it has not yet been served.
• An amended Defence is not required

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Rule 12.02

Strike

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 Strike

◉ If you think a document:

• discloses no cause of action or defence…or
• may delay or make it difficult to have a fair trial…or
• Is inflammatory, a waste of time, a nuisance or an abuse of court process…
Consider a motion to strike!
The court may order the action be stayed or dismissed, strike out a pleading or grant
judgement, or impose such terms as are just. Rule 12.02(2)

Beware the self-represented litigant…

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 Strike
◉ The court may, on its own initiative, stay or dismiss an action if it appears to be inflammatory, a
waste of time, or an abuse of process. Rule 12.02(3) & (4)
• The plaintiff is advised that the court is thinking of dismissing under this rule, then he/she has 20 days to
file submissions.
• If submissions are filed, the clerk may send the submissions to the other party, who has 10 days to
respond
◉ The court may also do the same for motions - Rule 12.02(7) & (8)
◉ A judge of the Superior Court may hand down an order under s. 140 of the CJA, that the party
cannot bring proceedings in the Small Claims Court without leave from the Superior Court…
• Where the party has persistently brought vexatious proceedings or conducted proceedings vexatiously
without reasonable grounds.

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15
You represent the energy drink company Red Bull. A self-represented litigant by the name of Peter
has sued Red Bull for $35,000 in damages claiming that he has suffered emotional distress after he
drank Red Bull products and failed to grow wings (as the advertisement seemed to suggest). He
alleges that Red Bull's deceptive marketing caused him both financial loss and psychological
distress.

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 What would you do?
a) Wait for the court, on its own initiative, to throw out the claim. Rule 12.02(3) & (4)
b) Serve and file a Defence on behalf of Red Bull
c) Offer to settle for $2,000?
d) Bring a motion to strike based on abuse of court process, nuisance and waste of time. Rule
12.02(2)
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Rule 15
Motions

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 Motions
◉ You may need the court’s help for something during the proceedings A motion
request can be made to the court at any point in time – from the service/filing
of pleadings up until (and even after) the trial! Perhaps you have questions
about:
• Directions on how to proceed in the case

• Resolving a specific issue (not the whole case)

• The admissibility of a certain piece of evidence

• Changing an order that has already been made?

Moving party = person bringing the motion

Responding party = person replying or opposing the motion
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 Motions

◉ It is always best to first ask the opponent if they will consent (agree) to the
motion (the order requested). Rule 11.2.
◉ If the other party consents, use Form 11.2A – Request for Clerk’s Order on
Consent. The most common consent motions are:
• Setting aside a noting in default and default judgement
• Amending a pleading with less than 30 days before trial

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 Can you c
orre
identify th ctly
dealing w e rule
ith some o
Timeline of Typical Motion Requests these requ
ests?
f

Serve/File Plaintiff’s Serve/File Defence (and Settlement

Claim Defendant’s Claim) Conference Trial

Request for extension of time to serve Request for extension of time to serve/file the Request for disclosure of documents from opposing party
the claim (P or rep) defence (D or rep) (P , D, or rep)
Request for additional settlement conference
Request for substituted service of the Request from plaintiff to the court to strike the
claim (P or rep) defence (or part of) for no meritorious defence. (P , D, or rep)
Request to adjourn the trial date
(P or rep) (P , D, or rep)
Request from the defendant to the court Request to move the trial to another court forum
to strike the claim (or part of) for no Request to amend pleading less than 30 days before trial
cause of action, waste of time, After noting defendant
(P , D, orinrep)
default, request for
inflammatory, etc. assessment hearing or a motion in writing for Request to change
(P , trial
D, orformat
rep) from in-person to
(D or rep)
assessment of damages electronic (or vise versa)

(P) Request to serve/file expert report less

(P , D, orthan
rep) 30 days before
trial

(P , D, or rep) 21
 Motions may be heard…

In person Electronically In writing

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 Electronic Motions
The Small Claims court continues to use Zoom for virtual/remote motions in most circumstances. The following
are tips for paralegals:
• Your screen name identity (Jane Smith, paralegal for D) and any still photo of yourself should be professional
• Have a solid colour background or choose a virtual background that is professional/appropriate (ie. not a Vegas casino or tropical
beach)
• Stay sitting throughout the trial – sit close to the camera so your face appears clearly - check your lighting.
• Wear appropriate court clothing
• Do not swivel in your chair or rock back/forth
• Do not eat or drink (water is ok)
• Mind your mute button and your facial expressions during the motion
• Speak directly into the mic and make eye contact with the web cam (not the screen of your picture).
• Raise your hand to object, speak, or interrupt another party.
See Superior Court's Guide to Virtual Hearings At a Glance

See Best Practices for Remote Hearings

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Types of motions

Assessment of
Ex parte On notice
Damages

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On Notice
You must give the other party notice
of your motion (including date, time
and courtroom # for the hearing) at
least 7 days before the hearing of the
motion. Rule 15.01(1) – (5)

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 Rule 15.01(1) – (5)
Motion on Notice

Call Call Prepare Serve File

Call the opposing party – Call the court for date, Prepare the Form 15A and Serve the Form 15A and File with affidavit of service at
contest or consent? time, and crt rm # Supporting Affidavit Supporting Affidavit on least 3 days before hearing with
Available dates? opposing party at least 7 filing $ and any pleadings
days before hearing previously filed electronically

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 Spoilation of
evidence?

Need mo
re t i
s e rv e t h e m e t o
Ex Parte
b ec au s e cl a i m
d ef en d an If notice is unnecessary or it is not reasonably
on o f ca n n o t b t
Si t u a t i m i n g e l o c at ed possible to give notice (given the nature of the
y /ti
urgenc circumstances), a party can bring a motion
without the notice to and participation of the
For substituted other parties.
service
(Rule 8.04) Can you think of any situations where you might
When a party is need to bring an ex parte motion?
noted in default –
not entitled to
notice on a You must make full and fair disclosure of all
procedural step material facts or risk setting aside this order.
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 In Writing for an Assessment of Damages
This is for unliquidated claims where damages are
claimed for losses that are hard to quantify. Here, the
defendant has either been noted in default or has
admitted liability via Defence.
The judge (not the clerk) must assess (determine) how
much to award the plaintiff.
All submissions from the plaintiff are made in writing
via Form 15A with a Schedule A attached (it will be a
“supporting affidavit”).

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Motion Drafting

◉ Regardless of the type of motion or the hearing

format, all Small Claims Court motions require
you to draft and file:
○ Form 15A – with signed/dated jurat; and
○ Schedule A – a supporting affidavit of the facts
supporting your motion request, sworn by the person
with first-hand experience of them.

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 Deponent

◉ The person who gives the statement in the affidavit is called the deponent.
The affidavit is written in the first person narrative (ie. ”I”)
◉ The identity of your deponent of a motion will depend on the topic of your
motion request.
○ Think about what your asking the judge for – the person who has the best first-
hand knowledge to testify to the truth of the facts that explain/justify why
you should get what you’re asking for.
○ Sometimes the deponent will be your client and sometimes it will be another
witness, you, or your admin assistant or law clerk. Again, it depends on who can
best explain the situation from their first-hand witness account of motion request
issue.
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 Can you c
orre
identify w ctly
ho the
deponent
might be
Timeline of Typical Motion Requests with som
e of these
requests?

Serve/File Plaintiff’s Serve/File Defence (and Settlement

Claim Defendant’s Claim) Conference Trial

Request for extension of time to serve Request for extension of time to serve/file the Request for disclosure of documents from opposing party
the claim defence (P , D, or paralegal)
(P if self rep, Paralegal/assistant, or (D if self rep, Paralegal/assistant, or Request for additional settlement conference
process server) process server)
Request for substituted service of the Request from plaintiff to the court to strike the (P , D, or paralegal)
claim defence (or part of) for no meritorious defence. Request to adjourn the trial date
(P if self rep, Paralegal/assistant, or process (P , D, or rep)
server) (D if self rep or Paralegal Request to amend pleading less than 30 days before trial
Request from the defendant to the court Request to move the trial to another court forum
to strike the claim (or part of) for no Request to change
(P , trial
D, orformat from in-person to
paralegal)
cause of action, waste of time, After noting defendant
(D, P, orinParalegal)
default, request for electronic (or vise versa)
inflammatory, etc. assessment hearing or a motion in writing for
assessment of damages Request to serve/file expert report less
(P , D, orthan 30 days before
paralegal)
(P if self rep or Paralegal)
trial
(P)
(P , D, or paralegal) 31
 Motion on Notice
◉ When a motion on notice is argued in person, the parties or their representatives are required to be present at
the court (or virtually) at the time stated on the notice of motion, and to wait until their matter is called.
◉ When the matter is called, the parties or their representatives take their places at the counsel tables facing the
judge’s bench. The moving party or his or her representative speaks first. Usually, the moving party’s
submissions to the judge will consist of a brief summary of what he or she is asking for; an argument as to
why the court should grant the order, with reference to the affidavit and exhibits filed; and any relevant law.
◉ The other party or parties then present an argument as to why the order should not be granted, with reference
to any materials they have filed.
◉ The judge may ask questions or request clarification during submissions by either party.
◉ Having heard the parties’ submissions, the judge makes an order. The judge may give brief reasons for the
order.

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 33

When you appear in court to orally

argue this motion request, do not just
read your Schedule A!
Let’s have a look at what is typically
said at an oral motion...

“
 Suggested Motion Script
“Good morning (afternoon), Your Honour. My name is (last name, initial first name – eg. Smith, initial J.). I am a
licensed paralegal and I represent the (Plaintiff – name or Defendant – name) in this matter, number (#?) on today’s
docket.

We are seeking an order to (state what you are asking for; ie. move the trial of this matter from X small claims court
to Y small claims court; adjourn the trial date; set aside default judgment, etc.) in accordance with (Rule #).
The basis of our request is as follows:
(a) Outline relevant facts supporting your motion request
(b) Outline applicable rule(s)
(c) Discuss any issue of prejudice (ie. prejudice to your client if motion is not granted vs prejudice to opponent if
motion is granted)
Ask for max costs if your client is rightfully
Subject to any questions, those are my submissions.”
bringing this motion – See Rule 15.07
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 MOTION DRAFTING
Exercise

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 Motion Drafting
Together we’ll prepare a sample Form 15A & Schedule A with the following fact scenario:
◉ On September 1, 2023, Brian Montgomery finds a stack of envelopes on his doorstep at 3 Sweet St.,
in Brampton, ON. The handwritten note on the stack of envelopes reads: “These letters arrived at
your old apartment a few months ago – sorry for the delay in getting them to you. I hope they’re not
important! – Sheila Grant”. Sheila Grant is the landlord of an old apartment that Brian lived at 3
years ago.
◉ Brian opens the letters to lean that a plaintiff’s claim was sent to him via registered mail to the old
address he lived at 3 years ago, he was noted in default for failing to file/serve a defence and then a
default judgment was entered against him on May 23, 2023 (Claim No. SC-00-123456).
◉ The claim was filed by Tony’s Friendly Loan Company who lent a sum of $5,000 to Brian back in
October 2020 to cover the cost of a new laptop for college. Brian says that as of March 4, 2021, he
has paid all money owing to the loan company and has copies of the processed cheques cashed by
the plaintiff.

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 Motion Drafting
Q: What will you request from the court on this motion? What Rules are applicable?
Set aside noting in default and default judgment Rule 11.06
Permission to file Defence (extension of time) Rule 8.10(a)
Costs of motion to be paid by plaintiff Rule 15.07

Q: Is this a motion on notice, ex parte, or a motion in writing for assessment of damages?

Motion on notice as the plaintiff will likely contest the request

Q: Who will be the deponent of the Schedule A that sets out the facts supporting the motion request(s)?
Brian (defendant client) has the best first-hand experience of the facts supporting these motion requests

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 Prepare Form 15A
◉ Schedule the motion for September 28, 2023 at 9 am via videoconference (zoom link htpp:###). The
deponent and Commissioner for Taking Affidavits will sign the jurat in person at your office on
September 12, 2023.
◉ Your client, Brian Montgomery currently lives at 3 Sweet Street, Brampton, Ontario L1L 2L2 with
Tel: 905 555-1234 and will be represented by you. You work at the firm of Sheridan Paralegal
Associates, 1234 Sheridan Street, Brampton, Ontario N6H 4E2 905-555-4444 email
help4u@sheridanpa.com. LSO #P12345
◉ Tony’s Friendly Loan Company Ltd. carries on business at 123 Nocredit Avenue, Brampton, Ontario
L5R 6H4 905 458-5432 and is represented by Hamilton Burger, of Burger & Bun, 458932 Bay
Street, Suite 786, Toronto, Ontario M5R 8U7 416 643-1234 email: hamburger@bblaw.com. LSO #
P98765

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Same claim no. for all motions
related to this case

Remember to look up the correct court address at

https://www.ontario.ca/locations/courts/#B-locations

Tony's Friendly Loan Company Ltd. is a corp. so we do

not need additional named partners or sole-proprietors
listed on a FORM 1A

The plaintiff is represented by a paralegal so the plaintiff's

personal contact info is NOT included on the form - only
their paralegal's info. Do not forget both firm name and
name of paralegal "of record" are necessary here

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 You will need to call the courthouse and ask the
clerk for a motion date/time so that you can fill this
part in when completing the Form 15A

The name of the PARTY (not the paralegal) goes here.

Even though you (the paralegal) are going to verbally
speak at the motion hearing on behalf of your client, the
court wants to know who is the "moving party" is (the
party who is making the motion request).

The court clerk will have given you this

As per Rule 11.06
As per Rule 8.10(a)

As per Rule 15.07

Your Schedule A is attached - always check this box!

If you have documentary "exhibits" to support the facts in the affidavit
then those must be attached. These are the "documents" referred to
here. Check this box if you have exhibits.
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 This Part B section is only for a "motion in writing for
assessment of damages". Do not fill this out if that is not
the purpose of your motion.

Name of the deponent who is giving the affidavit (ie.

could be your client, a witness, or even you depending on
the reason for the motion request and the facts to support
it).

Indicate you are attaching your Schedule A. DO NOT

write out the affidavit facts in this section (despite some
examples in the textbook). It is professional to attach the
schedule A.

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Don't forget to check one of these
boxes (ONLY ONE). Remember to only fill out ONE jurat. Fill out this section if the
Commissioner and the Deponent are physically together in the same
room at the same time when signing.

The Commissioner (all paralegals are C0mmissioners) will

ask the deponent to verbally swear that the affidavit is true
then witness the deponent’s signature on the right. Only
THEN will the Commissioner sign here.
The deponent will verbally swear to the Commissioner that
all of the facts in the affidavit are true. Then the deponent will
September 12, 2023
sign here with the Commissioner witnessing it.
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Fill out only this jurat if the Commissioner and the
deponent are signing via video conference, but are
still in the same City/Town.

Fill out only this jurat if the Commissioner and the

deponent are signing via video conference, but are in
different Cities/Towns.

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Supporting Affidavit
Schedule A

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 Supporting Affidavit
◉ Statement of facts that supports the request being made at the motion. It is meant to
replace the need for the person to come to court and give evidence orally (testify).
However, many motions require both written and oral motion requests/arguments.
◉ Prepared as a separate ”Schedule A” attached to Form 15A
The supporting affidavit is:

 Written in the first person (as the deponent)
 Comprised of facts which are within the personal
knowledge of the deponent
 Comprised of some facts which are based on
“information and belief” from another source
accessed by the deponent
attached as an exhibit and referenced specifically
in the affidavit.
 Sworn under oath or affirmation (in the presence
of a Commissioner for taking Affidavits)
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 Parts of the affidavit
1. I am, John Smith, the
defendant in this action
and have personal Facts and evidence in
knowledge of the
support of the relief
following.
sought (including
statements based on
info and belief).
Jurat (Form 15A)
Preamble

Body

Schedule A Exhibits
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Assignment #2
Let’s go through the instruction handout together.

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 Next week!
 Drafting Brian’s Schedule A to Form 15A: Supporting Affidavit
 Work on Assignment #2
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 Back to…
MOTION DRAFTING
Exercise

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 Review the facts…
◉ On September 1, 2023, Brian Montgomery finds a stack of envelopes on his doorstep at 3 Sweet St.,
in Brampton, ON. The handwritten note on the stack of envelopes reads: “These letters arrived at
your old apartment a few months ago – sorry for the delay in getting them to you. I hope they’re not
important! – Sheila Grant”. Sheila Grant is the landlord of an old apartment that Brian lived at 3
years ago.
◉ Brian opens the letters to lean that a plaintiff’s claim was sent to him via registered mail to the old
address he lived at 3 years ago, he was noted in default for failing to file/serve a defence and then a
default judgment was entered against him on May 23, 2023 (Claim No. SC-00-123456).
◉ The claim was filed by Tony’s Friendly Loan Company who lent a sum of $5,000 to Brian back in
October 2020 to cover the cost of a new laptop for college. Brian says that as of March 4, 2021, he
has paid all money owing to the loan company and has copies of the processed cheques cashed by
the plaintiff.

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 Review the Rules…
Q: What will you request from the court on this motion? What Rules are applicable?
Set aside noting in default and default judgment Rule 11.06 – Brian must show he has a reasonable
explanation for the default, he has a meritorious defence, and that he brought this motion as soon as
reasonably possible.
Permission to file Defence (extension of time) Rule 8.10(a) – Brian must show that the claim never came
to his attention (didn’t receive it)
Costs of motion to be paid by plaintiff Rule 15.07 – max $100

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 In this case, your client Brian, has the best first-hand knowledge of
the facts supporting his motion request. The affidavit is drafted in
the first person voice of Brian (even though you are technically
Use specific dates! drafting it for him as his paralegal - but that's why he pays you!)

This preamble will always have this legally phrased formal

statement.

This is a "statement of information and belief". It is information that

Brian received from a third-party source. He has identified the
source and stated that he "verily believes the information to be true".

Documentary evidence referred to in an Affidavit is an "exhibit". We

number exhibits in the order they are referenced in the affidavit.

Remember to consult the Rules you are relying on to see what the
court requires you to prove in your affidavit – See 11.06

Remember to cite all applicable Rules for the relief you are seeking.

Ask for costs if the motion request is being made due to no fault of
your client. See Rule 15.07 re max costs on a motion.
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 Review Q’s
Textbook Ch. 7 .
pg. 332 # 4,5, 10 & 11

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 Next week!
 Motion presentations!

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