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Ontario|Small Claims CourtBefore Going to Trial 550 Motions Sometimes before or during a trial, issues arise which need to be resolved before the trial can continue. To resolve such issues, one of the parties can make a motion. A motion is a request to the court for the judge to make a decision about the issue. For example, during a trial one of the parties involved may discover that somebody else might be responsible for the plaintiff's loss and should be added to the lawsuit. That party would then make a motion to the court and ask the judge to allow them to serve a claim on that person. The judge's decision on a motion may affect how the trial continues, but it may not determine the ultimate outcome of the lawsuit.
- How to make a motion
To make a motion, you need to fill out two forms: a Notice of Motion and an Affidavit in Support of Motion. The forms are available at the Small Claims Court office. A Notice of Motion requires you to fill in the names of the parties and check off what type of Motion you are bringing. An Affidavit in Support of Motion requires you to explain why you are making the motion, and to set out the facts that support your motion.
- How to complete an affidavit
To fill out the Affidavit, you should describe the issue that needs to be resolved, how you think the issue should be resolved, and the facts that you think prove your point. Then, you must swear that the Affidavit is true in front of a commissioner of oaths. Lawyers are commissioners of oath. Staff members at the Small Claims Court can also swear your Affidavit.
- Filing and serving the motion
You must file the Notice of Motion and Affidavit at the Small Claims Court office. The staff at the Court office will give you a time and date to appear in front of the judge. You must deliver copies of the Notice of Motion and Affidavit to the other side at least seven days before the date that the judge will hear the Motion, and file an Affidavit of Service with the court that states you served the Motion on the other side.
- What happens at court? How is the motion decided?
A motion may be heard in the judge's office or in the courtroom. Check the lists posted at the courthouse to see where your motion is being heard. At the hearing, both sides will be able to speak to the Judge about the motion. If the other side is making the motion and you agree with it, then say so. If you do not agree with the motion, you will have to tell the judge what part of the motion you do not agree with and why. The judge will make a decision about the motion. Then the trial can continue.
If you feel that a serious error was made by the judge in granting or denying a motion, it may be possible to have it reviewed. However, this can be a complicated procedure, and you should consult a lawyer about this.
Because Small Claims Court is intended to be fast and straightforward, you should only bring a motion if it will make a difference to the lawsuit. Before you bring a motion you should try to resolve the issue with the other side, or see if they will consent to the motion without needing a hearing. The final decision will be up to the judge.
For more information on the procedures for bringing a motion, you can contact the staff at the Small Claims Court. For legal representation or advice, contact a lawyer.
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