Area of Law: Small Claims Court
Answer # 550
What is a motion?Region: Ontario Answer # 550
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 does not determine the ultimate outcome of the lawsuit.
How to make a motion
To make a motion, you need to fill out a Notice of Motion and Supporting Affidavit. The form is available at the Small Claims Court office and online. This document requires you to fill in the names of the parties, check off what type of motion you are bringing, 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 for taking affidavits. A commissioner for taking affidavits, such as a lawyer, is an official authorized to take affidavits or administer other legal oaths or affirmations in legal settings. In some cases, staff members at the Small Claims Court may also act as commissioners for taking affidavits.
Filing and serving the motion
You must file the Notice of Motion and Supporting 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 then deliver copies of the Notice of Motion and Supporting Affidavit to the other side at least seven days before the court date. To prove that you served the other parties of the lawsuit with this document, you are required to file an Affidavit of Service with the court at least three days before the motion.
If the other side disagrees with the motion that has been served on them, in response they must file an Affidavit on every party who has filed a claim or defence. This is a chance for the opposing party to set out different statements of fact that they want the judge to consider when hearing the motion. The Affidavit must be filed with the court, together with one Affidavit of Service for each party served, at least two days before the hearing date.
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 it you do not agree with and why. The judge will then make a decision about the motion and the trial can continue.
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, or visit the Ministry of the Attorney General, Small Claims Court website.
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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. For legal advice and assistance, contact our preferred Small Claims Court experts, George Brown Professional Corporation .
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