O. Reg. 393/09: Rules of the Small Claims Court


Published: 2009-10-16

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ontario regulation 393/09

made under the

Courts of Justice Act

Made: September 24, 2009
Approved: October 16, 2009
Filed: October 16, 2009
Published on e-Laws: October 19, 2009
Printed in The Ontario Gazette: October 31, 2009


Amending O. Reg. 258/98

(Rules of the Small Claims Court)

1. Subrule 1.02 (1) of Ontario Regulation 258/98 is amended by adding the following definition:

“territorial division” means,

(a) a county, a district or a regional municipality, and

(b) each of the following, as they existed on December 31, 2002:

(i) The combined area of County of Brant and City of Brantford.

(ii) Municipality of Chatham-Kent.

(iii) Haldimand County.

(iv) City of Hamilton.

(v) City of Kawartha Lakes.

(vi) Norfolk County.

(vii) City of Ottawa.

(viii) County of Prince Edward.

(ix) City of Toronto. (“division territoriale”)

2. (1) Subrule 1.06 (3) of the Regulation is amended by striking out “the remaining parties shall be listed in Form 1A and appended to the form” and substituting “the remaining parties shall be listed in Form 1A, which shall be appended to the form”.

(2) Rule 1.06 of the Regulation is amended by adding the following subrules:

Additional Debtors

(4) If any of the following forms do not have sufficient space to list all of the debtors in respect of which the form applies, the remaining debtors shall be listed in Form 1A.1, which shall be appended to the form:

1. Certificate of judgment (Form 20A).

2. Writ of seizure and sale of personal property (Form 20C).

3. Writ of seizure and sale of land (Form 20D).

4. Direction to enforce writ of seizure and sale of personal property (Form 20O).

Affidavit

(5) If these rules permit or require the use of an affidavit, Form 15B may be used for the purpose unless another form is specified.

3. (1) Rule 1.07 of the Regulation is amended by adding the following subrule:

(1.1) If facilities for a video conference are available at the court, all or part of an examination of a debtor or other person under rule 20.10 may be conducted by video conference as permitted by subrules (2) and (3).

(2) Subrule 1.07 (2) of the Regulation is amended by adding “or all or part of an examination under rule 20.10 may be conducted by video conference” after “telephone or video conference”.

4. (1) Subrule 8.01 (5) of the Regulation is amended by adding “and supporting affidavit” at the end.

(2) Subrule 8.01 (10) of the Regulation is amended by striking out “by mail, by courier”.

(3) Subrule 8.01 (12) of the Regulation is revoked and the following substituted:

(12) The notice of examination,

(a) shall be served, together with the financial information form if applicable, at least 30 days before the date fixed for the examination; and

(b) shall be filed, with proof of service, at least three days before the date fixed for the examination.

5. (1) Subrule 8.03 (1) of the Regulation is amended by adding “served on an individual” after “a plaintiff’s claim or defendant’s claim”.

(2) Subrule 8.03 (2) of the Regulation is amended by striking out “a person’s place of residence” in the portion before clause (a) and substituting “an individual’s place of residence”.

(3) Clauses 8.03 (2) (a) and (b) of the Regulation are amended by striking out “the person” wherever it appears and substituting in each case “the individual”.

(4) Subrules 8.03 (7) to (9) of the Regulation are revoked and the following substituted:

Service of Claim

(7) Service of a plaintiff’s claim or defendant’s claim on an individual against whom the claim is made may be made by sending a copy of the claim by registered mail or by courier to the individual’s place of residence, if the individual’s signature verifying receipt of the copy is obtained.

(8) Service under subrule (7) is effective on the date on which the individual verifies receipt of the copy of the claim by signature, as shown in a delivery confirmation provided by or obtained from Canada Post or the commercial courier, as the case may be.

6. Subrule 8.07 (3) of the Regulation is revoked and the following substituted:

Exception

(3) This rule does not apply when a claim is served by registered mail under subrule 8.03 (7).

7. Subrule 8.07.1 (3) of the Regulation is amended by striking out “Subrule (2)” at the beginning and substituting “This rule”.

8. Subrule 8.08 (2) of the Regulation is amended by striking out “and the backsheet”.

9. Clause 11.03 (2) (a) of the Regulation is revoked and the following substituted:

(a) file a notice of motion and supporting affidavit (Form 15A) requesting a motion in writing for an assessment of damages, setting out the reasons why the motion should be granted and attaching any relevant documents; or

10. (1) Paragraph 4 of subrule 11.1.01 (1) of the Regulation is amended by adding “to the plaintiff” after “45 days notice”.

(2) Paragraph 4 of subrule 11.1.01 (2) of the Regulation is amended by adding “to all parties to the action” after “45 days notice”.

11. (1) Subrule 11.2.01 (1) of the Regulation is amended by striking out “request for clerk’s order” in the portion before paragraph 1 and substituting “request for clerk’s order on consent”.

(2) Subparagraphs 1 i and ii of subrule 11.2.01 (1) of the Regulation are amended by adding “less than 30 days before the originally scheduled trial date” at the end in each case.

(3) Paragraphs 2, 3 and 4 of subrule 11.2.01 (1) of the Regulation are revoked and the following substituted:

2. The request is signed by all parties (including any party to be added, deleted or substituted) and states,

i. that each party has received a copy of the request, and

ii. that no party that would be affected by the order is under disability.

(4) Subrule 11.2.01 (3) of the Regulation is amended by striking out “request for clerk’s order” and substituting “request for clerk’s order on consent”.

12. The Regulation is amended by adding the following Rule:

Rule 11.3  Discontinuance

Discontinuance by Plaintiff in Undefended Action

11.3.01 (1) A plaintiff may discontinue his or her claim against a defendant who fails to file a defence to all or part of the claim with the clerk within the prescribed time by,

(a) serving a notice of discontinued claim (Form 11.3A) on all defendants who were served with the claim; and

(b) filing the notice with proof of service.

(2) A claim may not be discontinued by or against a person under disability, except with leave of the court.

Effect of Discontinuance on Subsequent Action

11.3.02 The discontinuance of a claim is not a defence to a subsequent action on the matter, unless an order granting leave to discontinue provides otherwise.

13. Subrule 12.01 (3) of the Regulation is revoked and the following substituted:

Time

(3) Filing and service of the amended document shall take place at least 30 days before the originally scheduled trial date, unless,

(a) the court, on motion, allows a shorter notice period; or

(b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1).

14. (1) Subrule 15.01 (1) of the Regulation is revoked and the following substituted:

Notice of Motion and Supporting Affidavit

(1) A motion shall be made by a notice of motion and supporting affidavit (Form 15A).

(2) Subrule 15.01 (2) of the Regulation is amended by adding “and supporting affidavit” after “notice of motion”.

(3) Subrule 15.01 (3) of the Regulation is amended by striking out “and a supporting affidavit” in the portion before clause (a) and substituting “and supporting affidavit”.

(4) The French version of clause 15.01 (3) (a) of the Regulation is amended by striking out “sont signifiés” and substituting “est signifié”.

(5) The French version of clause 15.01 (3) (b) of the Regulation is amended by striking out “sont déposés” and substituting “est déposé”.

(6) Subrule 15.01 (4) of the Regulation is amended by adding “and supporting affidavit” after “notice of motion”.

15. The French version of subrule 15.03 (2) of the Regulation is amended by striking out “de l’avis de motion et de l’affidavit à l’appui utilisés” and substituting “de l’avis de motion et affidavit à l’appui utilisé”.

16. (1) Subrule 17.04 (2) of the Regulation is revoked and the following substituted:

Transcript

(2) In addition to serving and filing the notice of motion and supporting affidavit (Form 15A) required under rule 15.01, the moving party shall serve and file proof that a request has been made for a transcript of,

(a) the reasons for judgment; and

(b) any other portion of the proceeding that is relevant.

(2) Subrule 17.04 (3) of the Regulation is amended by striking out “the transcript or partial transcript of evidence” in the portion before clause (a) and substituting “the transcript”.

17. Subrule 20.04 (1) of the Regulation is revoked and the following substituted:

Certificate of Judgment

(1) If there is default under an order for the payment or recovery of money, the clerk shall, at the creditor’s request, supported by an affidavit for enforcement request (Form 20P) stating the amount still owing, issue a certificate of judgment (Form 20A) to the clerk at the court location specified by the creditor.

18. (1) Subrule 20.06 (1.1) of the Regulation is amended by striking out “under subrule (1)”.

(2) Rule 20.06 of the Regulation is amended by adding the following subrules:

(1.2) If a writ of seizure and sale of personal property is not issued within one year after the date on which an order granting leave to issue it is made,

(a) the order granting leave ceases to have effect; and

(b) a writ of seizure and sale of personal property may be issued only with leave of the court on a subsequent motion.

(1.3) A writ of seizure and sale of personal property shall show the creditor’s name, address and telephone number and the name, address and telephone number of the creditor’s lawyer or agent, if any.

(3) Subrule 20.06 (3) of the Regulation is amended by striking out “the clerk” at the end and substituting “the bailiff”.

(4) Subrule 20.06 (4) of the Regulation is revoked and the following substituted:

Direction to Enforce

(4) The creditor may request enforcement of a writ of seizure and sale of personal property by filing a direction to enforce writ of seizure and sale of personal property (Form 20O) with the bailiff.

(5) Clause 20.06 (6) (a) of the Regulation is amended by striking out “30” in the portion before subclause (i) and substituting “10”.

19. (1) Subrule 20.07 (1) of the Regulation is amended by striking out “an affidavit for writ of seizure and sale of land (Form 20O)” and substituting “an affidavit for enforcement request (Form 20P)”.

(2) Rule 20.07 of the Regulation is amended by adding the following subrules:

(1.1) If more than six years have passed since the order was made, a writ of seizure and sale of land may be issued only with leave of the court.

(1.2) If a writ of seizure and sale of land is not issued within one year after the date on which an order granting leave to issue it is made,

(a) the order granting leave ceases to have effect; and

(b) a writ of seizure and sale of land may be issued only with leave of the court on a subsequent motion.

(3) Subrule 20.07 (4) of the Regulation is revoked and the following substituted:

Renewal of Writ

(4) A writ of seizure and sale of land may be renewed before its expiration by filing a request to renew a writ of seizure and sale (Form 20N) with the sheriff.

20. (1) Rule 20.08 of the Regulation is amended by adding the following subrules:

Where Leave Required

(2.1) If more than six years have passed since the order was made, or if its enforcement is subject to a condition, a notice of garnishment may be issued only with leave of the court.

(2.2) If a notice of garnishment is not issued within one year after the date on which an order granting leave to issue it is made,

(a) the order granting leave ceases to have effect; and

(b) a notice of garnishment may be issued only with leave of the court on a subsequent motion.

(2.3) A notice of renewal of garnishment may be issued under subrule (5.3) without leave of the court before the original notice of garnishment or any subsequent notice of renewal of garnishment expires.

(2) Subrule 20.08 (3) of the Regulation is amended by striking out “the clerk in the territorial division in which the debtor resides or carries on business” in the portion before clause (a) and substituting “the clerk of a court in the territorial division in which the debtor resides or carries on business”.

(3) Rule 20.08 of the Regulation is amended by adding the following subrules:

Duration and Renewal

(5.1) A notice of garnishment remains in force for six years from the date of its issue and for a further six years from each renewal.

(5.2) A notice of garnishment may be renewed before its expiration by filing with the clerk of the court in which the notice of garnishment was issued a notice of renewal of garnishment (Form 20E.1), together with an affidavit for enforcement request (Form 20P).

(5.3) On the filing of the notice and affidavit required by subrule (5.2), the clerk shall issue the notice of renewal of garnishment (Form 20E.1) naming as garnishee the person named in the affidavit.

(5.4) The provisions of these rules that apply with respect to notices of garnishment also apply with respect to notices of renewal of garnishment.

(4) Clause 20.08 (8) (b) of the Regulation is amended by striking out “within six years after the notice is served” at the end and substituting “after the notice is served and within six years after it is issued”.

(5) Clauses 20.08 (20) (a) and (b) of the Regulation are revoked and the following substituted:

(a) a hearing has been requested under subrule (15);

(b) a notice of motion and supporting affidavit (Form 15A) has been filed under rule 8.10, 11.06 or 17.04; or

(c) a request for clerk’s order on consent (Form 11.2A) has been filed seeking the relief described in subparagraph 1 iii of subrule 11.2.01 (1).

(6) Rule 20.08 of the Regulation is amended by adding the following subrule:

Notice Once Order Satisfied

(20.2) Once the amount owing under an order that is enforced by garnishment is paid, the creditor shall immediately serve a notice of termination of garnishment (Form 20R) on the garnishee and on the clerk.

(7) Subrule 20.08 (23) of the Regulation is amended by striking out “the sheriff” and substituting “the clerk”.

21. (1) Subrule 20.09 (2) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:

(2) The debtor’s notice of motion and supporting affidavit (Form 15A) shall set out, in the affidavit portion,

. . . . .

(2) Subrule 20.09 (3) of the Regulation is revoked and the following substituted:

(3) For the purposes of clause 15.01 (3) (a), the notice of motion and supporting affidavit shall be served on each of the creditors mentioned in it at least seven days before the hearing date.

22. (1) Subrule 20.10 (1) of the Regulation is amended by striking out “the clerk of the territorial division where the debtor or other person to be examined resides or carries on business” and substituting “the clerk of a court in the territorial division in which the debtor or other person to be examined resides or carries on business”.

(2) Clause 20.10 (2) (a) of the Regulation is amended by adding “for enforcement request” after “affidavit” in the portion before subclause (i).

(3) Subrule 20.10 of the Regulation is amended by adding the following subrule:

Attendance

(5.1) A person required to attend an examination may attend,

(a) in person; or

(b) by video conference in accordance with rule 1.07.

23. Clause 20.12 (a) of the Regulation is amended by striking out “request for clerk’s order” and substituting “request for clerk’s order on consent”.

24. Subrule 21.01 (1) of the Regulation is amended by striking out “A referee designated under subsection 77 (2) of the Courts of Justice Act may” in the beginning of the portion before clause (a), and substituting “A person assigned the powers and duties of a referee under subsection 73 (2) of the Courts of Justice Act

may”.

25. The Table of Forms to the Regulation is revoked and the following substituted:

tABLE OF fORMS


Form Number


Form Title


Date of Form




1A


Additional Parties


June 1, 2009




1A.1


Additional Debtors


June 1, 2009




1B


Request for Telephone or Video Conference


June 1, 2009




4A


Consent to Act as Litigation Guardian


June 1, 2009




5A


Notice to Alleged Partner


June 1, 2009




7A


Plaintiff’s Claim


June 1, 2009




8A


Affidavit of Service


June 1, 2009




9A


Defence


June 1, 2009




9B


Request to Clerk


June 1, 2009




10A


Defendant’s Claim


June 1, 2009




11A


Affidavit for Jurisdiction


June 1, 2009




11B


Default Judgment


June 1, 2009




11.2A


Request for Clerk’s Order on Consent


June 1, 2009




11.3A


Notice of Discontinued Claim


June 1, 2009




13A


List of Proposed Witnesses


June 1, 2009




13B


Consent


June 1, 2009




14A


Offer to Settle


June 1, 2009




14B


Acceptance of Offer to Settle


June 1, 2009




14C


Notice of Withdrawal of Offer to Settle


June 1, 2009




14D


Terms of Settlement


June 1, 2009




15A


Notice of Motion and Supporting Affidavit


June 1, 2009




15B


Affidavit


June 1, 2009




18A


Summons to Witness


June 1, 2009




18B


Warrant for Arrest of Defaulting Witness


June 1, 2009




20A


Certificate of Judgment


June 1, 2009




20B


Writ of Delivery


June 1, 2009




20C


Writ of Seizure and Sale of Personal Property


June 1, 2009




20D


Writ of Seizure and Sale of Land


June 1, 2009




20E


Notice of Garnishment


June 1, 2009




20E.1


Notice of Renewal of Garnishment


June 1, 2009




20F


Garnishee’s Statement


June 1, 2009




20G


Notice to Co-owner of Debt


June 1, 2009




20H


Notice of Examination


June 1, 2009




20I


Financial Information Form


January 25, 2006




20J


Warrant of Committal


June 1, 2009




20K


Identification Form 


June 1, 2009




20L


Notice of Default of Payment


June 1, 2009




20M


Affidavit of Default of Payment


June 1, 2009




20N


Request to Renew Writ of Seizure and Sale


June 1, 2009




20O


Direction to Enforce Writ of Seizure and Sale of Personal Property


June 1, 2009




20P


Affidavit for Enforcement Request


June 1, 2009




20Q


Notice of Garnishment Hearing


June 1, 2009




20R


Notice of Termination of Garnishment


June 1, 2009




26. This Regulation comes into force on January 1, 2010.

 

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