Justice Marvin A. Zuker ONTARIO SMALL CLAIMS COURT PRACTICE

Transcription

1 Justice Marvin A. Zuker ONTARIO SMALL CLAIMS COURT PRACTICE Practice Advisor June 28, 2013 Below please find a comprehensive collection of updates to the legislative provisions that have been amended since publication of the 2013 edition of Ontario Small Claims Court Practice. Cumulative Amendments (June 9, 2012 to June 28, 2013) Rules of the Small Claims Court, O. Reg. 258/ (1) Money to be Paid into Court Any money payable to a person under disability under an order or a settlement shall be paid into court, unless the court orders otherwise, and shall afterwards be paid out or otherwise disposed of as ordered by the court. 4.08(2) If money is payable to a person under disability under an order or settlement, the court may order that the money shall be paid directly to the person, and payment made under the order discharges the obligation to the extent of the amount paid. Supporting Affidavit 4.08(3) A motion for an order under this rule shall be supported by an affidavit in Form 4B rather than an affidavit in Form 15A. Costs 4.08(4) In making an order under this rule, the court may order that costs payable to the moving party be paid out of the money in court directly to the person representing that party in the proceeding. O. Reg. 400/12, s (2) Dismissal Defended Actions The clerk shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise: 1. More than 150 days have passed since the date the first defence was filed Thomson Reuters Canada Limited 1 June 28, 2013

2 2. All settlement conferences required under Rule 13 have been held. O. Reg. 56/12, s The action has not been disposed of by order and has not been set down for trial. 4. The clerk has given 45 days notice to all parties to the action that the action will be dismissed as abandoned. Rule 22 Payment Into and Out of Court Definitions In this Rule, Accountant means the Accountant of the Superior Court of Justice; ( comptable ) clerk means the clerk in the location where the proceeding was commenced. ( greffier ) Non-Application of Rule This Rule does not apply to money paid or to be paid into court, (a) under an order or proposal for payment made under rule 9.03; (b) under an offer to settle a claim in return for the payment of money; or (c) for the enforcement of an order for the payment or recovery of money under Rule 20, including enforcement by garnishment. Payment into Court (1) Subject to subrule (7), a party who is required to pay money into court shall do so in accordance with subrules (2) to (6). Filing with Clerk or Accountant (2) The party shall file the following documents with the clerk or the Accountant: 1. If the payment into court is under a statutory provision or rule, a written request for payment into court that refers to that provision or rule. 2. If the payment into court is under an order, a written request for payment into court and a copy of the order that bears the court s seal. Direction (3) On receiving the documents required to be filed under subrule (2), the clerk or Accountant shall give the party a direction to receive the money, addressed to a bank listed in Schedule I or II to the Bank Act (Canada) and specifying the account in the Accountant s name into which the money is to be paid. Clerk to Forward Documents (4) If the documents are filed with the clerk, the clerk shall forward the documents to the Accountant. Payment 2013 Thomson Reuters Canada Limited 2 June 28, 2013

3 (5) On receiving the direction referred to in subrule (3), the party shall pay the money into the specified bank account in accordance with the direction. Bank s Duties (6) On receiving the money, the bank shall give a receipt to the party paying the money and immediately send a copy of the receipt to the Accountant. Payment to Accountant by Mail (7) A party may pay money into court by mailing to the Accountant the applicable documents referred to in subrule (2), together with the money that is payable; the written request for payment into court referred to in that subrule shall include the party s name and mailing address. Accountant to Provide Receipt (8) On receiving money under subrule (7), the Accountant shall send a receipt to the party paying the money. Proof of Payment (9) A party who pays money into court shall, immediately after receiving a receipt from the bank under subrule (6) or from the Accountant under subrule (8), as the case may be, send to every other party a copy of the receipt and file a copy of the receipt with the court. Payment Out of Court (1) Money may only be paid out of court under an order. Documents to be Filed (2) A person who seeks payment of money out of court shall file with the Accountant, (a) a written request for payment out and supporting affidavit, in the form provided by the Ministry; and (b) a copy of the order for payment out that bears the court s seal. Payment Out, Children s Lawyer or Public Guardian and Trustee (3) If the person seeking payment out is the Children s Lawyer or the Public Guardian and Trustee, (a) the written request need not be in the form provided by the Ministry and a supporting affidavit is not required; and (b) a single written request that deals with more than one proceeding may be filed. Payment Out, Minor Attaining Age of Majority (4) Despite subrule (2), money in court to which a party is entitled under an order once the party attains the age of majority may be paid out to the party on filing with the Accountant, in the forms provided by the Accountant, (a) a written request for payment out; and (b) an affidavit proving the identity of the party and that the party has attained the age of majority. Accountant s Duties 2013 Thomson Reuters Canada Limited 3 June 28, 2013

4 (5) If the requirements of subrule (2) or (4), as the case may be, are met, the Accountant shall pay the money to the person named in the order for payment out, and the payment shall include any accrued interest, unless a court orders otherwise. Transition This Rule applies to the payment into and out of court of money paid into court on and after the day on which Ontario Regulation 400/12 comes into force. O. Reg. 400/12, s. 2 The Table of Forms to the Regulation is amended by adding the following: 4B Affidavit (Motion for Payment Out of Court) November 1, 2012 O. Reg. 400/12, s. 3 Small Claims Court Fees and Allowances, O. Reg. 432/93 SCHEDULE 1 CLERK S FEES 1. Filing of a claim by an infrequent $75.00 claimant 2. Filing of a claim by a frequent claimant 3. Filing of a defendant s claim Filing a notice of motion served on another party, a notice of motion without notice or a notice of motion for a consent order (except a notice of motion under the Wages Act) 5. Filing a defence Issuing a summons to a witness Receiving for enforcement a process from the Ontario Court of Justice or an order or judgment as provided by statute 8. Issuing a certificate of judgment Issuing a writ of delivery, a writ of seizure and sale or a notice of examination 10. Issuing a notice of garnishment Preparing and filing a consolidation order 12. Forwarding a court file to Divisional Court for appeal 13. Issuing a certified copy of a judgment or other document, per page 14. Transmitting a document other than Cost of 2013 Thomson Reuters Canada Limited 4 June 28,

5 by mail 15. For the inspection of a court file, transmission i. by a solicitor or party in no charge the proceeding ii. by a person who has entered into an agreement with the Attorney General for the bulk inspection of court files, per file iii. by any other person, per file 16. Making a photocopy of a document not requiring certification, per page 17. For a copy on compact disc (CD) of a digital recording of a court hearing in respect of a case, if such a recording exists and a copy is available: i. For a single day s recording ii. For each additional day s recording, if the request is made at the same time as a request under subitem i 18. In an application under the Repair and Storage Liens Act, i. on the filing of, A. an application B. a notice of objection C. a waiver of further no charge claim and a receipt ii. on the issuing of, A. an initial certificate B. a final certificate C. a writ of seizure Fixing of a date for a trial or an assessment hearing by an infrequent claimant 20. Fixing of a date for a trial or an assessment hearing by a frequent claimant 21. Entering of a default judgment by an infrequent claimant 22. Entering of a default judgment by a frequent claimant O. Reg. 214/97, s. 2; 488/98, s. 2; 17/00, s. 1; 11/05, s. 1; 271/05, s. 1; 363/06, s. 1; 248/12, s Thomson Reuters Canada Limited 5 June 28, 2013

6 Superior Court of Justice and Court of Appeal Fees, O. Reg. 293/92 1. The following fees are payable, except in respect of proceedings to which section 1.2 applies: 1. On the issue of, i. a statement of claim or notice of $ action ii. a notice of application iii. a third or subsequent party claim iv. a statement of defence and counterclaim adding a party v. a summons to a witness vi. a certificate, other than a certificate of a search by the registrar required on an application for a certificate of appointment of estate trustee, and not more than five pages of copies of the Court document annexed for each additional page 2.00 vii. a commission viii. a writ of execution ix. a notice of garnishment (including the filing of the notice with the sheriff) 2. On the signing of, i. an order directing a reference, except an order on requisition directing the assessment of a bill under the Solicitors Act ii. an order on requisition directing the assessment of a bill under the Solicitors Act A. if obtained by a client B. if obtained by a solicitor iii. a notice of appointment for the assessment of costs under the Rules of Civil Procedure 3. On the filing of, i. a notice of intent to defend ii. if no notice of intent to defend has been filed by the same party, a statement of defence, a defence to counterclaim, a defence to crossclaim or a third party defence iii. a notice of appearance Thomson Reuters Canada Limited 6 June 28, 2013

7 iv. a notice of motion served on another party, a notice of motion without notice, a notice of motion for a consent order or a notice of motion for leave to appeal, other than a notice of motion in a family law appeal v. a notice of return of motion, other than a notice of return of motion in a family law appeal vi. in a family law appeal, a notice of motion served on another party, a notice of motion without notice, a notice of motion for a consent order or a notice of return of motion vii. a notice of motion for leave to appeal in a family law case viii. a requisition for signing of default judgment by registrar ix. a trial record, for the first time only x. a notice of appeal or crossappeal from an interlocutory order xi. a notice of appeal or crossappeal to an appellate court of a final order of the Small Claims Court xii. a notice of appeal or crossappeal to an appellate court of a final order of any court or tribunal, other than the Small Claims Court or the Consent and Capacity Board xiii. a request to redeem or request for sale xiv. an affidavit under section 11 of the Bulk Sales Act xv. a jury notice in a civil proceeding 4. For obtaining an appointment with a registrar for settlement of an order 5. For perfecting an appeal or judicial review application 6. For the making up and forwarding of papers, documents and exhibits Thomson Reuters Canada Limited 7 June 28, and the transportation costs 7. For making copies of documents, i. not requiring certification, per 1.00 page ii. requiring certification, per page For the inspection of a court file, i. by a solicitor or party in the proceeding No charge

8 ii. by a person who has entered 4.00 into an agreement with the Attorney General for the bulk inspection of court files, per file iii. by any other person, per file For the retrieval from storage of a court file For the taking of an affidavit or declaration by a commissioner for taking affidavits 11. For a settlement conference under rule of the Rules of Civil Procedure 12. For a copy on compact disc (CD) of a digital recording of a court hearing in respect of a case, if such a recording exists and a copy is available: i. For a single day s recording ii. For each additional day s recording, if the request is made at the same time as a request under subitem i O. Reg. 10/05, s. 1; 272/05, s. 1; 169/07, s. 1; 247/12, s (1) (2) 1.2 (1) The following fees are payable in respect of proceedings that are governed by Ontario Regulation 114/99 (Family Law Rules), except for proceedings under rule 38 (appeals), to which section 1 applies: 1. On the filing of an application $ On the filing of an answer, other than an answer referred to in item 3 3. On the filing of an answer where the answer includes a request for a divorce by a respondent 4. On the placing of an application on the list for hearing On the issue of a summons to a witness On the issue of a certificate with not more than five pages of copies of the Court document annexed For each additional page For making copies of documents, i. not requiring certification, per 1.00 page ii. requiring certification, per page For making up and forwarding papers, documents and exhibits and the transportation costs 2013 Thomson Reuters Canada Limited 8 June 28, 2013

9 9. For a copy on compact disc (CD) of a digital recording of a court hearing in respect of a case, if such a recording exists and a copy is available: i. For a single day s recording ii. For each additional day s recording, if the request is made at the same time as a request under subitem i O. Reg. 136/04, s. 3; 169/07, s. 2; 247/12, s Thomson Reuters Canada Limited 9 June 28, 2013