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Small Claims Court (Ontario) Legal Guide
(20 June 2021)
Chapter 12 - Motions and Procedural Changes
- Overview
- Motions With Notice
(a) Overview
(b) Scheduling
(c) Service and Filing of Motion Materials
(d) Evidence on Motions
(e) Motions "On Consent" or "Unopposed"
- Motions Without Notice
(a) Overview
(b) Motions At Hearing
(c) Ex Parte Motions
(d) Service of Orders Obtained Without Notice
(e) Setting Aside Orders Obtained Without Notice
- Motion Hearing Methods
(a) Overview
(b) Oral Motion Hearing Procedure
(c) Electronic Motion Hearing Procedure
(d) Written Motion Hearing Procedures
- Motion-Related Practice Tips
- Nuisance Motions
(a) Overview
(b) Stay or Dismissal of Motions at the Initiative of the Court
(c) Stay or Dismissal of Motion(s) on Motion to Amend or Strike
- Adjournment of Motions
- Pre-Commencement Motions
- Costs on Motions
- Withdrawal of Motions
- Procedural Changes on Consent
(a) Overview
(b) Where Available
(c) Materials to Obtain and File
(d) Amendment of Claim or Defence Where Defendant Noted in Default
(e) Orders
(f) Refusal of Order
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1. Overview
In the course of a court proceeding it sometimes becomes necessary or prudent to obtain court permission or a court order for some procedural step which a party is not automatically entitled to. These are obtained either with consent of the other parties, by 'making a motion' to the court - or both.Terminology Note:
The term court "order" generally refers to court decisions regarding procedural matters, as distinct from "judgments", which are final court decisions regarding the whole proceeding. Most motions seek court orders, although occasionally there can be "motions for judgment", particularly in default proceedings (see Ch.9 "Default by Defendant"). Amendments to the court rules effective 01 July 2006 significantly elaborate and expand on the procedures involved in making various types of motions, and add a range of consent matters which can be dealt with "over-the-counter" [see s.11, below: "Procedural Changes on Consent"].
While most motions are initiated by parties ("party motions"), sometimes - depending on local court practice - the court itself will occasionally make procedural changes unilaterally without being requested by a party at all if the court feels that the court rules do not cover a matter adequately [R1.03(2)], or if the change is required to "secure the just determination of the real matters in dispute" [R2.01]. Further, many provisions in the Small Claims Court Rules that authorize motions either use the phrasing "the court may, on motion" or "the court may". When it says "the court may" this means that the court itself may "move" to achieve a result it feels is necessary and just, without being requested to do so by a party.
Most "motions" however will be initiated by a party to the litigation. Here are some examples of steps that might require party motions (there are more):- extending or shortening time limits
- setting aside default proceedings
- staying or dismissing a proceeding
- obtaining a stay, a dismissal or judgment
- add or remove parties or issues
- amending pleadings a party's own pleadings if later than 30 days before trial
- amending or striking pleadings of another party
- adjournments requests
- orders for the interim possession of personal property
- extending the time for serving a Claim
- substituted service.
As Small Claims Court is designed for non-lawyers parties can expect the judge to be more "hands-on" than might be the case in the higher courts. Expect the court and judges to take you and your case aggressively in hand to ensure that if it can be settled it is, failing which it be properly prepared for trial - and expeditiously heard.
2. Motions With Notice
(a) Overview
With two exceptions (discussed below) motions should be brought "with notice" (commonly "on notice") - which means that the motion documentation should be served on all parties (see Ch.6 "Service of Documents") - except those "noted in default" (see Ch.9 "Default by Defendant") - and also filed with the court. "Filing" means providing the court office with copies of the served materials, along with "proof of service" (Ch.6: "Service of Documents: Proof of Service and Filing").
The documentation for a motion is the (now-combined) Form 15A: Notice of Motion and Supporting Affidavit [R15.01(1)]. The Notice of Motion sets out the order sought, lists the evidence relied upon (ie. the affidavits), and the time, date and location where the motion will be heard (if an oral hearing will be held, otherwise relevant scheduling details will be set out). The form and content of affidavit/s is discussed below ("Evidence on Motions"). Ensure you have enough copies of the motion materials for yourself, the court (the original) and for service on all parties.
(b) Scheduling
Proper completion of a Notice of Motion and Supporting Affidavit by the moving party requires that they first obtain from the court a motion hearing date [R15.01(2)]. The court clerk, when contacted, will provide the moving party with a list of available dates - but will also wish them to commit to such a date for the hearing of the motion. It is normal practice for moving parties - especially if represented - to approach the other parties with available dates (obtained from the court) before committing to a date in order to ascertain scheduling availability of the other parties. If scheduling co-operation is not forthcoming after repeated efforts, the moving party may want to just go ahead and schedule a date at the convenience of the co-operating parties.
The minimum timelines (discussed below) for the service and filing of motion materials are quite short, and are rarely used in practice. Moving parties wanting to use these minimum timelines who have not cleared date availability with the other parties will typically be met with a successful motion for adjournment.
(c) Service and Filing of Motion Materials
Acceptable methods of serving motion materials are covered in Ch.6 "Service of Documents".
Service of motion materials shall be made on all parties, (except for defendants who have been noted in default: see Ch.9 "Default by Defendant"), as follows:- originating materials, at least seven days before the hearing date [R15.01(3)], with filing at least three days before the hearing date [R15.01(3)];
- responding affidavit/s (by other parties) served and filed at least two days before the hearing date [R15.01(4)];
- supplementary affidavits (by the moving party) served and filed at least two days before the hearing date [R15.01(5)].
Note:
As the minimum service and filing timelines for both responding and supplementary affidavits are the same, in those rare cases where minimum timelines are being used, there may be problems in using the "supplementary affidavit" to respond to new issues raised in the "responding affidavit". In such cases parties may just want to serve and file supplementary affidavits late - or even just bring them to the court hearing - in the hope that the court will be sympathetic to the time pressure involved and extend time under R3.02(1). Whenever possible though, service of materials should be made well in advance of the hearing. Where time before trial is tight, it is sometimes possible to make motions on notice "returnable" (ie. scheduled to be heard) at trial - or even settlement conferences.
(d) Evidence on Motions
Evidence on motions is normally submitted by way of affidavits. Since 01 January 2010 the affidavit is combined with the Notice of Motion form (the "Notice of Motion and Supporting Affidavit" linked above). The court can hear testimonial evidence on a motion but that is unusual.
An affidavit is a written statement, sworn before a "Commissioner for Oaths" (commonly a lawyer), and signed (first) by the person swearing the affidavit (the deponent), and then the "Commissioner". Typically the Commissioner will require the deponent (whose affidavit it is) to state verbally that the affidavit is true before signing it. Clerks of the Small Claims Court can commission affidavits, for a fee.
The drafting of a true and concise affidavit is very important. Submitting a false or misleading affidavit to the court will (minimally) hurt the credibility of your case generally. Further, knowingly swearing a false affidavit is a criminal offence. Preparing affidavits is not the time to be "slick" or to leave out important but harmful information.
Conventional affidavit practice is to set out each statement in separate numbered paragraphs, using simple statements as much as possible - especially for evidence likely to be disputed. You should review the chapter on "Pleadings" to get a flavour for the kind of brevity and efficiency that is expected in affidavits.
Remember that an affidavit is about evidence, not argument. Argument happens orally at the hearing of the motion - not before. This is a common mistake by inexperienced litigants. All that should be put into an affidavit are things that the deponent knows to be true - not speculation, nor conclusions of law.
When an exhibit such as a document or photo is to be incorporated in an affidavit, follow this procedure on all original copies of the affidavit:- include as a paragraph in the affidavit a reference to the exhibit, eg.:
Attached hereto as Exhibit C is a true photo of the plaintiff's face taken on 13 May 2003 showing the injuries sustained.
- or -
Attached hereto as Exhibit C is a true copy of the contract document dated 27 September 2001, signed by the defendant and plaintiff.
- include ON the Exhibit itself (or on the back of photos) the following statement (use small print - commonly rubber stamps are used), which will be signed by Commissioner - NOT the deponent:
This is Exhibit C to the
Affidavit of Fred Smith,
sworn before me this 3rd
day of December, 2004.
___________________________
(signature of Commissioner)
- staple the exhibit behind the affidavit.
As noted above, the other parties in the proceeding have the right to prepare and file their own responding affidavits on the motion. Full familiarity with the other side's affidavit/s is essential when arguing a motion.
The Small Claims Rules do not provide procedures or rights for what is known as "cross-examination" of affidavits. This procedure, used in the higher court, is an oppourtunity for parties to question the deponent with a written transcript of the questions and answers. While no right to cross-examination of affidavits exists, there is nothing preventing parties from agreeing to mutual cross-examination conducted privately and then using the resulting transcripts in evidence like any other written statements. A properly conducted cross-examination transcript taken before a recognized professional "examiner" will likely be treated as accurate by the court. Such services are available commercially in most large cities in the province.
Normally however cross-examination will not be conducted. Therefore a clear and credible affidavit - without exaggeration, self-serving comments, or major omissions - is more likely to impress the court.
(e) Motions "On Consent" or "Unopposed"Note:
There are extensive rules governing procedural changes "on consent" (see s.11 "Procedural Changes on Consent", below.) When a procedural change does not fall into the categories mentioned there, then the following section still applies to motions which are still "on consent" of the parties. Parties on the other side of a motion will not always oppose it - they may "consent" to it or state that they are "unopposed" to it. This latter term really means that they will not participate in the motion proceedings and will trust to the court's resolution of the motion request.
Where the other parties consent to the motion, the prompt filing of their written consent/s to the motion will normally avoid the need for the parties to attend a motion hearing, and the order will usually be granted administratively. Promptness in filing the consent is key in this regard. Consult with the local court clerk to determine if they will require a formal Notice of Motion in these cases or whether letters alone will suffice.
That said, responding party consent alone does not guarantee that the motion will be granted and it is still ultimately for the court to grant or refuse the motion. The only practical exception to this rule are motions to extend or shorten time limits [R3.02(2)], which will almost always be granted on all party consent unless they impose scheduling impracticalities for the court.
3. Motions Without Notice
(a) Overview
There are two circumstances where Notices may be made (and heard) without notice to the other parties (ie. without service as described in s.2 above). These are [R15.03(1)]:- motions at hearing ("if the nature or circumstances of the motion make notice unnecessary");
- ex parte motions ("if the nature or circumstances of the motion make notice ... not reasonably possible").
(b) Motions At Hearing
Motions at hearing can be made when all parties are present in a trial or settlement conference, and are not prejudiced by a motion being raised spontaneously (ie. verbally). Such circumstances often arise in settlement conferences when discussions reveal problems with pleadings (see Ch.8 "Pleadings") or the need to add or remove parties from the litigation (see Ch.10 "Pretrial Proceedings: Transfer, Merger and Joinder").
Another situation in which motions without notice are common is where a procedural time limit was missed, such as late notice or document service on another party. The court has authority to extend the time limit to legitimize the step regardless of it's lateness [R3.02(1)]. Some courts will do this even without an express request of the party who was late, but you should not depend on this or assume that your motion to extend time will be automatically granted. The court will be concerned to see that no party had been prejudiced (caught unawares) by the lateness.
Parties should avoid the need to use motions at hearing to deal with significant matters that should have been dealt with by earlier motions with notice (ie. do not leave important motions to trial unless you can't avoid it).
(c) Ex Parte Motions
The second type of motion without notice is when there are pressing time constraints, or significant privacy or security interests involved (see Ch.14, s.4: "Trial: Trial Issues: Public Access and Media"). However such circumstances are unusual as the Small Claims Court has very limited declaratory or injunctive jurisdiction (see the discussions at Ch.3 "Jurisdiction: sections 2 and 5") to deal with these situations (eg. publication bans).
Where possible, motion materials should still be filed with the court for ex parte motions (ie. Notice of Motion and supporting affidavits). Where this is not possible contact the court clerk for directions as to how to proceed, as directions will vary with the circumstances.
(d) Service of Orders Obtained Without Notice
Where a party does obtain an order "without notice", they shall serve it and copies of the originating motion materials on "every affected party" (typically, all parties not noted in default: see Ch.9 "Default by Defendant"), within five days after the court or judge signs the order (contact the court clerk promptly to determine when this is done and when a copy of the order is available) [R15.03(2)].
(e) Setting Aside Orders Obtained Without Notice
Any party "affected by an order obtained on motion without notice" who wishes to have it 'set aside" (ie. cancelled) or varied may make a motion to do this within 30 days after being served with the order [R15.03(3)]. Where a party has not been served with the order but still feels that they are "affected" by it they should make such a motion as soon as they learn of the order being made, regardless of service.
The term "affected by" will be interpreted by courts to apply to parties directly or significantly legally impacted by the order, not those who are simply annoyed by it or have a grudge against the moving party.
In some cases where proceedings have become subject to specific (and uncommon) orders (eg. judgment to be signed unless specified conditions to be complied with by a party), it is conceivable that a motion for judgment (final judgment in the case) could be made ex parte. In such a rare situations parties making a motion to set aside or vary such a judgment that has been signed (by the court or the judge) must serve the motion materials on all parties - INCLUDING those who have been noted in default [R15.01(6)].
4. Motion Hearing Methods
(a) Overview
Amendments to the court rules effective 01 July 2006 now provide for new hearing methods in addition to the traditional in-person court hearing [R15.02(1)]. These new methods include electronic hearings (typically telephone, though video is possible) and those by "any other method that the judge determines is fair and reasonable". This latter general authority might be used to conduct hearings by combining the various hearing methods mentioned here.
As well, there is now express authority for the holding of "damage assessments" by way of written motion (see Ch.9 "Default by Defendants") [R15.02(1)(2)].
(b) Oral Motion Hearing Procedure
On attending the court at the time for the motion, check the "docket" sheets outside of the courtroom for you case. Wait inside the courtroom until your case is called.
At the hearing of the motion you can assume that the court is familiar with the motion materials that have been filed.
The hearing of a motion will proceed by the judge allowing the moving party an oppourtunity to make submissions - on the basis of the evidence filed - why the sought order should be granted. Opposing parti/es will then be given their chance to argue against the order sought. There can be (if necessary) a final oppourtunity for the moving party to rebut any NEW issues raised - but DO NOT use this time to repeat yourself.
The court will then issue their order on the motion: ie. deny, grant or grant in part. After that they will normally invite "submissions as to costs" ("costs" are discussed below) - and make an order on that.
The motion and costs orders will then be entered by the judge in a written "endorsement" on the court record, so that the court has a formal record of them. For most orders this endorsement will suffice as evidence that the order was made, but for final judgments "Certificates of Judgment" may be obtained (ie. for collection purposes: see Ch.16, s.4(f) "Collection: Certificates of Judgment").
Although the issue is not likely to arise, the general rule is that all court procedures - including motions - are open to the public but that audio and visual recordings are prohibited with some exceptions. For a fuller discussion of this issue see Ch.14, s.4: "Trial: Trial Issues: Public Access and Media").
(c) Electronic Motion Hearing Procedure
New rules effective 01 July 2006 now provide for the possibility - on request of a party and approval of the court - of conducting all or part of a motion hearing by telephone or video conferences [R1.07]. Of course, this option only applies where the local court has adequate facilities [R1.07(1)].
Such requests Form 1B: Request for Telephone or Video Conference must include reasons for the request [R1.07(2)] - which logically would include such things as witness or party inconvenience or health problems which militate against travel, and - in the case of a motion - simplicity of the matter. The primary consideration for the court in granting the request is the balance of convenience between the requester and any party resisting the request [R1.07(3)]. The judge presiding at the electronic conference may set aside or vary any previous order granting it [R1.07(5)].
The court clerk will send out notices regarding the timing of the conference and any necessary preliminary procedures [R1.07(4)]. Once all the parties have been properly connected and can hear each other, the hearing of a motion by telephone or video conferencing is usually identical in sequence to oral hearings (above). They can however be awkward and confusing as people cannot see the faces of the speakers to know who is speaking or how they are reacting to things. The best practice is to go slowly and to ask for clarification whenever needed.
The use of telephone and video hearings is a recent development in Ontario legal procedures, driven by a hope that they hold the potential for time and expense-saving. In my opinion they are highly alienating experiences for self-represented parties, leaving them dissatisfied and suspicious, and do little to nothing to save the courts and parties time and effort.
(d) Written Motion Hearing Procedures
Written motion procedures are essentially just court-designated schedules for the exchange of the motion materials described above for oral motions, and written argument.
Therefore parties should be familiar with the main motion procedures, with an emphasis on written advocacy skills such as clarity, brevity and being concise.
The most common written motion will be a damages assessment under the default judgment procedures (see Ch.9 "Default by Defendant").
5. Motion-Related Practice Tips
Motions can be time-consuming and expensive. It is best to avoid the need for them whenever possible. This is done by proper initial preparation, including:- Making sure pleadings are well and thoroughly prepared before issuance (ie. all parties, issues, material fact allegations and causes of action, etc are included) -to avoid the need for later amendments and to protect against motions striking pleadings. See Ch.8: "Pleadings".
- Do not miss time limits, especially for the filing of a Defence;
- Communicate (writing is best as your copy creates a record of the communications) with the other side in the case of problems or anticipated problems - both yours and their's. Most professional advocates are reasonable and appreciate civil and relevant communications. Even if the other side is being uncooperative, your record of good faith efforts can be presented to the judge at the end of the trial to argue for favourable cost treatment.
- remember that motions for some steps are not required if the other parties consent to the extending or shortening of time limits [R3.02(2)];
- motions are usually made a lot easier if the other party provides it's written "consent" to the court (see also s.11 "Procedural Changes on Consent", below). This should be negotiated well before the motion of scheduled to be argued - and even better before the motion materials are filed.
6. Nuisance Motions
(a) Overview
Like many court and administrative tribunals over the past 10 years or so, the Small Claims Court now has express authority to limit parties abusing its processes for improper purposes [R15.04]. To this end, a party may make a motion for an order "prohibiting the party from making any further motions in the action without leave (further permission) of the court." The grounds upon which such a motion may be granted are that the court is satisfied that the party has, by making numerous unmeritorious motions:- tried to delay the action;
- added to the costs of the action; or
- otherwise abused the process of the court.
Such motions will be rare and will likely be granted only after significant provocation. However as of 01 July 2014 additional nuisance-type authorities were granted to the court, as are explained in sub-sections (b) and (c) below.
For motions made in proceedings where the moving party has been declared a 'frivolous and vexatious litigant', see Ch.11, s.4(c).
(b) Stay or Dismissal of Motions at the Initiative of the Court
Additionally, with amendments in force 01 July 2014, the court itself may make Orders staying or dismissing motions "if the action appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process" [R12.02(3,7,8)]. Where such a situation is suspected, the court clerk is under a mandatory duty to notify the court that it could be subject of such an order [R12.02(9)].
The procedure for the making of such Orders is as follows [R12.02(4)]:- notice that the court is considering such an Order shall be sent to the plaintiff;
- the plaintiff has 20 days after receipt of the notice to file written submissions, which shall not exceed four pages in length;
- if no acceptable written submissions are filed, then the court may make such Order as it sees fit without further notice;
- however, if acceptable written submissions are filed, the court has discretion (ie. it may) to direct that the submissions be mailed to any other parties that it designates;
- if the plaintiff's written submissions are mailed to other parties, those other parties have 10 days from receipt to: (1) prepare and file responding written submissions with the court (again, not exceeding four pages in length), (2) to mail them to the plaintiff and (3), if requested by any other parties, to mail them to those other parties;
- any Order so made shall be mailed to all parties forthwith after it is made [R12.02(5)].
Note re Mailing of Written Submissions:
The references to 'mailing' of the written submissions above make it clear that this is not formal service, and as such an affidavit of service will not be required by the court when the submissions are filed with it. However such mailings are subject to the standard 'fifth day after mailing' rule, which deems when service is considered to have been made [R12.02(6)]. As well, mailing shall be made to the last address of the person (or their representative) that is known to the sender [R8.07(1)].
(c) Stay or Dismissal of Motion(s) on Motion to Amend or Strike
Additionally as of 01 July 2014, the court is given authority, in the course of a motion brought by a party seeking to amend or strike pleadings, to stay or dismiss motions [R12.02(2)2.1] and to impose such terms as are just in the course of such Orders [R12.02(2)3]. This authority logically appears to extend beyond staying and dismissing the current motion (which invoked the authority), and extends to other pending motions as well.
7. Adjournment of Motions
Parties seeking to adjourn (ie. delay) the motion hearing date may - before the motion hearing date - request the court to administratively (ie. without the need for a court attendence) adjourn the motion hearing if they file written consents to this effect from all other parties [R15.05]. Such requests will not be granted as a right, will be successful in the vast majority of cases.
Where written consent from the other parties is not forthcoming the party seeking the adjournment should contact the court clerk as to what procedure should be followed. A full motion with notice (as discussed above) may be required.
Where time is short before the hearing the party may have to attend the motion hearing, raising an adjournment as a preliminary matter. Unlike criminal courts, last minute adjournment motions by an unprepared party will not usually be met with much sympathy by the court without very good reason (eg. illness of a party or key witness). If such an adjournment is granted it may be accompanied by conditions such as costs (below) and the making of the new date "pre-emptory" (ie. mandatory) against the unprepared party.
Moving parties should always strive in time-limited circumstances to communicate fully with the other parties as to their intentions.
8. Pre-Commencement Motions
Section 1 of the Courts of Justice Act, which is the statute governing Ontario courts, states: "motion" means a motion in a proceeding or an INTENDED proceeding; This definition clearly intends that a motion may be brought even before a proceeding is initiated. As Small Claims actions are initiated by the filing and issuance of a Claim, such a motion would be brought before this is done.
Such a step is unusual. In the higher court it is occasionally done in order to conceal the identity of a party from the public, or to close the court file or courtroom from public access - for example in cases of sexual assault or incest lawsuits. See the discussion of this in Ch.14, s.4: "Trial: Trial Issues: Public Access and Media").
Another instance where it might be required is to obtain court approval of a settlement involving a person under disability (see chapter: "Parties") before a proceeding is commenced. There may be other circumstances in which such an order might be required, but they would be rare.
9. Costs on Motions
"Costs" are orders by a court to compensate a party for legal expenses in a proceeding. The court has jurisdiction to order costs against a party on a motion to a maximum of $100, to be exceeded only if there are "special circumstances" [R15.07]. This term is not otherwise defined and will be left to the court's interpretation and common sense. Bad faith behaviour by a party is something that might attract the court's use of this exception.
Disbursements are exempt from this $100 limit and will generally be awarded at full value.
For general principles that courts will apply in awarding costs and disbursements, see Ch.14 "Trial: Costs".
A court may order that costs of a motion be paid immediately, and can impose procedural consequences against a party if they do not comply promptly.
10. Withdrawal of Motions
Courts are on guard to protect parties who have invested significant effort in responding to motions. Therefore, once a motion has been made, it may not be withdrawn without [R15.06]:- all the other parties have provided written consents for this;
or
- leave (permission) of the court.
Responding parties will sometimes withhold consent to withdraw a motion unless a fixed figure for costs is agreed on (and usually paid immediately).
Similarly, where consent to a withdrawal is not forthcoming, the court's primary concern in giving leave will be the amount of effort and expense invested by the responding part/ies - and whether THEY are withholding consent to the withdrawal unreasonably. Parties not consenting to the withdrawal who make excessive cost demands can be expected to be met with an unhappy court.
11. Procedural Changes on Consent
(a) Overview
Section 2(e) above (Motions "On Consent" or "Unopposed") explains the role of "consent" by other parties within motions that are brought. Those principles still apply to some motions, however amendments to the Small Claims Court Rules effective 01 July 2006 (Reg 78/06) have "codified" procedures to be used when a party wants any of the below-listed procedural changes and where all the other parties consent (except parties noted in default: see Ch.9 "Default by Defendant").
Such procedural changes are now available by over-the-counter clerk's order [R11.2.01(1)], if proper materials are served and filed with the court.
(b) Where Available
The procedural changes to which these new rules apply are [R11.2.01(1)]:- amending a claim or defence less than 30 days before the originally-scheduled trial date (see Ch.8 "Pleadings: Amendment");
- adding, deleting or substituting a party less than 30 days before the originally-scheduled trial date (see Ch.10 "Pre-trial Proceedings: Joinder");
- setting aside collection proceedings that have not yet been completed or default proceedings (see Ch.9 "Default by Defendant: Motion to Set Aside Default Proceedings");
- restoring an action to the trial list that was dismissed against a plaintiff for "abandonment" (see Ch.9A: "Default by Plaintiff");
- noting that a judgment or settlement has been satisfied;
- dismissing an action.
Note that while extending or shortening time for procedural steps is not one of the changes covered by these rules (see Ch.7 "Time Limits" and s.2(e) above), HOWEVER the Consent forms (below) have included this change in theit text. As such parties should feel comfortable using this procedure for the purpose of extending or shortening time limits.
(c) Materials to Obtain and File
Consent must be obtained by signature of all parties (including any to be added, deleted or substituted by the request) on the following form:
Form 11.2A "Request for Clerk's Order
This form calls for verification that:- no party that would be affected by the order is under disability (see Ch.4 "Parties") [R11.1.01(1)2]; and
- that the consenting parties have each received a copy of the Request for Clerk's Order [R11.2.01(1)2].
The completed "Request for Clerk's Order" should then be filed with the court clerk.
(d) Amendment of Claim or Defence Where Defendant Noted in Default
The situation respecting defendants noted in default (see Ch.9 "Default By Defendant") is a bit more complicated. While defendants noted in default are not "entitled to notice of any step in the proceeding and need not be served with any other document" [R11.05(3)], there is an exception to this rule for "amendment(s) of claim or defence". Therefore the best position appears to be that the Request for Clerk's Order should be served on defendants noted in default where the procedural change sought is amending a claim or defence. However, while service of the materials in such a case appears to be required, the lack (or even refusal) of consent from a defendant noted in default would appear to be irrelevant unless they promptly move to set aside the default, because "any step in the proceeding may be taken without the consent of a defendant who has been noted in default" [R11.05(2)].
(e) Orders
A clerk's order under this rule may also address costs (generally see s.9 "Costs of a Motion", above).
The clerk shall serve any resulting orders on any parties that request them by email or by mail. If mail is requested the party must provide the court with a stamped, self-addressed envelope [R11.2.01(2-2.1)].
Where the order is one setting aside enforcement steps that have not yet been completed, the party who obtained the order shall also file copies of it with any courts where enforcement steps have been sought [R11.2.01(4)].
(f) Refusal of Order
If the clerk refuses to make the order requested, the clerk shall serve a copy of the request - with reasons for the refusal - "on all the parties" (presumably all the parties whose consent was originally requested as per "Whose Consent to Obtain", above) [R11.2.01(3)].
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