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To Return to Earlier Part of Chapter
3. Service Method Required by Type of Document
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CLAIM (Original and Defendant's Claim)
(done by plaintiff)
. Personal Service [R8.02]
. Alternative to personal service on person at residence [R8.02(2)], on a corporation [R8.03(3)], or on solicitor [R8.03(5)]
. Alternative to personal service by registered mail or courier (but requires signature back) [R8.03(7), not under R8.07]
- these rules apply to Defendant's Claims as well [R10.02]
- service of a original plaintiff's Claim (or a Defendant's Claim) must be done or arranged by the plaintiff, it is NOT done by the court.
- must be done within 6 months of issuance of the claim, subject to extension by the court at any time [R8.01(2)].
- note that when suing a partnership or a sole proprietorship, you may also want to serve a "Notice to Alleged Partner" or "Notice to Alleged Sole Proprietor" at the same time (see Ch.4 "Parties") [R5.03(1)].
- Mail service under R8.03(7) is "effective on the date on which receipt of the copy of the claim is verified by signature, as shown in a delivery confirmation provided by or obtained from Canada Post or the commercial courier" [R8.03(8)].
____________________________________________________________
DEFENCE
(done by party)
. mail
. courier
. email
. personal service
. alternative to personal service [R8.01(14)]
- applies to Defences to Defendant's Claims as well [R10.03]
(see Ch.8: "Pleadings: Defences")
____________________________________________________________
AMENDED CLAIMS AND DEFENCES
(done by amending party)
. mail
. courier
. email
. personal service
. alternative to personal service [R12.01(2)][R8.01(14)]
- This includes Amendments to "Defendant's Claims" and to "Defences to Defendant's Claims"
- Amended pleadings (ie. Claim or Defence) should be served on all parties in default as well.
- Service should be made at least 30 days before originally scheduled trial, unless the court orders otherwise.
- Where an amendment to a claim made at trial adds a party to the proceeding, the court may dispense with service [presumably only if the opposing party is present and prepared to proceed: R12.01(4)]
(see Ch.8: "Pleadings: Amendments to Pleadings")
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DEFAULT JUDGMENT
(done by court clerk)
. mail
. email [R8.01(4)]
- served on all parties named in the claim (ie. any co-plaintiffs and ALL defendants, even if noted in default)
(see Ch.9: "Default by Defendant: Default Judgment")
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ASSESSMENT ORDER
(done by court clerk)
. mail [R8.01(5)][R11.03(2)]
- will be served to the party making an assessment motion in writing by the court clerk IF the party provides a stamped, self-addressed envelope with the notice of motion
(see Ch.9: "Default by Defendant: Damage Assessments")
____________________________________________________________
SETTLEMENT CONFERENCE ORDER
(done by court clerk)
. mail
. email [R8.01(6)]
- will be served on all parties that did NOT attend the settlement conference (those that did attend may want to request copies from the clerk, to be clear as to the terms of any such orders)
(see Ch.11: "Pre-Trial Proceedings: Settlement Conferences")
____________________________________________________________
SUMMONS TO WITNESS
(done by party calling witness)
. Personal Service [R8.01(7)] [R18.03(3)(4)]
- to be served at least 10 days before the trial date; summons must be accompanied by required witness attendence fees
- must also be served on all parties at same time [R18.03(5)]
(see Ch.15: "Evidence: Summons to Witness")
____________________________________________________________
NOTICE OF GARNISHMENT
(done by creditor)
. mail
. courier
. personal service
. alternative to personal service [R8.01(8)(9)] [R20.08(6)]
- on garnishee, WITH a garnishee's statement, AND
- on debtor, WITH sworn Affidavit of Enforcement Request, within five days after service on the garnishee
(see Ch.16: "Collection: Garnishment")
____________________________________________________________
NOTICE OF GARNISHMENT HEARING
(done by party requesting hearing)
. mail
. courier
. personal service
. alternative to personal service [R8.01(9)] [R20.08(15.1)]
- to the creditor, debtor, garnishee, co-owner of debt (if any), and "any interested party"
- hearing date to be obtained from court clerk
(see Ch.16: "Collection: Garnishment")
____________________________________________________________
NOTICE OF EXAMINATION
(done by creditor)
. personal service
. alternative to personal service
[R8.01(10)(11)(12)] [R20.10(3)]
- to the debtor or the person to be examined;
- must be served 30 days or more before date of examination;
- must be filed, with proof of service, at least three days before the examination;
- if service is on debtor who is an individual (ie. not a corporation or partnership) service must be accompanied by a blank Financial Information Form
(see Ch.16: "Collection: Debtor Examination").
____________________________________________________________
NOTICE OF CONTEMPT HEARING
(done by creditor)
. Personal service [R8.01(13)] [R20.11(3)]
- on debtor or "person to be examined" after failed examination
(see Ch.16: "Collection: Contempt Proceedings")
____________________________________________________________
NOTICE OF TRIAL
(done by court clerk)
. mail
. email [R16.01(2)]
(see Ch.14: "Trial: Notice of Trial")
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NOTICE OF TERMS OF PAYMENT HEARING
(done by court clerk)
. mail
. email [R9.03(4.1)]
(see Ch.8: "Pleadings: Defence: Admission of Liability and Proposal for Payment")
____________________________________________________________
NOTICE OF TERMINATION OF CONSOLIDATION ORDER
(done by court clerk)
. mail
. email [R20.09(11.1)]
(see Ch.16: "Collection: Consolidation Orders")
____________________________________________________________
OTHER DOCUMENTS
. mail
. email
. courier
. personal service
. alternative to personal service [R8.01(14)]
____________________________________________________________
4. Provincial Corporate and Business Names Searches
Ch.4: "Parties" has an extended discussion about practically determining who you want to sue and how to properly name them in a Claim.
To aid in this process, and in determining where to serve a party with documents, Ontario's Ministry of Government Services maintains Registries of business names, partnerships and Corporation Information ("ONBIS": "Ontario Business Information System"). These Registries, which are publically accessible (for a fee), can be very useful in determining who exactly to sue, what their legal and business names are, and where they can be served (eg. a "head office" or "place of business").
More information on what types of searches may be performed may be found at the Ministry's website:
Business Name and Corporate Information Searches
5. Proof of Service and Filing
Once service of a document has been performed, proof of service must be filed (filing is usually done by mail) with the court so that it can take formal notice of the document.
Proof of service of a document performed by or on behalf of a party is normally proven by filing an "affidavit of service" [R8.06]. An affidavit is a sworn statement, "commissioned" by a "commissioner of oaths" and signed by the person attesting to the truth of the statement in the presence of the commissioner. All lawyers and most court staff are commissioners of oaths, as are municipal clerks and many secretaries of law firms.
The affidavit should be accompanied by a copy of the document, unless it is a document that was issued by the court or otherwise already in the court record. Affidavits of service identify the document served by nature and date of document, and - particularly in cases of personal service - they also set out the details of service re date performed, how performed and any further details necessary to satisfy the court clerk that the document was properly served. The need to specify details of service in the affidavit of service is why detailed notes of service attempts should be kept.
Form 8A: Affidavit of Service
Note that even where a lawyer has endorsed service of the document as per R8.03(5), an affidavit of service may still be required for filing [R8.06]. Inquire as to local practice with the court clerk.
6. Document Failing to Come to Notice of Party Served
The whole purpose of service is to bring the contents of the document to the attention or "notice" of the party being served. Satisfaction of the formal service requirements results in a presumption that service has been effected at the time determined by the rules.
However on some occasions the "served" party may still argue that the document only came to their notice late - or not at all. For instance, this can be done when making motions to [R8.10]:- set aside the consequences of default (see Ch.9: "Default Proceedings")
- extend time (for serving of filing a document)[R3.02(2)] (see Ch.7: "Time Limits");
- obtain an adjournment (see Ch.14, s.4(d) "Trial: Trial Issues: Adjournments").
This is not an oppourtunity to excuse delay or bad faith behaviour by a party. If possible (sometimes it's not), there should be some positive statement of evidence presented to explain why the the document did not come to the attention of the person "served". An example might be - in the case of alternative service at a person's residence - of the failure of the adult to whom the document was given to in turn give the document to the party. Sometimes addresses change (though see s.9 below). Sometimes mail goes missing. Other examples, dependent on the circumstances, can be imagined.
Obviously, the stronger the evidence explaining the failure of notice the stronger the case for relief. On such a motion, affidavits explaining the lateness should be sought from any other persons involved.
On such motions courts are particularly concerned to see that the party seeking to correct the situation moved quickly to do so. Such motions should be brought promptly.
Before making a motion though the party should try to obtain the written consent of the other partie/s to extend time or lift the default. Note that time limits under the Rules for serving and filing documents may be extended [R3.02(2)] by the filing of written consent/s from the parties to do so.
If a Notice of Trial is not received in time to prepare for it, note that an adjournment of trial date cannot automatically be obtained even with consent from the other parties - although such consent would usually greatly aid such a request. The earlier (ie. well before trial) such consent is filed with the court the more likely it is that the matter will be dealt with administratively within the court and not require a court attendence. Late requests for trial adjournments may be refused by the court even with consent (see now the new [01 July 2006] procedures for adjournments: Ch.14, s.4(d) "Trial: Trial Issues: Adjournments").
In any case, seeking such written consent should be attempted by letter before (or simultaneously with) the bringing of a motion even if it is not likely forthcoming, as courts may wish to punish with a cost award those who oppose reasonable motions[R15.02(1)]. You can bring your request letter to court to give the judge AFTER the motion is argued (this is court protocol, so as to avoid prejudicing the judge's mind before they make their decision on the main motion issue).
7. Validating Service
As stated, the purpose of service is to bring the contents of the document to the attention or "notice" of the party being served in a timely fashion. Of course this can happen even when notice is technically faulty - or not made at all. In such cases the courts are properly concerned with whether full and timely notice of the document came to a party, not with the technicalities.
Where convinced that actual timely notice of the document came to a party's attention, the court can dispense with any further service efforts and by order "validate" the practical "service" that was made. An example of this might be where a document went astray in the mail but the other party had attended the court office and obtained a copy themselves.
The Superior Court's "Rules of Civil Procedure" also allow "validation" of service where a party is attempting to evade service. It is possible that a Small Claims judge might make such an order under their general authority under R2.02 - though they might also just hold previous service efforts as legally adequate as "substituted service": See section 2(f) above.
8. Duty to Advise of Change of Address
A new rule, effective 01 July 2006 (Reg 78/06) now requires that any party whose address for service has changed to provide notice of the change to all the other parties and the court within seven days after the change [R8.09]. This would however exclude parties noted in default, who are not entitled to service of any further documents in the proceeding [R11.05(2)].
9. Electronic Document and Communications
(a) Temporary(?) COVID Procedures
The COVID virus hit the courts hard, and the Ontario Small Claims Court has been no exception. In the first 'COVID year' [15 March 2020 to 15 March 2021] only 6 cases were issued, and the courts were essentially shut down. At the date of writing [20 June 2021], attempts are advancing through regulation amendments, court practice modifications and practical software infrastructure to expand what had been a long-standing (since 2014, and before than to 2006) electronic pilot project in the court. It's very obvious that the court has turned to this long-delayed electronic project to re-start it's self as a relevant factor in the Ontario legal system.
This 20 June updating of the Small Claims Court (Ontario) Guide is written in the midst of these changes, and it is essential to locate them in context. Basically - the traditional court procedures remain, so if a party wishes to use them (ie. paper filings, affidavit of service, etc) and if you can find an open physical court to accept/issue them, then the law remains to allow this. In parallel with this, the 'e-procedures' have been (quite understandably) relied upon to bear the near-complete burden of what court activity there is - or more accurately, what court activity is hoped-for in the immediate future. Newest among these (at 24 May 2021) is the new internet 'portal' system for filing and issuing documents.
The result is a strange and unique legal co-existence of the two, with government and court authorities not knowing which way the COVID-winds will take us. The traditional procedures remain 'on the books' in the event that they may still return to some modicum of relevance (repealing them would make no sense, yet) - and the new e-procedures struggle to find a workable, yet fair, alternative. If the COVID crisis ends, e-procedures (if even slightly successful) will almost certainly be preserved as part of whatever new system we end up with. Email by the courts (parties were way ahead on this), pdf document use (for service, filing and issuance), ZOOM and telephone hearings and more will persist, perhaps even dominate.
The e-situation is further complicated by the already-occuring (ie. pre-COVID) integration of some electronic techniques in the Small Claims Court, and tribunals generally. This is what I call the 'easy' technology, as it actually reduces the infrastructure burden on the management of the institutions through less need for real estate rental investment and travel expenses. While all Ontario courts and tribunals have resisted email and written hearings, they do love telephones - especially the technology (now so widespread) that allow audio amplification and multi-party communications. It is a cynical explanation of this technology that it allows deputy-judges (and tribunal members generally) to conduct hearings while sitting comfortably in their own offices (and even that is an assumption these days with people working from home), for that attributes too much influence to deputy-judges and tribunal members over that of financially-prudent managers.
The new infrastructure challenge being posed by COVID is that it requires the institutions themselves to substantially reform, rather than past reforms which they have down-loaded onto parties - or just outright axed in the name of fiscal restraint - ie. the 'easy' reforms. COVID is forcing the courts and tribunals to engage in something that the parties have long-since done, to shift to the 'brave new world' of electronic document-management. They're not doing it well or quickly.
(b) Important Clarification re Court Delivery of Material to Parties
With amendments made at 01 March 2021 [in Reg 108/21] provisions were made for the email delivery of 'documents' (“document” includes data and information in electronic form [R1.02(1)]) and 'communications' by the court to parties. The term 'document' is very broad and can encompass any e-document (and of course any paper document) but the amendments include a separate category of 'communications', which are not defined.
On reviewing the amendments it is apparent that 'documents' corresponds to formal procedural documents, both notices and court-issued documents, while 'communications' refers to what we would normally call 'letters' in paper form. With the addition of all or any of these to electronic format (ie. email), the Civil Rules Committee [CJA 66(1)] and the Attorney General have felt it necessary to authorize expressly the e-delivery of such documents and communications. So while we used to focus on the service, filing and issuance of documents - all procedures which addressed acts precipitated by the parties - we now have greater focus on court-initiated e-documents and e-communications which, in their paper form, used to be just assumed to be done (usually by mail).
I felt that this aspect of the amended rules needed clarification as they are almost fetishistic about the need to authorize these already-established procedures in electronic mode rather than just relying on common sense in the use of a new communications medium. For example, R1.05.1(3) - which authorizes that "(a) document issued in accordance with subrule (2) is deemed to have been issued by the Small Claims Court" - seems quite unnecessary. Who else would it have been issued by?
(c) Email Addresses and E-Signatures
Email addresses are mandatory for lawyers and paralegals (if not provided, then the email address published with the LSO may be used), but not for self-representing parties [R1.05.2(1-3), R8.08(2)] - although if a self-represented person has previously provided an email address, that email address may be used for these purposes.
Electronic signatures may be used for such e-documents or e-communications, including judicial or clerk signatures [R1.05.2(4)], and are defined as "electronic information that a person creates or adopts in order to sign a document and that is in, attached to or associated with the document" [R1.05.2(5)]. Similarly, in the case of the filing or issuance of documents using the authorized software, the requirement that "a person’s signature is satisfied if the authorized software indicates on the document that the document has been electronically filed or issued, as the case may be" [R1.05.1(4)].
(d) Electronic Filing and Issuance of Documents
As is explained with the 'portal' system in s.10 [immediately following], electronic filing and issuance of court documents, where authorized, shall be done by use of "the software authorized by the Ministry of the Attorney General". E-issuance may be done "by the clerk dating, signing and sealing with an electronic version of the seal of the court a copy of the document in electronic format" [R1.05.1(1-3)].
The date of such electronic filing or issuance shall be the date indicated by either the authorized software or the clerk, as the case may be [R1.05.1(5)] - except for the SCCSO portal, where the date and time indicated on the 'clerk’s confirmation' governs [R1.05.4(7,12)].
10. The Filing and Issuing Portals (SCCES and SCCSO)
(a) Overview
Following on similar e-'portals' used in the Superior Court [see RCP R4.05.1 and R4.05.2], the Small Claims Court has (as of 24 May 2021 by Reg 249/21) launched it's own internet-based filing and issuance 'portals' system for court documents. There are two such portals, the "Small Claims Court E-Filing Service Portal" (SCCESP) [R1.05.3(1)] and the "Small Claims Court Submissions Online Portal" (SCCSOP) [R1.05.4(1)].
File small claims court documents online
Both portals require parties (or their counsel) to consent to use of this e-system by providing an email address at which they agree to accept documents from the court electronically [R1.05.3(2), R1.05.4(2)] (otherwise they can use the old paper system).
The main difference between the two portals is that the SCCESP generally allows parties to file 'as-of-right', while the SCCSOP requires a clerk to approve the documents submitted for filing [R1.05.4(5)] and/or issuance [R1.05.4(10)] before they are accepted.
Otherwise, there doesn't appear to be much pattern to the question of 'which portal to use?' (ie. which different court documents can be dealt with by which portal). This is likely a function of technical limitations coupled with COVID-induced pressure. We are all required to do the best we can with this transitory system.
As you consider this, harken back to 'how it used to be' (or if you still do paper filings, still is). Recall the distinction between a document being 'filed' with the court (accepted for inclusion in the court file) and 'issued' by the court (the formal process where a clerk 'creates' and approves a court document, even though the drafting of the document is normally done by a party). In the 'olden' pre-COVID times the process of filing and issuance of a document (those that required issuance, not all did), was done by showing up at the court office with two or more copies of clerk-acceptable documents. The clerk reviewed them (grunting affirmatively, if you're lucky), and then stamping them with something official - keeping one copy and giving you the rest. Now, with e-documents, the 'filing' and 'issuing' stages are much more separate and distinct.
(b) Documents Allowed through the SCCES Portal
. Plaintiff's Claim Filing and Issuance
The SCCESP allows plaintiff's claims (a file originating document) to be filed, with the following exceptions [R1.05.3(3)]:. any interest payable in relation to the claim is no greater than 35 per cent per year; and
. the defendant is not a person under disability. Plaintiff's claims may, as of right, be issued through the SCCESP [R1.05.3(6)1].
References to 'plaintiff's claim' (for both portals), do not apply to defendant's claims [R10.05(3)].
. Other Documents Filing
If the plaintiff’s claim was issued through the SCCESP, and all other case documents to date have been filed through the SCCESP, then the following documents may be filed through the SCCESP [R1.05.3(4,5)]:- amended plaintiff’s claim (Form 7A), if the claim being amended has not yet been served;
- affidavit of service (Form 8A);
- request to clerk (Form 9B) to note in default or for an assessment hearing;
- affidavit for jurisdiction (Form 11A);
- default judgment (Form 11B);
- notice of discontinued claim (Form 11.3A);
- notice of motion and supporting affidavit (Form 15A) requesting a motion in writing for an assessment of damages.
. Default Judgment Issuance
Default judgments (Form 11B) may, as of right, be issued through the SCCESP [R1.05.3(6)1].
(c) Documents Allowed through the SCCOS Portal
. Whatever the Software Allows! (The 'Software Rule')
The issue of 'which documents' may be filed or issued with the SCCSO is frankly quite unique in Ontario law, at least in my experience. Rather than the 'allowable court documents' being determined by a choice based on the administrative capacities and preferences of the court itself, the Rules here actually make it a 'software abilities' choice. That is, quite literally, that the documents that will be accepted by the SCCOS portal are those that the SCCOS software will accept.
It took me a while to figure this out. It all turns on the phrasing: "if the Small Claims Court Submissions Online Portal provides for the electronic filing/issuance of the document" in R1.05.4(3,8), which 'set out' what documents the SCCSO portal can accept. Remember, under these Rule amendments [R1.05.4(1)], the "'Small Claims Court Submissions Online Portal' means the software authorized by the Ministry of the Attorney General for the purposes of this rule" - they are the same literal thing. So as the software undergoes upgrades and expands it's capacity, so does the law's reach. This has to be some sort of qualitative shift in law-making.
It's not as stark as that (though pretty close), recall that a main difference between the SCCES portal (above), and the SCCSO portal is that the latter require a clerk's acceptance for filing and issuance of the e-documents [R1.05.4(5,10,14)], which seems to add a human element to the process. But this limitation can be expected to be directed to the clerk ensuring that documents aren't grossly mis-drafted or otherwise an abuse of process, not to what 'types' of documents the Rules will accept. It's as though the law changes hand-in-hand with the added features of the latest Adobe Pro DC version - which isn't far from the reality of things when you consider the Superior Court's Caselines system!
Brave new world time - (again)!
. Exclusions
There are two exclusions from the above 'software rule' (both for filing and for issuance) [R1.05.4(4,9)]:. a plaintiff’s claim (Form 7A), unless the prescribed filing fee is not required to be paid [as with a 'fee waiver': see Ch.18, s.6 "Fee Waivers"]; or
. a document filed for the purposes of rule 20.07 (writ of seizure and sale of land). References to 'plaintiff's claim' (for both portals), do not apply to defendant's claims [R10.05(3)].
. Procedures
If the clerk accepts the document for filing, the clerk shall send (SS: the party filing) confirmation of the filing by email [R1.05.4(6)]. Similarly, in the case of issuance, the clerk shall send (SS: the party seeking issuance) confirmation of the issuance filing by email, together with the issued document [R1.05.4(11)].
. Deemed Delivery Date of Documents for Filing and Issuance
The 'normal' electronic rule for the deemed delivery date and time for filing and issuing documents (ie. the date indicated by the 'authorized' software or by the clerk; next business day if after business hours) [set out in Ch.6, s.9(e) "Electronic Filing and Issuance of Documents"; R1.05.1(5-6)], is varied for the SCCOS portal. For this portal a document accepted by the clerk for filing (or issuance) is "considered to have been filed (or issued) on the day indicated in the clerk’s confirmation" [R1.05.4(7,12)]. Briefly, the clerk's confirmation date and time rules.
"The clerk may request from a person written clarification with respect to a document that is submitted for filing or issuance, and the person shall provide the clarification in the manner specified by the clerk" [R1.05.4(13)].
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