|
Small Claims Court - Orders. GD Construction & Project Management Inc. v. Kiya Sunrise Electrical Ltd.
In GD Construction & Project Management Inc. v. Kiya Sunrise Electrical Ltd. (Ont Div Ct, 2026) the Ontario Divisional Court considered the remedial options available to an Small Claims appeal court when setting aside an order, here an order to strike pleadings and grant default judgment:[11] The trial judge was required to consider the appellants’ request to set aside the striking of pleadings. Had the trial judge done so, she could have made any of several possible orders, such as:(a) declining to set aside the order;
(b) setting aside the order and adjourning the trial;
(c) setting aside the order and standing the matter down for a further period to permit the appellant to try to get their witnesses to court for the trial;
(d) setting aside the order, but not permitting the appellants to pursue their affirmative defence of the claims (requiring the respondents to prove their claims and not just their damages);
(e) not setting aside the order, and carrying on with the trial, but permitting the appellants’ paralegal to test the evidence adduced on the assessment by way of cross-examination and final submissions. [12] There may well have been other orders the trial judge could have made. Whatever order the trial judge might have made, the trial judge should have considered the appellants’ paralegal’s request to set aside the trial ruling and then should have exercised discretion in accordance with the applicable principles for setting aside an order striking pleadings and granting default judgment, given all the circumstances. . Hartman v. ABS Hospitality Inc.
In Hartman v. ABS Hospitality Inc. (Div Ct, 2022) the Divisional Court made the useful Small Claims Court practice point that formal orders are not taken out, rather parties relies on the written endorsement:[9] In Small Claims Court, the judge’s order is written by hand on a form entitled “Endorsement Record/Order of the Court – fiche d’inscription/ordonnance judiciaire.” The distinction between and endorsement and an order is not as sharp as it is in Superior Court, where a formal order is issued and entered based on the judge’s endorsement. As in Superior Court, the appeal is from the order, not the reasons. I do not take from the endorsement that the judge made an order for which she was not asked.
|
