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Small Claims Court - Striking Pleadings

. Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione

In Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione (Div Court, 2023) the Divisional Court considered the test for R12.02 ['Motion to Strike out or Amend a Document'] under the Rules of the Small Claims Court:
[6] Rule 12.02(1) of the Small Claims Court provides:
Motion to Strike out or Amend a Document

12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

[36] There appears to be some debate about the correct test to be applied to a motion brought under Rule 12.02 of the Small Claims Court Rules. However, after reviewing the caselaw submitted by counsel and given that the Respondents’ motion to strike was made under Rule 12.02(1)(c) and not (a), in my view, the apt test is “no meaningful chance of success” as was held in O’Brien v. Ottawa Hospital, 2011 O.J. No. 66 (Div. Ct.), at paras. 14 and 16.

[37] This was also effectively the test described by the Ontario Court of Appeal in Van de Vrande v. Butkowsky, 2010 ONCA 230. At para. 19 of that decision, the Court of Appeal discussed the difference between Rule 12.02 and Rules 20 and 21 of the Rules of Civil Procedure, as follows:
Conceptually, I view rule 12.02 as being situated somewhere between the Rules 20 and 21 of the Rules of Civil Procedure. It is not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in Rule 20 of the Rules of Civil Procedure where the responding party must put his “best foot forward”. It is more akin to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be “inflammatory”, a “waste of time” or a “nuisance”.
The Court of Appeal then went on to hold that it saw no basis to interfere with the motion judge’s findings and conclusions that, in applying Rule 12.02(1)(c), the claims asserted had “no chance of success” and ought to be struck (paras. 23, 24 and 26).
. Ramlochan v. Somodi

In Ramlochan v. Somodi (Div Court, 2023) the Divisional Court comments on trial practice in a non-suit motion, here in the context of Small Claims Court:
[28] The Appellant’s submission appears to relate to the deputy judge allowing Mr. Siracusa to bring the nonsuit motion during the trial. However, a nonsuit motion is generally brought by the defendant at the close of the plaintiff’s evidence to dismiss the action on the ground that the plaintiff has failed to make out a case for the defendant to answer: FL Receivables Trust 2002-A v. Cobrand Foods Ltd., 2007 ONCA 425, at para. 12. There was no unfairness in the deputy judge hearing the nonsuit motion.
. Mundenchira Inc., et al v. Punnasseril et al

In Mundenchira Inc., et al v. Punnasseril et al (Div Ct, 2021) the Divisional Court considered the jurisdiction of the Small Claims Court to entertain a non-suit motion (the court did this without apparently mentioning R12.02):
[28] The Appellants argue that the Small Claims Court does not have the jurisdiction to hear a motion for non-suit.

[29] I disagree. The Small Claims Court is a statutory court that derives its jurisdiction solely from the Courts of Justice Act, R.S.O. 1990, c.C.43. S. 23 of the Courts of Justice Act states specifically that the Small Claims Court has jurisdiction in any action for the payment of money or the recovery of property that does not exceed the prescribed limit. Clearly, the Appellant’s claim was for the recovery of money within the prescribed limit, and thus was properly before that court.

[30] Rule 15, of the Small Claims Court Rules also provide for motions. Usually they are on notice, but the court can dispense with notice if the circumstances of the motion make it not necessary (r. 15.03), or if the court finds that it is in the interest of justice (r. 2.02) to dispense with notice. Of note, is that the Appellants did not raise the issue of notice at the trial, not did they cite lack of notice as a ground of appeal.

[31] Finally, the history of the Small Claims Court is one of progressive development toward providing increased access to justice. The Small Claims Court is a place where people can have ready and inexpensive access to civil justice. Procedures are simpler and matters are decided in a summary way under relaxed rules of evidence: Grover v Hodgins, 2011 ONCA 72, 103 O.R. (3d) 721, at 46-47.

[32] Accordingly, I find that the hearing of a motion for a non-suit is within the jurisdiction of a Small Claims Court’s Deputy Judge and was properly heard here.

B. Legal Test for Motion for Non-Suit

[33] The Appellants argue that the Deputy Judge made an error in law by applying the incorrect legal test in the motion for non-suit.

[34] I agree. A motion for “non-suit” refers to a motion brought by the Defendant at the close of the Plaintiff’s evidence to dismiss the action on the ground that the Plaintiff has failed to make out a case for the Defendant to answer. In responding, the Plaintiff must show on this motion that it put forward a prima facie case which, if believed, would allow the trial judge to decide in its favour: FL Receivables Trust 2002-A, at para. 12, 15.

[35] When considering a motion for non-suit, a judge must take into consideration the Plaintiff’s most favourable facts from the evidence led at trial, as well as all supporting inferences. The judge must then decide whether the inferences that the Plaintiff seeks in their favour can be drawn from the evidence adduced if the trier of fact chose to accept it. In order to set aside the granting of a non-suit, the Appellant must show that there is evidence which, if believed, would form the basis for a prima facie case: Calvin Forest Products v. Tembec Inc., 2006 CanLII 12291 (ON CA), 208 O.A.C. 336 (C.A.) at para. 13-14, citing Sopinka, Lederman, and Bryant in The Law of Evidence (2nd ed.).

[36] On a motion for non-suit, the trial judge undertakes a limited inquiry. If the Plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. If assessing whether the Plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign the most favourable meaning to the evidence capable of giving rise to the competing inferences: FL Receivables, at para. 34-35.


[39] If a Defendant moves for a non-suit, they must elect whether they will call any evidence. If they elect to call evidence, then the trial judge will reserve their judgment until the end of the case. If the Defendant elects not to call any evidence, then the judge should rule on the motion immediately after it is argued: See FL Receivables, at para. 13.


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Last modified: 31-01-24
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