Simon's Megalomaniacal Legal Resources

Small Claims Court (Ontario) Legal Guide
(20 June 2021)

Chapter 14 - Trial

1. Overview
   
2. Scheduling of Trial
   
3. Trial Sequence
   (a) Overview
   (b) The Physical Court
   (c) Protocol
   (d) Presentation of Evidence
   . Caution
   . Case Presentation Basics
   . Witness Basics
   . Direct Examination
   . Cross Examination
   . Re-Examination
   . Rebuttal Evidence
   (e) Liability and Remedy Submissions
   (f) Costs Submissions
   
4. Trial Issues
   (a) Overview
   (b) Pre-trial Conference Report and Orders
   (c) Non-attendence by a Party or Parties
   (d) Adjournments
   (e) Public Access and Media
   i. Open Hearings and Exceptions
   ii. Recordings and Exceptions
   (f) Use of Case Law Authorities
   
5. Orders and Judgments
   (a) Overview
   (b) Orders
   (c) Judgments
   i. Overview
   ii. Family Law Act Damages
   iii. Periodic Payments
   iv. Damages Assessed to Date of Judgment
   v. Pre-payment of Damages Not to be Disclosed
   vi. Foreign Currency Orders
   (c1) Reasons for Decision
   (d) Satisfaction of Orders and Judgments
   
6. Interest
   (a) Overview
   (b) Pre-Judgment Interest
   . Overview
   . A Note About "Damages" Terminology
   . Pecuniary (General) Damages Calculation: Example
   . Past Pecuniary Damages (Special Damages)
   . Past Pecuniary Damages (Special Damages): Example
   . "Non-Pecuniary" Damages
   . Where No Pre-Judgment Interest Applies
   (c) Post-Judgment Interest
   (d) Judicial Discretion to Vary Interest Treatment
   
7. Costs
   (a) Overview
   (b) Regular Small Claims Costs Rules
   (c) Overall "Costs Cap"
   (d) Consequences of Refusing a Reasonable Offer
   (e) Disbursements
   
8. New Trial

________________________________________

1. Overview

The trial of course is the heart of any lawsuit. That said, most lawsuits that are started do not make it all the way to trial, being abandoned or settled on the way.

Court procedures are designed to encourage resolution of cases before trial, through such things as settlement conferences and cost sanctions for advancing unmeritorious cases or cases that should have been settled. Judges in Small Claims Court also tend to give strong signals to parties just before a trial in order to encourage settlement, or at least to narrow issues.

When a trial does go ahead, forget everything you ever saw on television and try to stick to what you have learned about the process from this program and other texts or source law. In particular, be familiar with this Chapter and the chapter on "Evidence" well before the actual trial takes place as there are things you must do well in advance to prepare the trial and evidence..

Trials - while not a perfect process - have evolved as a process to reach the closest to "truth" that can be achieved. The judge's role is to supervise these processes, to reach findings of fact, and to apply the law. You as a party have a role too, and should learn what it is.


2. Scheduling of Trial

Before amendments made 01 July 2006, scheduling of trial was automatic when there was no pre-trial conference in the case; when there was a pre-trial conference the scheduling was triggered by the request of a party made to the court office after the conference was conducted.

Now that pre-trial conferences are replaced with "settlement conferences" that are mandatory in all cases, trials will be scheduled [R16.01(1)]:

• after "a" (ie. one) settlement conference has been conducted;
  
  
• when a party makes a request to fix a trial date, AND pays the required fee.

Note:
As there can be more than one "settlement conference" in a case (see Ch.11 "Pre-trial Proceedings: Settlement Conferences") it appears to be technically possible to request the fixing of a trial date after only one conference has been conducted. However such a practice would in most cases be counter-productive and possibly an unnecessary expense, as there is still potential that the case will be settled at the settlement conference.

Note that at or shortly after a settlement conference has been conducted, the clerk will give notice to the parties stating that, unless the matter is resolved within 30 days after the settlement conference, the party wishing to proceed (usually the plaintiff) must request the setting of a trial date and pay the required fee for this [R13.07]. It is likely that most court clerks will hold off on this notice until all settlement conferences anticipated have been conducted.

Notice of trial date and time will be sent by the court clerk to the parties by mail or email [R16.01(2)].

Some courts schedule cases in the evening, to facilitate litigants' work schedules. Inquire of the court as to times available.


3. Trial Sequence

(a) Overview

A trial has three main functions: hearing evidence and finding facts thereupon, applying law, and assessing damages, if any. As trials in Small Claims Court are held without juries [CJA s.108], all of these functions are performed by the judge or deputy-judge who hears the case.

The Courts of Justice Act describes the approach of the court as follows:

s.25
The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.

People inexperienced with court processes (quite understandably) often fail to distinguish these quite separate steps. Probably the most common mistake made is to argue law or make submissions during the evidence stage of the trial.

(b) The Physical Court

Courthouses and courtrooms vary across the province. Some are old, huge and ornate and newer ones tend to be smaller and more austere. The layout of a typical courtroom is traditional and goes as follows:

• Judge's Bench: at back of courtroom, usually directly opposite the main public entry door.
  
  
• Counsel tables: one on each side facing the Judge's Bench. The one on the right is (usually) for the plaintiff, the one on the left for the defendant. When there are more parties they may sit back in the gallery or wherever they can be accomodated. Do not sit at the counsel table until your case is called.
  
  Some lawyers have the bad habit of leaving their stuff on the counsel table even when their case is not being presently heard. If you need space politely ask them to move it.
  
  
• Witness Box: usually on the judge's left hand side (some new courtrooms have been putting witness boxes behind the counsel tables, much to the annoyance of awyers who like to see the judge's face as they question witnesses)
  
  
• Reporter's station: usually there is a station for the court reporter to work directly in front of the judge. There may also be another seat somewhere where a ailiff sits, assisting as required.
  
  
• Gallery: unless closed by court order (see below "Public Access and Media", the public may view the proceedings. They sit in the "gallery" which is usually large area with benches opposite the Judge's Bench and usually right by the main public entry door. Newer courtrooms tend to have very small galleries.

(c) Protocol

Outside of each courtroom you should find a "docket list" which lists the cases that are scheduled for hearing in that courtroom that day. This is changed daily.

Upon entering the courtroom, you are expected to remove any non-religious headgear as a sign of respect for the court.

Call the judge "Your Honour", "Justice" or "sir/ma'am". Rise whenever you speak to the judge (unless of course you cannot do so easily).

Address yourself to the judge at all times except when questioning witnesses. When you are trying to communicate to someone else, such as another party, speak to them "through" the judge.

It is the practice one of the parties (any one) at the beginning of a trial to request, and courts to grant, a general order to exclude non-party witnesses from the courtroom while other witnesses are testifying. The idea is that you don't want witnesses hearing each other's evidence and then "changing their stories". The practice does not apply to parties who testify as they must be present to conduct the case - even if represented by counsel.

Lastly - if you get confused or are not sure about something - ASK. Judges and staff tend to be gruff on the outside as a developed form of self-protection from years of dealing with pushy and demanding people. Once they realize that you just need help (and aren't pushy and demanding) they tend to bend over backwards to help you - limited of course by their duty to treat all parties fairly.

(d) Presentation of Evidence

. Caution

What is described in this section is the sequence of events in a regular, traditional civil trial. The reader is warned that many Small Claims court judges adopt an aggressive, inquisitorial style with unrepresented litigants that will likely stray from this traditional pattern significantly.

Such judges may - particularly when they think a party is floundering - take over questioning themselves, poke and probe to get at what they feel are the key facts, and then re-state them back to the parties for confirmation. While the technique is very useful to shorten trial times in over-crowded courtrooms, and may be welcomed by inexperienced litigants, it does run the risk of going too far and stripping parties of the right to conduct their own case in the way that they see fit.

For instance, in Gothard v Ahmed [1999] OJ #2075 (QL) the Divisional Court, while ordering a new trial because an interventionist Small Claims court trial judge improperly limited the defendant's cross-examination and made disparaging remarks about a law student's skill, did endorse the trial judge intervening to assist a plaintiff with poor English skills. Further, in Kuzev v Roha (2007) OJ #1352 the Divisional Court supported a Small Claims trial judge who called a witness of their own initiative - a right normally exclusively delegated to the parties - as part of the court's duty to sometimes assist inexperienced parties.

In Arnone v. Amelio (Div Ct, 2013) the Divisional Court endorsed a deputy-judge's trial intervention directed at clarification of legal issues, ensuring that relevant documentation and other evidence was admitted, and even their intervention in cross-examination [paras. 22-23].

You can never be prepared for different judicial styles other than to know your case and your evidence, so the best that can be suggested is to be prepared to conduct the traditional form of trial. If nothing else it will impose some discipline on your thinking about the trial, which will likely be both appreciated by the court and highly useful to your case. Judges respect parties who honestly try, and they don't respect sloppiness and arrogance.

Case Note: Moore v. Apollo Health & Beauty Care (Ont CA, 2017)
In Moore v Apollo Health the Court of Appeal commented extensively on the role of judges (of all courts, including deputy-judges in Small Claims Courts) in this age of self-represented litigants. The Court of Appeal expressly endorsed judges asking limited questions on their own to clarify important issues in the case:

[41] The new reality of civil litigation in public courts is the significant number of parties who are not represented by a lawyer, but present their own cases. Presiding over a trial where a party is not represented by a lawyer poses distinct challenges for a trial judge, and also brings with it distinct responsibilities.

[42] Both the challenges and responsibilities are succinctly described in the Statement of Principles on Self-represented Litigants and Accused Persons (the “Statement”) issued by the Canadian Judicial Council in September 2006. The Supreme Court of Canada endorsed the Statement in Pintea v. Johns, 2017 SCC 23 (CanLII).

[43] The main challenge faced by a trial judge when a party is not represented by a lawyer lies in the difficulty of managing an adversarial proceeding when one party lacks formal training in the law and its procedures. As described by the Statement, at p. 3:

Self-represented persons are generally uninformed about their rights and about the consequences of choosing the options available to them; they may find court procedures complex, confusing and intimidating; and they may not have the knowledge or skills to participate actively and effectively in their own litigation.

[44] While self-represented persons vary in their degree of education and sophistication, I think it safe to say that most find court procedures “complex, confusing and intimidating.” That state of affairs gives rise to the responsibility of judges to meet the need of self-represented persons for “simplicity” and to provide “non-prejudicial and engaged case and courtroom management” to protect the equal rights of self-represented persons to be heard: Statement, pp. 4 and 6.

[45] The Statement, at p. 7, offers specific advice to judges about how to meet their responsibilities to self-represented persons in the courtroom environment:

Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. [Emphasis added.]

[46] In the present case, the trial judge did several things to discharge his responsibility to protect the right of the self-represented person to be heard. Ms. Moore had not prepared a formal calculation of damages to place into evidence. However, the trial judge: clarified that some of the documents appended to Ms. Moore’s Claim were ones she wanted put into evidence; drew on the resources of the court staff to make copies of the relevant documents; assisted Ms. Moore in marking them as formal exhibits; and asked questions to clarify some of the details of her claim for Unpaid Wages.

[47] However, the trial judge did not make sufficient inquiries before concluding Ms. Moore had abandoned her claim for Unpaid Wages. Where the evidence of a self-represented party raises a question in the trial judge’s mind about the specific relief the party is seeking, a trial judge must make the appropriate inquiries of the party to clarify the matter. Those inquiries must be made in a clear, unambiguous, and comprehensive way so that several results occur: (i) the trial judge is left in no doubt about the party’s position; (ii) the self-represented person clearly understands the legal implications of the critical choice she faces about whether to pursue or abandon a claim; and (iii) the self-represented person clearly understands from the trial judge which of her claims he will adjudicate.

[48] Deputy judges of the Small Claims Court operate under significant time and volume pressures. As well, they daily face the challenge of trying to modify an adversarial civil litigation process historically predicated on representation by counsel to the increase in self-representation by parties. Nevertheless, such is the new reality. And it often requires a trial judge to take the time to ask those few extra questions to nail down, with clarity for all, the claims of the self-represented person upon which he will adjudicate. Trial fairness requires no less.

. Case Presentation Basics

The presentation of evidence is sort of an organized "story-telling" conducted through a series of witnesses called by a party to "testify". When a party arranges for a particular witness to be there, either voluntarily or by summons (see chapter "Evidence"), then that witness is "their" witness.

The plaintiff goes first, calling all of their witnesses (each of whom can be cross-examined and re-examined as is explained below) and then "closing" their case. Then the defendant does the same. If there are any other parties the judge will advise when they should testify.

Cases involving Defendant's Claims (see Ch.8: "Pleadings") can get complicated and sometimes the court will want to split the case into different issues, necessitating calling witnesses more than once. Note that the court has discretion to require separate trials of the various claims [R10.04(2)], though it is preferrable to have them heard together [R10.04(1)]. The only exception to the judge's ability to separate trials is where a defendant alleges in a Defendant's Claim that a third party (ie. neither the original plaintiff or defendant) is liable in whole or part to indemnify (compensate) the defendant for the plaintiff's damages. In this case the third party may participate in the main action to dispute the plaintiff's claim[R10.04(3)], but only if they have filed a Defence to the Defendant's Claim [R10.04(3)].

An example of this would be where a defendant files a third party claim against an insurance company which has denied coverage to the defendant in the case. The insurance company would be entitled to dispute the defendant's liability in the main case.

Usually intermixed with the questions are requests by the party to the judge to "admit" into evidence various documents. Documents are usually introduced into evidence through witnesses who identify them at a point in their testimony where the document becomes relevant. This is normally done even if the documents have been pre-filed and served in accordance with document pre-filing rules (see the discussion of pre-trial documentary disclosure in ch.15: "Evidence") - although a judge may simply ask the other parti/es if they accept the "authenticity" of the served documents to save time. In any event, refer to the documents at a natural and logical time in the evidence narrative: remember you are presenting a story. With the judge's permission, you may have the witness quote key passages BRIEFLY from the documents as they become relevant - but do this sparingly or not at all.

Where affidavits or written testimonial statements are used in place of live witnesses (again, see cH.15: "Evidence") ask the judge if you should read them aloud or not.

. Witness Basics

With EACH witness called to testify, regardless of who has called them, the sequence of questioning is:

• Direct Examination: questions to the witness by whoever called them, or by that party's lawyer or agent.
  
  
• Cross-Examination: questions to the witness by other parties, or by those partyies' lawyers and/or agents.
  
  
• Re-examination: supplementary questions to the witness, usually limited only to new issues raised on cross-examination.

Note that this means that the defendant questions the plaintiff's witnesses (by cross-examination) DURING the plaintiff's evidence case. Note as well that the judge may interpose questions at anytime.

. Direct Examination

As mentioned, "direct examination" is done by the party who called the witness (ie. to "their" witness). The key to direct examination is not to "lead" the witness. "Leading" is when you ask a question that has within it the information that you want the witness to deny or confirm: yes or no. For instance, a leading question would be: "On Sunday night at seven you were with at the rink - weren't you?"

The proper form of direct examination is to ask "open-ended" questions: eg. Where were you Sunday night at seven?

The only exception to the use of open-ended questions in direct examination of your own witness is when the witness is "adverse". An adverse witness is one who comes into the case with an interest that is opposed to that of the party who called them, OR who in the course of answering questions shows animosity or hostility to the questioning or a party. Obviously a party who anticipates this problem will think long and hard about calling such a witness but sometimes their expected testimony is unavoidable.

At any stage where the adversity of the witness is or can be made apparent (even before they open their mouths) the party who called them may ask the court's permission to "treat the witness as adverse". If permission is granted then the court will let the party "lead" the witness, as described above. From then on, dealing with adverse witnesses should be done in almost the same way that the party deals with the other side's witnesses (see "cross-examination", immediately below).

. Cross-Examination

The term "cross-examination" is used both to refer to the oppourtunity to question an opposing party's witness, and to the "style" of questioning - that is, the use of "leading" questions.

The oppourtunity to cross-examine another party's witness is optional with each witness and is often skipped by professionals. However it is generally expected that if you intend to later argue (in submissions) that that witness lacked credibility on a point, or if you intend to later introduce evidence that contradicts them on a point - you should ask the witness about the point in cross-examination. While this is not a hard and fast rule and most Small Claims judges will understand if an unrepresented party does not know to do this, failure to cross-examine the witness in this way may still hurt your case. Of course, you must be able to weaken the witness for this to be worthwhile.

Otherwise cross-examination should be limited or avoided. Inexperienced parties - particularly those who draw their education from television - are at risk of harming their case by launching into ill-considered cross-examinations. The golden rule of cross-examination is only to ask questions that you know (and can prove through other evidence) the answer to. Properly applied the golden rule makes most cross-examinations very short - or dictates that they be skipped entirely.

Where possible, another use of the cross-examination phase is to challenge evidence harmful to your case by showing that the witness who testified to it should not be believed either because they are not telling the strict truth, or because their ability to perceive what they are testifying about was impaired at the time (ie. eyesight, distance, hearing, lighting, etc).

An important cross-examination principle was established in the case of Browne v Dunn (House of Lords, 1893). The 'rule in Browne v Dunn' requires that before a party put evidence in (ie. in their own evidence 'turn') that contradicts something already said or adduced by another party's witness, that they must first 'put' (ie. present) their contradicting evidence to the witness in cross-examination. This is to give the witness an oppourtunity to explain it. While strict adherence to this rule under Small Claims Court rules can be expected to be relaxed, it is something that parties should keep in mind.

There is obviously much more to the art of cross-examination which is beyond the scope of the present program.

. Re-Examination

If the cross-examination of a witness brings out evidence on new issues, then the party who called the witness may request to "re-examine" the witness to explain the new evidence or to put in context. This should be done briefly, and the temptation to have the witness repeat testimony from direct examination should generally be avoided. If you are going to repeat testimony only do it on one, maybe two, key points and even then only if you suspect that the judge judge missed it the first time.

Judges can be impatient with the abuse of re-examination.

. Rebuttal Evidence

If you are a plaintiff and after the defendant's case you feel a need to call more evidence to contradict something new raised in the defendant's case, you can ask the court for permission to call "rebuttal" evidence.

The court will want to know the nature of the anticipated evidence and will probably only grant it if the witness is right there or if it is at the end of the day and the witness can be called first thing in the morning. Question the rebuttal witness as you would any other of your witnesses, and be brief. The normal rules of direct, cross and re-examination apply to rebuttal witnesses.

Rebuttal evidence may of course also come in documentary or other form.

(e) Liability and Remedy Submissions

Remember that a key role of the the court is to make findings of fact from the evidence presented. "Submissions", which are made after the evidence portion of a trial, are the party's oppourtunity to "argue" why they should win.

The main elements of any submissions are:

• review of evidence, arguing for favourable "fact-findings" based on corroboration, contradiction of the other side's evidence, credibility, etc;
  
  
• review of how these fact-findings fit (or, for a defendant, do not fit) the legal cause/s of action - thus justifying the court ruling in your favour on liability (an exploration of the numerous "causes of action" that exist is beyond the scope of this program);
  
  
• explaining and arguing for a favourable damage award by reviewing the evidence in support. Plaintiffs should help the court to quantify damages by reference to invoices, bills, etc even to the point of providing a sheet with itemized and totalled calculations on it, referenced to the documentary exhibits (see Ch.8: "Pleadings" for a review of damage principles). Arguments by a defendant as to why damages should be small or nothing are assumed to be made on an "alternative" basis and do not prejudice their main argument that they are not liable at all.

The sequence of submissions between the parties is plaintiff first, and defendant second. Rebuttal submissions are unusual and require permission of the court.

Submissions should be brief, coherent - and fair. You only hurt your case (and you risk annoying the court) by trying to support evidence that is clearly weak or lacks credibility. The judge is not stupid and will probably think less of you for trying - so don't try.

IMPORTANT:
For reasons explained below, do not at any time prior to judgment tell the court about any settlement offers or pre-payments of liability or debt made between the parties.

Sometimes, particularly if there are novel legal issues involved, courts may request written submissions.

At the end of submissions the court will either issue its judgment on liability and remedy (usually damages) immediately from the bench, adjourn briefly to consider the matter briefly and then return to give their decision, or "reserve" their ruling to be issued orally at another date or by written ruling.

(f) Costs Submissions

It is a rule of court that no settlement offers made between the parties may be made known to the court until after judgment on liability and remedy are given. Then the settlement offers, if any, may be disclosed and the parties may argue for the issue of "costs" [R14.04]. Similarly, if any pre-payments of the debts or liability claimed have been paid between the parties, this should not be disclosed to the court until AFTER judgment is issued [CJA s.120(4)].

This is done in order to ensure that a court's mind is not prejudiced by prior knowledge of a party's private attitude to its own case.

How cost rules generally work is discussed in s.7 "Costs", below.


4. Trial Issues

(a) Overview

This section addresses some practical issues that may arise at trial, separate from the main business of presenting evidence and making submissions.

(b) Settlement Conference Report and Orders

The judge or referee who conducts a settlement conference may make verbal recommendations to the parties, including recommendations on simplifying the case, eliminating unsupported claims or defences, and admitting facts and documents into evidence without further proof [R13.03(1)].

Similarly, a judge or deputy-judge who presided at a settlement conference, or on recommendation of the referee who presided at the settlement conference, may make orders relating to the conduct of the action, including orders that the trial judge could make and in particular orders [R13.05(1)]:

• of joinder (see the discussion of "joinder" in Ch.11, s,5(d) "Pre-trial Proceedings: Joinder");
  
  
• amending or striking a defence (see Ch.8 "Pleadings") under R12;
  
  
• directing production of documents.

It is essential that parties be familiar with any such orders or recommendations.

Further, the judge or referee who presides at the settlement conference may issue a Settlement Memorandum which shall be filed with the clerk and given to the trial judge. The memorandum may summarize [R13.06]:

• any recommendations made stemming from the settlement conference;
  
  
• issues agreed and issues remaining in the action;
  
  
• any evidence issues;
  
  
• remaining steps to be taken in the action and their scheduling.

This Rule does not provide for service of the Settlement Memorandum on the parties, but it would be worthwhile to have it well before before trial. Call the court office and inquire how you might obtain a copy.

(c) Non-attendence by a Party or Parties

If at the time of trial all the parties fail to attend, the court may "strike the action from the trial list" [R17.01(1)]. This is not the same as "dismissing" the action (which - unless appealed - finally disposes of the matters raised in the Claim), it just means that if a party wants to get it back on track it must be "re-listed" for trial by them on another occasion (and payment of the trial listing fee - again).

If at the time of trial one party fails to attend, the court may [R17.01 2)]:

• proceed with the trial in the party's absence;
  
  
• if the plaintiff attends and the defendant fails to do so: strike out the defence, dismiss any Defendant's Claims (see Ch.8: "Pleadings"), and allow the plaintiff to prove the plaintiff's claim (excepting only that any defence issues raised regarding proper place of trial (venue) shall be determined);
  
  
• if the defendant attends and the plaintiff fails to do so: dismiss the action and allow the defendant to prove any Defendant's Claim (see Ch.8: "Pleadings"); or
  
  
• make such other order as is just.

When, due to non-attendence by the other party, a party may proceed to "prove their claim" as above, liability will be presumed and the attending party will only have to prove the amount of damages [R17.01(2.1)]. Parties should be familiar with these procedures, which are discussed in Ch.9 "Default by Defendant", especially s.3(c) "Procedure for Damages Assessment".

However, where a defendant fails to attend BUT has, in the the Defence, objected that the geographical venue of the proceeding (see Ch.3: "Jurisdiction") is wrong - the court should proceed to review and decide that issue - even in the absence of the defendant. The case of a defendant intending to rely on this argument might be strengthened by filing, with such a Defence, a cover letter drawing attention to the venue issue and the defendant's intended non-attendence. Courts can get very busy sometimes and miss such things.

A court may set aside or vary any judgment (ie. a final order disposing of the action) by motion (see Ch. 12: Motions and Procedural Changes) against a party who failed to attend at trial [R17.01(4)]. However such a motion may only be granted if the party who failed to attend makes a motion for the set aside or variance order within 30 days after becoming aware of the judgment [R17.01(5)]. This time limit may be extended by the court (also on motion brought at the same time) IF "the court is satisfied that there are special circumstances that justify the extension". Evidence on any such motions should make a plausible explanation of the reason for the absence at trial, and any further delay.

Note that any motion to set aside or vary a judgment that has been signed (by the court or the judge) must be served on all parties - INCLUDING those who have been noted in default [R15.01(6)].

(d) Adjournments

Adjournments tend to break down into those consented to by other parties, and those not consented to. Before the trial the party desiring the adjournment should simply write the other parties (with plenty of lead time) requesting their consent, with suggestions as to alternate dates.

That said, an adjournment requires permission of the court even if all the other parties consent to it. However if the court is advised early of the adjournment need, and consents are filed early, it is likely that the trial will be adjourned adminstratively without the need for a formal motion.

Where no consent is forthcoming from all other parties, some courts will deal with these such requests administratively and some will require a formal motion. Inquire of the court clerk as to what will be required in your particular situation.

A rule in force 01 July 2006 provides that "unless the court orders otherwise", third and subsequent adjournments will require formal motions to the court (see Ch.12: "Motions and Procedural Changes") with notice to all parties [R17.02(2)].

Grounds for granting an adjournment typically revolve around availability of parties and witnesses for such reasons as illness or long-standing pre-existing obligations. They will rarely be granted for mere convenience or lack of preparation by a party. The court will be highly sensitive to adjournment requests made simply as a tactical move or out of a desire to avoid the matter proceeding.

Adjournment orders can be accompanied by conditions imposed by the court. For example, if the request is made late, or even right at the scheduled trial date, an adjournment order may also require payment of costs by one party to another for inconvenience and expense [R17.02]. Further, such an order can require payment by a fixed time, failing which no trial will be held or the Defence will be struck out which allows the plaintiff to proceed with default proceedings (see the Ch.9 "Default by Defendant").

Case Note:
In Montgomery v Corlies (Div Ct, 2016) an appeal was granted where the defendant was not offered the option of an adjournment on terms, despite his requesting such an adjournment, where the request was based on his trying unsuccessfully to introduce undisclosed evidence. The Divisional Court held the deputy-judge as having committed an "error in principle" by not providing such option to the defendent.

(e) Public Access and Media

Note 1:
On 25 August 2006, the Ontario A-G endorsed a proposal to open Ontario Courts to media cameras (except in proceedings where witnesses are testifying) and to otherwise broaden public access to the courts. Some of the proposals will require legislative changes. What follows is the law prior to any such changes being implemented.

Note 2:
Historically, and continuing to date, all court records - unless specifically ordered otherwise - are available to the public for viewing and photocopying, for a fee. See Ch.8, s.8.

i. Open Hearings and Exceptions

The normal rule is that all court hearings are open to the public [CJA s.135(1)]. Although rare in Small Claims court procedures, the court does have jurisdiction in some cases to exclude the public from any hearing, including a motion hearing, "where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public." [CJA s.135(2)].

A court may also order additionally that disclosure of information relating to the closed proceeding is a contempt of court, as such order is not presumed only upon the court being closed [CJA s.135(3)].

ii. Recordings and Exceptions

Generally - the taking, publication, broadcasting, reproduction or other dissemination of any visual images or audio recordings of court proceedings is prohibited. This prohibition also covers persons entering or leaving the courtroom in which the hearing is to be or has been convened, and "any person in the building in which a court hearing is to be or has been convened where there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing" [CJA s.136(1)]. Basically this covers the proceedings themselves, the court surroundings, and any likely witnesses and parties. It is a prosecutable offence to violate this prohibition [CJA s.136(4)].

However - lawyers, self-litigants and journalists may make hand-written notes - and may also "unobtrusively mak[e] an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes." [CJA s.136(2)]. A 1989 Practice Directive from the (then) Chief Justice grants blanket approval for such recordings (but it would still be a good idea to advise the court clerk of your intention to do so before the judge comes in).

A judge may also make an exception to this prohibition if required for evidentiary or other court purposes, in the case of ceremonies, and "with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves." [CJA s.136(3)].

(f) Use of Case Law Authorities

Laypeople will be aware from television that lawyers often "cite precedents" when arguing a case in court (eg. "... in the case of Jones v Smedley, your honour, in the Supreme Court in 1933, the Chief Justice said ...."). Throughout this program you will see references to cases which have been argued and decided by the courts and embody interesting points and interpretations of law.

If a party intends to use case law at trial it is best to provide the other parties and the court with copies of it in advance in a fashion similar to the disclosure of documentary evidence (see the chapter: "Evidence") - although courts will tend to accept all late-filed law.

Obtaining copies of case law can be a task in itself. Libraries in universities with a law faculty, or law libraries (ie. the law library at 130 Queen St West in Toronto) in large cities tend to be open to the public. Smaller town law libraries may be closed to the public as they are run by local law associations.

Commercial legal online services such as Lexis-Nexis charge significantly for downloading case law. Most recent Ontario cases are available free-of-charge for downloading at the Court websites:

Superior Court of Ontario

Divisional Court of Ontario

Ontario Court of Appeal
As well, federal and provincial statutes are available on-line - see the link "Case Law (Court Decisions)" at the main home page.

Understanding the "citation" system for cases is also a task. For example, "37 OR (2d) 235 (Ont CA)" means the case is found in volume 37 of the second series of the Ontario Reports at p.235. The case was issued by the Ontario Court of Appeal. The Ontario Reports are the main Ontario case reporting service, run by the Law Society of Upper Canada. Collected cases are are published in volumes periodically and collected in law libraries. Otherwise - without writing a small book on the subject all I will suggest at this time is to seek the help of a librarian, legal professional or knowledgeable citizen.

If all efforts to locate a case fail, let the court and the other parties know that you intend to argue the case anyway (citing and identifying the case as best you can), take copies of whatever authority referred to it (eg. a copy of a page out of a textbook) and hope that the court will be inclined to obtain and review the actual case from their resources.

Continue Chapter Here