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ONTARIO REGULATION 393/09

made under the

COURTS OF JUSTICE ACT

Made: September 24, 2009
Approved: October 16, 2009
Filed: October 16, 2009
Published on e-Laws: October 19, 2009
Printed in The Ontario Gazette: October 31, 2009

Amending O. Reg. 258/98

(Rules of the Small Claims Court)

Note: Ontario Regulation 258/98 has previously been amended. For the legislative history of the Regulation, see the Table of Consolidated Regulations – Detailed Legislative History at www.e-Laws.gov.on.ca.

1.  Subrule 1.02 (1) of Ontario Regulation 258/98 is amended by adding the following definition:

“territorial division” means,

(a) a county, a district or a regional municipality, and

(b) each of the following, as they existed on December 31, 2002:

(i) The combined area of County of Brant and City of Brantford.

(ii) Municipality of Chatham-Kent.

(iii) Haldimand County.

(iv) City of Hamilton.

(v) City of Kawartha Lakes.

(vi) Norfolk County.

(vii) City of Ottawa.

(viii) County of Prince Edward.

(ix) City of Toronto. (“division territoriale”)

2.  (1)  Subrule 1.06 (3) of the Regulation is amended by striking out “the remaining parties shall be listed in Form 1A and appended to the form” and substituting “the remaining parties shall be listed in Form 1A, which shall be appended to the form”.

(2)  Rule 1.06 of the Regulation is amended by adding the following subrules:

Additional Debtors

(4)  If any of the following forms do not have sufficient space to list all of the debtors in respect of which the form applies, the remaining debtors shall be listed in Form 1A.1, which shall be appended to the form:

1. Certificate of judgment (Form 20A).

2. Writ of seizure and sale of personal property (Form 20C).

3. Writ of seizure and sale of land (Form 20D).

4. Direction to enforce writ of seizure and sale of personal property (Form 20O).

Affidavit

(5)  If these rules permit or require the use of an affidavit, Form 15B may be used for the purpose unless another form is specified.

3.  (1)  Rule 1.07 of the Regulation is amended by adding the following subrule:

(1.1)  If facilities for a video conference are available at the court, all or part of an examination of a debtor or other person under rule 20.10 may be conducted by video conference as permitted by subrules (2) and (3).

(2)  Subrule 1.07 (2) of the Regulation is amended by adding “or all or part of an examination under rule 20.10 may be conducted by video conference” after “telephone or video conference”.

4.  (1)  Subrule 8.01 (5) of the Regulation is amended by adding “and supporting affidavit” at the end.

(2)  Subrule 8.01 (10) of the Regulation is amended by striking out “by mail, by courier”.

(3)  Subrule 8.01 (12) of the Regulation is revoked and the following substituted:

(12)  The notice of examination,

(a) shall be served, together with the financial information form if applicable, at least 30 days before the date fixed for the examination; and

(b) shall be filed, with proof of service, at least three days before the date fixed for the examination.

5.  (1)  Subrule 8.03 (1) of the Regulation is amended by adding “served on an individual” after “a plaintiff’s claim or defendant’s claim”.

(2)  Subrule 8.03 (2) of the Regulation is amended by striking out “a person’s place of residence” in the portion before clause (a) and substituting “an individual’s place of residence”.

(3)  Clauses 8.03 (2) (a) and (b) of the Regulation are amended by striking out “the person” wherever it appears and substituting in each case “the individual”.

(4)  Subrules 8.03 (7) to (9) of the Regulation are revoked and the following substituted:

Service of Claim

(7)  Service of a plaintiff’s claim or defendant’s claim on an individual against whom the claim is made may be made by sending a copy of the claim by registered mail or by courier to the individual’s place of residence, if the individual’s signature verifying receipt of the copy is obtained.

(8)  Service under subrule (7) is effective on the date on which the individual verifies receipt of the copy of the claim by signature, as shown in a delivery confirmation provided by or obtained from Canada Post or the commercial courier, as the case may be.

6.  Subrule 8.07 (3) of the Regulation is revoked and the following substituted:

Exception

(3)  This rule does not apply when a claim is served by registered mail under subrule 8.03 (7).

7.  Subrule 8.07.1 (3) of the Regulation is amended by striking out “Subrule (2)” at the beginning and substituting “This rule”.

8.  Subrule 8.08 (2) of the Regulation is amended by striking out “and the backsheet”.

9.  Clause 11.03 (2) (a) of the Regulation is revoked and the following substituted:

(a) file a notice of motion and supporting affidavit (Form 15A) requesting a motion in writing for an assessment of damages, setting out the reasons why the motion should be granted and attaching any relevant documents; or

10.  (1)  Paragraph 4 of subrule 11.1.01 (1) of the Regulation is amended by adding “to the plaintiff” after “45 days notice”.

(2)  Paragraph 4 of subrule 11.1.01 (2) of the Regulation is amended by adding “to all parties to the action” after “45 days notice”.

11.  (1)  Subrule 11.2.01 (1) of the Regulation is amended by striking out “request for clerk’s order” in the portion before paragraph 1 and substituting “request for clerk’s order on consent”.

(2)  Subparagraphs 1 i and ii of subrule 11.2.01 (1) of the Regulation are amended by adding “less than 30 days before the originally scheduled trial date” at the end in each case.

(3)  Paragraphs 2, 3 and 4 of subrule 11.2.01 (1) of the Regulation are revoked and the following substituted:

2. The request is signed by all parties (including any party to be added, deleted or substituted) and states,

i. that each party has received a copy of the request, and

ii. that no party that would be affected by the order is under disability.

(4)  Subrule 11.2.01 (3) of the Regulation is amended by striking out “request for clerk’s order” and substituting “request for clerk’s order on consent”.

12.  The Regulation is amended by adding the following Rule:

RULE 11.3 DISCONTINUANCE

Discontinuance by Plaintiff in Undefended Action

11.3.01  (1)  A plaintiff may discontinue his or her claim against a defendant who fails to file a defence to all or part of the claim with the clerk within the prescribed time by,

(a) serving a notice of discontinued claim (Form 11.3A) on all defendants who were served with the claim; and

(b) filing the notice with proof of service.

(2)  A claim may not be discontinued by or against a person under disability, except with leave of the court.

Effect of Discontinuance on Subsequent Action

11.3.02  The discontinuance of a claim is not a defence to a subsequent action on the matter, unless an order granting leave to discontinue provides otherwise.

13.  Subrule 12.01 (3) of the Regulation is revoked and the following substituted:

Time

(3)  Filing and service of the amended document shall take place at least 30 days before the originally scheduled trial date, unless,

(a) the court, on motion, allows a shorter notice period; or

(b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1).

14.  (1)  Subrule 15.01 (1) of the Regulation is revoked and the following substituted:

Notice of Motion and Supporting Affidavit

(1)  A motion shall be made by a notice of motion and supporting affidavit (Form 15A).

(2)  Subrule 15.01 (2) of the Regulation is amended by adding “and supporting affidavit” after “notice of motion”.

(3)  Subrule 15.01 (3) of the Regulation is amended by striking out “and a supporting affidavit” in the portion before clause (a) and substituting “and supporting affidavit”.

(4)  The French version of clause 15.01 (3) (a) of the Regulation is amended by striking out “sont signifiés” and substituting “est signifié”.

(5)  The French version of clause 15.01 (3) (b) of the Regulation is amended by striking out “sont déposés” and substituting “est déposé”.

(6)  Subrule 15.01 (4) of the Regulation is amended by adding “and supporting affidavit” after “notice of motion”.

15.  The French version of subrule 15.03 (2) of the Regulation is amended by striking out “de l’avis de motion et de l’affidavit à l’appui utilisés” and substituting “de l’avis de motion et affidavit à l’appui utilisé”.

16.  (1)  Subrule 17.04 (2) of the Regulation is revoked and the following substituted:

Transcript

(2)  In addition to serving and filing the notice of motion and supporting affidavit (Form 15A) required under rule 15.01, the moving party shall serve and file proof that a request has been made for a transcript of,

(a) the reasons for judgment; and

(b) any other portion of the proceeding that is relevant.

(2)  Subrule 17.04 (3) of the Regulation is amended by striking out “the transcript or partial transcript of evidence” in the portion before clause (a) and substituting “the transcript”.

17.  Subrule 20.04 (1) of the Regulation is revoked and the following substituted:

Certificate of Judgment

(1)  If there is default under an order for the payment or recovery of money, the clerk shall, at the creditor’s request, supported by an affidavit for enforcement request (Form 20P) stating the amount still owing, issue a certificate of judgment (Form 20A) to the clerk at the court location specified by the creditor.

18.  (1)  Subrule 20.06 (1.1) of the Regulation is amended by striking out “under subrule (1)”.

(2)  Rule 20.06 of the Regulation is amended by adding the following subrules:

(1.2)  If a writ of seizure and sale of personal property is not issued within one year after the date on which an order granting leave to issue it is made,

(a) the order granting leave ceases to have effect; and

(b) a writ of seizure and sale of personal property may be issued only with leave of the court on a subsequent motion.

(1.3)  A writ of seizure and sale of personal property shall show the creditor’s name, address and telephone number and the name, address and telephone number of the creditor’s lawyer or agent, if any.

(3)  Subrule 20.06 (3) of the Regulation is amended by striking out “the clerk” at the end and substituting “the bailiff”.

(4)  Subrule 20.06 (4) of the Regulation is revoked and the following substituted:

Direction to Enforce

(4)  The creditor may request enforcement of a writ of seizure and sale of personal property by filing a direction to enforce writ of seizure and sale of personal property (Form 20O) with the bailiff.

(5)  Clause 20.06 (6) (a) of the Regulation is amended by striking out “30” in the portion before subclause (i) and substituting “10”.

19.  (1)  Subrule 20.07 (1) of the Regulation is amended by striking out “an affidavit for writ of seizure and sale of land (Form 20O)” and substituting “an affidavit for enforcement request (Form 20P)”.

(2)  Rule 20.07 of the Regulation is amended by adding the following subrules:

(1.1)  If more than six years have passed since the order was made, a writ of seizure and sale of land may be issued only with leave of the court.

(1.2)  If a writ of seizure and sale of land is not issued within one year after the date on which an order granting leave to issue it is made,

(a) the order granting leave ceases to have effect; and

(b) a writ of seizure and sale of land may be issued only with leave of the court on a subsequent motion.

(3)  Subrule 20.07 (4) of the Regulation is revoked and the following substituted:

Renewal of Writ

(4)  A writ of seizure and sale of land may be renewed before its expiration by filing a request to renew a writ of seizure and sale (Form 20N) with the sheriff.

20.  (1)  Rule 20.08 of the Regulation is amended by adding the following subrules:

Where Leave Required

(2.1)  If more than six years have passed since the order was made, or if its enforcement is subject to a condition, a notice of garnishment may be issued only with leave of the court.

(2.2)  If a notice of garnishment is not issued within one year after the date on which an order granting leave to issue it is made,

(a) the order granting leave ceases to have effect; and

(b) a notice of garnishment may be issued only with leave of the court on a subsequent motion.

(2.3)  A notice of renewal of garnishment may be issued under subrule (5.3) without leave of the court before the original notice of garnishment or any subsequent notice of renewal of garnishment expires.

(2)  Subrule 20.08 (3) of the Regulation is amended by striking out “the clerk in the territorial division in which the debtor resides or carries on business” in the portion before clause (a) and substituting “the clerk of a court in the territorial division in which the debtor resides or carries on business”.

(3)  Rule 20.08 of the Regulation is amended by adding the following subrules:

Duration and Renewal

(5.1)  A notice of garnishment remains in force for six years from the date of its issue and for a further six years from each renewal.

(5.2)  A notice of garnishment may be renewed before its expiration by filing with the clerk of the court in which the notice of garnishment was issued a notice of renewal of garnishment (Form 20E.1), together with an affidavit for enforcement request (Form 20P).

(5.3)  On the filing of the notice and affidavit required by subrule (5.2), the clerk shall issue the notice of renewal of garnishment (Form 20E.1) naming as garnishee the person named in the affidavit.

(5.4)  The provisions of these rules that apply with respect to notices of garnishment also apply with respect to notices of renewal of garnishment.

(4)  Clause 20.08 (8) (b) of the Regulation is amended by striking out “within six years after the notice is served” at the end and substituting “after the notice is served and within six years after it is issued”.

(5)  Clauses 20.08 (20) (a) and (b) of the Regulation are revoked and the following substituted:

(a) a hearing has been requested under subrule (15);

(b) a notice of motion and supporting affidavit (Form 15A) has been filed under rule 8.10, 11.06 or 17.04; or

(c) a request for clerk’s order on consent (Form 11.2A) has been filed seeking the relief described in subparagraph 1 iii of subrule 11.2.01 (1).

(6)  Rule 20.08 of the Regulation is amended by adding the following subrule:

Notice Once Order Satisfied

(20.2)  Once the amount owing under an order that is enforced by garnishment is paid, the creditor shall immediately serve a notice of termination of garnishment (Form 20R) on the garnishee and on the clerk.

(7)  Subrule 20.08 (23) of the Regulation is amended by striking out “the sheriff” and substituting “the clerk”.

21.  (1)  Subrule 20.09 (2) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:

(2)  The debtor’s notice of motion and supporting affidavit (Form 15A) shall set out, in the affidavit portion,

. . . . .

(2)  Subrule 20.09 (3) of the Regulation is revoked and the following substituted:

(3)  For the purposes of clause 15.01 (3) (a), the notice of motion and supporting affidavit shall be served on each of the creditors mentioned in it at least seven days before the hearing date.

22.  (1)  Subrule 20.10 (1) of the Regulation is amended by striking out “the clerk of the territorial division where the debtor or other person to be examined resides or carries on business” and substituting “the clerk of a court in the territorial division in which the debtor or other person to be examined resides or carries on business”.

(2)  Clause 20.10 (2) (a) of the Regulation is amended by adding “for enforcement request” after “affidavit” in the portion before subclause (i).

(3)  Subrule 20.10 of the Regulation is amended by adding the following subrule:

Attendance

(5.1)  A person required to attend an examination may attend,

(a) in person; or

(b) by video conference in accordance with rule 1.07.

23.  Clause 20.12 (a) of the Regulation is amended by striking out “request for clerk’s order” and substituting “request for clerk’s order on consent”.

24.  Subrule 21.01 (1) of the Regulation is amended by striking out “A referee designated under subsection 77 (2) of the Courts of Justice Act may” in the beginning of the portion before clause (a), and substituting “A person assigned the powers and duties of a referee under subsection 73 (2) of the Courts of Justice Act may”.

25.  The Table of Forms to the Regulation is revoked and the following substituted:

TABLE OF FORMS

Form Number

Form Title

Date of Form

1A

Additional Parties

June 1, 2009

1A.1

Additional Debtors

June 1, 2009

1B

Request for Telephone or Video Conference

June 1, 2009

4A

Consent to Act as Litigation Guardian

June 1, 2009

5A

Notice to Alleged Partner

June 1, 2009

7A

Plaintiff’s Claim

June 1, 2009

8A

Affidavit of Service

June 1, 2009

9A

Defence

June 1, 2009

9B

Request to Clerk

June 1, 2009

10A

Defendant’s Claim

June 1, 2009

11A

Affidavit for Jurisdiction

June 1, 2009

11B

Default Judgment

June 1, 2009

11.2A

Request for Clerk’s Order on Consent

June 1, 2009

11.3A

Notice of Discontinued Claim

June 1, 2009

13A

List of Proposed Witnesses

June 1, 2009

13B

Consent

June 1, 2009

14A

Offer to Settle

June 1, 2009

14B

Acceptance of Offer to Settle

June 1, 2009

14C

Notice of Withdrawal of Offer to Settle

June 1, 2009

14D

Terms of Settlement

June 1, 2009

15A

Notice of Motion and Supporting Affidavit

June 1, 2009

15B

Affidavit

June 1, 2009

18A

Summons to Witness

June 1, 2009

18B

Warrant for Arrest of Defaulting Witness

June 1, 2009

20A

Certificate of Judgment

June 1, 2009

20B

Writ of Delivery

June 1, 2009

20C

Writ of Seizure and Sale of Personal Property

June 1, 2009

20D

Writ of Seizure and Sale of Land

June 1, 2009

20E

Notice of Garnishment

June 1, 2009

20E.1

Notice of Renewal of Garnishment

June 1, 2009

20F

Garnishee’s Statement

June 1, 2009

20G

Notice to Co-owner of Debt

June 1, 2009

20H

Notice of Examination

June 1, 2009

20I

Financial Information Form

January 25, 2006

20J

Warrant of Committal

June 1, 2009

20K

Identification Form

June 1, 2009

20L

Notice of Default of Payment

June 1, 2009

20M

Affidavit of Default of Payment

June 1, 2009

20N

Request to Renew Writ of Seizure and Sale

June 1, 2009

20O

Direction to Enforce Writ of Seizure and Sale of Personal Property

June 1, 2009

20P

Affidavit for Enforcement Request

June 1, 2009

20Q

Notice of Garnishment Hearing

June 1, 2009

20R

Notice of Termination of Garnishment

June 1, 2009

26.  This Regulation comes into force on January 1, 2010.

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