Motions

A motion is a way to ask the court a question with regard to an existing court matter.  You prepare motion materials for the purpose of asking the court to provide you with an Order.  In this article, when I refer to a person, it could be an individual, a sole proprietorship, a partnership, or a company. 

One of the most common motions in small claims court is to set aside a default judgment that one person has obtained against another person.  Generally speaking and for the purpose of this motion example set out in this article, a default judgment is a judgment which one has obtained without the knowledge of the person who the judgment was awarded against.

This can happen when the plaintiff (the one suing) obtains a default judgment against the defendant (the one being sued) because the defendant did not file a defence.

When the defendant finds out about the judgment, he or she may bring a motion to set aside, or cancel, the judgment that the plaintiff obtained. 

There is a three part test that one must meet in order to be successful in setting aside a default judgment and, as long as those three elements can be proved to the satisfaction of the court, the court will set aside the judgment so that the defendant can then file a defence and the matter can move forward to a settlement conference and ultimately a trial if no settlement can be reached without the need for a trial.

A motion consists of two parts.  The Notice of Motion on which you set out the 'relief' or 'remedy' that you are seeking from the court and a 'Supporting Affidavit' that sets out what happened and why the court should grant you the relief that you are asking.

The above is a brief and bare-bones overview with respect to motions and is not to be taken as legal advice.  You should always consult a legal professional if you have a legal matter to ensure that your rights will be protected.

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