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Motion to Extend Time for Service: a Request for Court Order to Provide Additional Time to Serve a Claim
Question: How do I ask Ontario Small Claims Court for more time to serve my claim after the six-month deadline?
Answer: In Ontario Small Claims Court, you can bring a motion asking the court to extend the time to serve a claim under Rules of the Small Claims Court, O. Reg. 258/98 s. 8.01(2), and you should be ready to explain the length and reasons for the delay, what steps you took to locate and serve the defendant, whether you moved promptly once the issue was discovered, whether the limitation period has expired, and whether the defendant had notice or would suffer prejudice, reflecting factors discussed in Tookenay v. O’Mahony Estate, 2024 ONSC 709. As a Legal Profession Ecosystem resource for Ontario, this is general procedural information only and not legal advice, so consider getting help from a licensed legal professional for your specific situation.
Additional Time for Document Service May Be Granted
Obtaining an Order from the Small Claims Court for additional time to serve a claim is critical when faced with challenges in meeting the standard deadlines for service of a claim. Whether due to difficulty locating the intended recipient or due to other unforeseen circumstances, requesting an extension can be essential to ensuring that a case proceeds without procedural setbacks.
The Law
To obtain an Order from the Small Claims Court for the extension of time to serve a claim, a litigant will need to rely upon both the Rules of the Small Claims Court, O. Reg. 258/98, as well as relevant case law that provides the factors that should be reviewed by the Court in deciding whether to grant an extension of time to serve. The applicable Rule provides the jurisdiction for the Small Claims Court to grant an Order to extend time to serve and, among others, the case of Tookenay v. O’Mahony Estate, 2024 ONSC 709, provides the factors for review. Specifically, the Rule and the Tookenay case state:
8.01 (2) A claim shall be served within six months after the date it is issued, but the court may extend the time for service, before or after the six months has elapsed.
[32] The factors to be considered in determining whether an extension of time to serve a statement of claim should be granted have been expressed in similar ways in different cases, including:
a. the length of the delay,
b. the evidence filed that explains the delay,
c. whether the evidence regarding the explained delay is sufficient,
d. whether or not the plaintiff moved promptly for an extension of time after the period expired,
e. whether or not the delay in serving the claim resulted from the direction, participation, or involvement of the plaintiff personally in the service of the claim,
f. the extent to which the defendant, themselves, bears some or all of the responsibility for this delay,
g. whether or not it was reasonable for a defendant to infer from all the circumstances that the plaintiff had abandoned his claim,
h. whether the applicable limitation period for the action has already expired,
i. whether the defendant had notice before the expiry of the limitation period that the plaintiff was asserting a claim against the defendant, and
j. whether the defendant would suffer prejudice if the motion is granted.
Conclusion
Obtaining an Order to extend the time for service of of a claim is an important remedy that may be available when standard timelines are unmet. A Motion to extend service is a means to prevent procedural issues from hindering a potentially valid case.