Can a Motion to Dismiss Be Brought After a Defence Is Served and Filed?
Generally, Fresh Step Rules That Apply Within Litigation Process Fail to Apply to Cases Within the Small Claims Court.
Understanding the Inapplicability of Fresh Step Rules Within Small Claims Court Proceedings
Generally, the fresh step rules that apply to the litigation process in the higher courts are inapplicable to cases within the Small Claims Court whereas, often due to the frequency of self-represented persons litigating in Small Claims Court, the strict rules within higher courts become unworkable.
Within the higher courts, meaning the courts handling civil litigation beyond the scope of the Small Claims Court, backtracking of the process is forbidden; and accordingly, for example, a Defendant bringing a Motion to Dismiss for deficiencies within pleadings, is impermissible after the Defendant files a Defence, among other things. The rule forbidding backtracking is referred to as the fresh step rule; however, in Small Claims Court, fresh step rules are commonly ignored. With this said, case law specific to fresh step rules in Small Claims Court are few; however, directly on point is the case of Cecatina General Contractors Ltd. v. Arbour,  O.J. No. 331 wherein it was said:
2 There is little doubt that this statement of the plaintiff's claim does not satisfy the provisions of Section 71(2) of the Small Claims Court Act R.S.O. 1970 chapter 439 which requires a plaintiff to set the particulars of its claim with reasonable certainty and detail for the business records are to be produced at a later date.
3 The plaintiff's claim was for work done in installing a fireplace and chimney less $2,000.00 paid on account was filed in the 9th Small Claims Court on 20th June 1978 and a default judgment was obtained three weeks later. This judgment was set aside on a motion supported by the affidavit of the defendant. The latter then filed a dispute and counter-claim for $1,859.00 followed by a successful application on 14th November 1978 to have the proceedings transferred to the County Court.
4 The defendant's solicitor then advised the plaintiff's solicitor that they felt that the plaintiff's Statement of Claim in the 9th Small Claims Court was inadequate and requested a new Statement of Claim or in the alternative further particulars. The plaintiff's solicitor agreed to this proposal which was clearly in the best interests of clarifying the issues and saving time and costs.
5 Counsel for the plaintiff opposes this motion on the ground that the defendant took a fresh step by filing a Dispute and Counterclaim in the Small Claims Court and hence is barred from making this application.
6 The claims of the plaintiff and the disputes of the defendant in the Small Claims Courts are notoriously brief and incomplete leaving it to the Small Claims Court Judge to sort out the facts and issues at the trial and hence it is in my mind very doubtful whether the fresh step rule in the higher courts can be applied to the Small Claims Court Practice.
7 In any event the fresh step rule does not deprive a judge of discretion to ignore it in proper case and I find this to be such a case. (See Drage v. Toronto Dominion Bank (1972) 1 O.R. 583.)
Furthermore, the Rules of the Small Claims Court, O. Reg. 258/98, specifically provide that the procedural rules should be flexibly applied so as to ensure efficiency as well as to ensure that the interest of justice is served. Specifically, the Rules of the Small Claims Court state:
Effect of Non-Compliance
2.01 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute.
Court May Dispense With Compliance
2.02 If necessary in the interest of justice, the court may dispense with compliance with any rule at any time.
The fresh step rules that are common to litigation within courts handling matters beyond the scope of the Small Claims Court are, generally, inapplicable to Small Claims Court cases; and accordingly, a Motion to Strike of Dismiss or a Motion for Particulars, among other steps usually forbidden after the filing of Defence, among other common fresh steps, are often permitted within the Small Claims Court.