Your Day In Court – A Brief Look At The Small Claims Court

Justice
The Small Claims Court is, quite literally, the “people’s court”. Most persons should find that the procedures in that venue are relatively simple and easy to follow. One still has to do a lot of reading, but the court staff is usually helpful and usually will assist with procedures. You can also get a paralegal or a friend to assist you if you feel that your case is too complicated. However, if you are going to go to court, it is best to be as familiar with the rules as you can. Read as much information as possible, so that you can determine what is the best approach to win your case.

The basic procedure is that a plaintiff files a claim in the court. Then the plaintiff has to get the document served on the defendant personally and file the document with proof of service in the court. It is best to do this as soon as possible. If six months pass, you will need to bring a motion to request permission to extend the time for service. After the defendant is served, he or she has twenty days to file a defence. Failure to do so will allow the plaintiff to note the defendant in default and then apply for default judgment. If the defendant files a defence, a settlement conference will be scheduled by the court. At the settlement conference, a judge will attempt to get the case settled. If the settlement conference is unsuccessful, a trial date will be set. At trial, each party present their case and the judge makes a decision and grants judgment accordingly (the “judge” in the Small Claims Court is usually a “deputy judge” and is probably a lawyer who does this part time. There are very few full time judges).

A judgment can be appealed if the amount on the claim is in excess of $2,500. The appeal is made to a single judge in the Divisional Court.

Some things that you should remember are:

  • you cannot get an injunction or other mandatory order in this court;
  • You can only get a judgment for money.The current monetary limit in Small Claims is $25,000. You can, however, make a claim for a recovery of property if the property does not exceed the value of $25,000;
  • Costs usually goes to the winning party. Except in exceptional circumstances, costs should not exceed 15% of the amount claimed plus disbursements;
  • If you are self represented and are successful, you can request an “inconvenience fee” of up to $500
  • The Attorney General of Ontario has some good resources on how to pursue or defend a Small Claims Court action. You find a Small Claims Court guide here. If you need forms, you can find Small Claims Court forms on this website. The Rules of the Small Claims Court (the law that governs procedure in this court) can be found on the canlii.org website.

    Note – If your matter is worth more than $25,000 you can still bring it in the Small Claims Court, as long as you agree to abandon any amount above $25,000. For instance, if you are owed $30,000, you can make the claim in Small Claims Court but only claim $25,000. If you wish to claim the whole amount, but your case is worth less than $100,000, then you can bring an action in the Superior Court under the Simplified Procedure Rules. The Simplified Procedure Rules is very similar to the Small Claims Court, but the legal rules are more strictly applied than in the Small Claims Court. The judge presiding at trial is an actual judge of the Superior Court of Justice, not a lawyer who works in the court part time. However, the procedure is usually less expensive than an ordinary procedure case and many actions are determined within 12 months.