The Small Claims Court Canada is administered autonomously by each province. The Small Claims Court does not always operate independently from the higher courts e.g. the Ontario Small Claims Court is attached to the Ontario Supreme Court of Justice, whilst the Manitoba Small Claims Court is connected to the Manitoba Court of Queen’s Bench. Small Claims Courts provide a fast, cost effective and easy way to resolve private disputes without the need for litigation lawyers. It is possible to take a claim to the Small Claims Court and present the evidence yourself. Advice for self representation in Toronto Small Claims Courts explains how claimants in Toronto can get free legal advice, however the whole process with or without a litigation lawyer takes around one year to complete and this does not allow for the time and effort of actually collecting the money owed afterwards.
Quick Guide Canada Small Claims Courts
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Small Claims Court Cases
The Small Claims Court Canada deals with private disputes against individuals or businesses. These small claims are known as civil cases and the court, which deals with them, may sometimes be called the Provincial Civil Court, rather than the Small Claims Court. You cannot use the Small Claims Court to address criminal issues, disputes involving the ownership or title to land, claims resulting from a will, slander, libel, bankruptcy, false imprisonment or cases brought about with malicious intent. Examples of Small Claims Court cases include claims for damages resulting from car and motorcycle accidents, general debt issues resulting from defaults or failure to pay for goods, services or loans, poor workmanship e.g. problems with home or car repairs and breaches of contract.
Resolving Disputes before the Small Claims Court
Taking your claim straight to the Small Claims Court is not always the most effective way of resolving a dispute and this is recognized by the Canada justice system who recommend and support alternative methods for dispute resolution. There are several other ways to solve a dispute before taking legal action: You should try to make a written demand first, in which you ask the other party to settle your small claim in full by a specific date. Some provinces actually require evidence of this before you file your Small Claims Court forms. You may also opt for a pre-trial conference before proceeding to the Small Claims Court. This involves filling out and serving the small claims form known as ‘Notice of Readiness for Pre-Trial Conference,’ if the defendant decides to defend their case. Attendance at a pre-trial hearing is mandatory and the court must receive a statement laying down the issues of the dispute prior to the hearing. The judge in attendance will review the case and in conjunction with all parties involved decide on a course of action which may involve proceeding to a summary trial, a simplified trial or full trial. Other ways of settling the dispute are through mediation and or arbitration and in some provinces small claims are automatically referred for mandatory mediation before they can proceed through the Small Claims Court.
Small Claims Court Limits
Each province sets its own Small Claims Court limit on the maximum amount of money that can be claimed via its Small Claims Courts. If you sue for an amount greater than the Small Claims Court limit stated below, you can still use the Small Claims Court, but you will not receive more than the provincial maximum if the court rules in your favour. You will also not be able to try to recoup the excess amount in another court.
The Small Claims Court limits for each province are as follows:
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Ontario Small Claims Court Limit |
$10,000 (rises to $25,000 in 2010) |
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Alberta Small Claims Court Limit |
$25,000 |
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British Colombia Small Claims Court Limit |
$25,000 |
|
Manitoba Small Claims Court Limit |
$10,000 |
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New Brunswick Small Claims Court Limit |
$6,000 |
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Newfoundland and Labrador Small Claims Court Limit |
$5,000 |
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Nova Scotia Small Claims Court Limit |
$25,000 |
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Prince Edward Island Small Claims Court Limit |
$8,000 |
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Quebec Small Claims Court Limit |
$7,000 |
|
Saskatchewan Small Claims Court Limit |
$25,000 |
Claims Court Rules and Guidelines
You can either conduct your claim through the Small Claims Court yourself or you can use a lawyer or a paralegal to represent you. Anyone aged 18 years and over and living in Canada can use the Small Claims Court. You will be known as the plaintiff if you are the person filing the small claim, whilst the person being sued is known as the defendant. If you are under 18 years of age and you want to make a small claim, you have to find someone who is aged 18 or over who is prepared to take responsibility for your small claims lawsuit and accept all of the Small Claims Court fees. This person is referred to as the ‘next friend.’ There is a deadline on the length of time that you can file a small claim lawsuit in the Small Claims Court Canada; this is known as the limitation period. The limitation period varies according to the type of small claims you make and the province in which you file your small claims. Generally, the length of time open to you to make a small claim is anything between six months and two years for general debt problems (like defaults on rent, contracts or loans), damage to property or personal damage (like injuries resulting from a car crash). In Ontario Small Claims Courts the limitation period is two years from the day on which the claim resulted. The small claims limitation period begins from the date that the debt, damage or injury began. In the case of general debt, if the debtor concedes in writing that, they owed you money or if part of the debt has been paid, then the small claims limit begins from the date that the debt was last admitted. You only have one year to sue your insurance company if they fail to pay out after an accident.
Rules of the Ontario Small Claims Court
Claims against an Individual or a Company
It is vital that your small claim is directed at the correct person or business. If you file a small claim against the wrong person, you will most likely lose your small claims lawsuit. You do not have to limit your small claim to just one individual or company. You can site as many people or companies on your Small Claims Court form as are involved in the problem. For example, if you are filing a small claim for damages caused by a car accident, you may sue the driver and the car owner if the two are different; this way if you win your small claims lawsuit, the money owed can be recouped from either or both parties.
You must make sure that you have the correct details for the defendant(s). You must give their full first and last names on the relevant Small Claims Court forms; do not use initials because they do not sufficiently identify the person. You can find out these details by checking with the local tax department.
If you are filing a small claim against a company, you must use the correct company name and this may not be the one that they trade under. You can find out the exact name of a company by searching in the provincial registry like the Registry for Ontario Businesses. You also need to find out whether the company is incorporated or unincorporated. An incorporated company tends to use the title Limited or Ltd after its name. You must put the full name of the business including this title because an incorporated business can only be sued by its exact business name. If the company you are suing is unincorporated, you must sue the company in the full name of the owner(s). You can put the company name next to the owners name to avoid confusion.
Small Claims Court Locations in Canada
Each province has several Small Claims Courts, which are usually located in key towns and cities. You must use the Small Claims Court location closest to the place where the incident occurred or the place where the person you are suing lives or conducts their business.
Ontario Small Claims Court, Greater Toronto Area
Ontario Small Claims Court, Toronto
Small Claims Court Forms
Small Claims Court forms can either be downloaded free or in some cases, purchased from the Small Claims Court website in the province where you file your small claim. If you prefer to collect hard paper copies and fill them in by hand you can do this by visiting any Small Claims Court in the province where you intend to sue. In addition to the Small Claims Court form, you will need to have a small claims Dispute Note to hand to every person being sued, a small claims Notice to Attend for every witness (including interpreters) whom you intend to call and an Affidavit of Service to prove that you have given the papers to the defendants and witnesses.
When you fill out the Small Claims Court form, you should include the following information:-
- your full name, address and daytime telephone number
- the defendant’s full name, address, and telephone
- the amount of money you are claiming
- details about the problem
- the reasons you are suing
- the number of witnesses
You must prove your case clearly on the form. For example, if you are filing a small claim for the return of security or a damage deposit you must prove that a deposit was made and was not returned or paid in full. If you are filing a small claim because of an accident, you must prove that the accident happened and who caused it as well as the identity of the person who was responsible. Give clear reasons to explain the amount you are claiming; you should include any medical costs, loss of pay or the repair or replacement of property. You should claim enough money to place you in the original position before the injury or debt.
Click here for Small Claims Court Forms Ontario
Click here for Small Claims Court Forms Canada
Small Claims Court Procedures
Once you have completed the Small Claims Court forms, you need to hand them in to the Small Claims Court office where your case will be heard and pay the relevant Small Claims Court fees. The court will then log details of your small claim and return a copy of the Small Claims Court form to you. When you receive this form, you can notify the people you are suing and notify the witnesses you intend to call. This is known as serving papers. You must serve each defendant with a Small Claims Court Dispute Note and a copy of your Small Claims Court form. Witnesses should be served with a Small Claims Court Notice to Attend and must be paid their witness fee. Each court has a list of witness fees, but generally they are around $10 – $20 per day.
You may serve your Small Claims Court documents to the defendant on any day of the week and you may use a third party like a litigation lawyer or a paralegal to do this on your behalf. If your claim is successful, the defendant is usually ordered to pay any costs associated with the service of the Small Claims Court documents. You can serve papers by giving the Small Claims Court documents directly to the defendant, handing them to a person you believe to be over 16 years of age at the defendant’s address or by sending them via registered mail so that the defendant has to sign for them.
If you are serving your Small Claims Court documents on a business, you can give them to the president, chairperson and head officer, a director of the corporation or to a manager located in the office where the small claim was issued or you may send it by registered mail to the company’s registered address.
If you use registered mail, the Small Claims Court forms are considered to be served seven days from the date of mailing if the documents are sent within the province where the small claim is being issued or 14 days if they are being sent to another province. It is vital that you retain a Copy of Signature or a Certificate of Delivery Confirmation from the post office.
Finally, to prove that you have served the small claims court forms to the defendants and the witnesses, you must fill out the form known as an ‘Affidavit of Service’ and file it in person with the Commissioner for Oaths at the Small Claims Court office. He / She will ask you to swear the affidavit in his / her presence. If you served the small claims court forms by registered post, you should attach the Signature of Certificate of Delivery Confirmation. The defendant should either file the small claims Dispute Note, settle the claim or call a Settlement Conference within 20 days after being served, or 30 days if they are served outside of the province where the claim has been filed. If they do settle the claim, or you negotiate an agreement, you should let the small claims court know by filling out and filing another form known as the ‘ Notification of Withdrawal.’ If they file the small claims court Dispute Note this means that they intend to contest your case in the small claims court and the court will set a date for your hearing and notify all parties involved. If the defendant(s) fail to respond in any way to your small claims court forms, you can obtain a Default Judgment, which is a ruling against the defendant without a court hearing. You do this by filing a Request for Default Judgment/Noting in Default with the clerk of the court at which your proceedings were set to be held. Once this has been logged you and the defendant will receive a Certificate of Judgment.
In some provinces small claims, which are defended are first referred to mandatory mediation before they are considered admissible in court.
Small Claims Court Fees
Going through the Small Claims Court is a much cheaper way of settling a dispute than going through a higher court; one of the main reasons for this is that you do not have to use a lawyer. Each province has its own set of Small Claims Court fees, which often vary according to the size of the claim but generally they are around $100 – $200.
If you cannot afford to pay the court fees, you need to fill in a Statement of Finances, which you can download or collect along with the other forms for the Small Claims Court.
Click here for Small Claims Court Fees Ontario
Click here for Small Claims Court Fees Canada
Small Claims Court Preparation
You must be well prepared for your day in the Small Claims Court and able to present your small claims case clearly. You can present evidence and call witnesses, but you should be sure that whomever you call or whatever evidence you present it is completely relevant to the case. If you present documents as evidence, they must be original copies. If you use photographs as evidence, they must be relevant to the claim and verified by the photographer who took them and that person must testify as to when the photographs were taken. Any witnesses called must be physically present in court and have a direct connection with the events leading up to the claim. Do not call witnesses whose testimony is based on hearsay evidence. You will need to cross-examine your witnesses and those presented by the defendant, therefore you should prepare your questions beforehand and make them clear and simple. Remember that you must ask questions, not just make statements.
Small Claims Court Summary Trial
If your dispute involves financial debt or property, you may be asked to attend a summary trial, which is a shorter, more effective way of resolving your dispute. Toronto Small Claims Court settlement conferences are available for all small claims under $500
, which is a shorter, more effective way of resolving your dispute. A summary trial in the Small Claims Court lasts around 30 minutes. Failure to attend will result in cost consequences or automatic dismissal. At the summary trial no witnesses are called, but their evidence may be submitted by an affidavit. Each party should bring documentation proving their claim e.g. the existence of the debt needs to be proved and the defendant needs to provide documentation about why it cannot be paid. In the case of credit card debt this would involve details of employment and salary, financial outgoings such as other loan repayments, rent etc. The judge presiding over the summary trial will listen to both sides of the case and set a schedule for the debt repayment (if it is established that a debt exists), which is convenient and realistic for both parties.
In the Small Claims Courthouse
Before the court session commences, a clerk will read the list of court hearings, to be heard that day. The list is read out before the morning and afternoon sessions. When your name is read out, you should stand up and identify yourself to the clerk. There is no jury present, but a judge or deputy judge will preside over the proceedings. Courtesy before the judge is vital; you must stand when the judge enters and leaves the courtroom and when you speak to him or her. Throughout your case, you should speak slowly and clearly and address the judge as “Your Honour.” You should never interrupt, shout or argue. If you do not understand, something the judge has said, you may ask for clarification.
At your appearance in court, you must wait until the judge calls your name. Then you must go to the front of the courtroom and inform the judge of all witnesses present. Your judge may ask your witnesses to leave the courtroom until their testimony is required. You will be able to question the witnesses for the defence as well as your own if you wish to. You must question the witnesses by standing and facing them and asking them to present what they know about the incident or claim. The witnesses you present will also be cross-examined by the defendant or his representatives. It is wise to take notes as each of your witnesses are cross-examined because you have the chance to re-examine them once the defendant has finished questioning them. At this stage you cannot bring in any new evidence; your new questions must relate to statements made by the witness during cross-examination.
Once all evidence has been presented and all witnesses have been cross-examined, both parties can make their final argument known as the Summation. The judge will then either make a decision over the case or postpone a decision to a later date.
Small Claims Judgment
Once the judge has made a decision on your case, all of the parties involved are sent a Certificate of Judgment. Once the defendant receives their copy of the Judgment, they should pay you. However, winning your case does not necessarily mean that you will receive the damages owed to you; in Toronto Small Claims Courts there are a number of procedures you can follow to recover your claim.
Small Claim Against You
If someone files a civil claim against you will be served with a copy of the civil claim form outlining the nature of the claim and the reasons why the problem has occurred and a dispute note. You can either settle the claim in full out of court, negotiate a settlement with the person suing you or put forth your argument against the case by filing the dispute note with the court. You will be able to bring in your own witnesses and evidence to support your argument, but you must obtain all of the necessary forms to from the websites listed above. If you lose the case and are ordered to pay the person who sued you, you can either pay the amount recorded on the Certificate of Judgment directly to the plaintiff (ensure that you get a receipt for any payments made) or via the court or appeal against the judge’s decision. The Certificate of Judgment lasts for 10 years and can be renewed at any time by the plaintiff to extend for a further 10 years. If you fail to pay, the other party is likely to bring a Writ of Enforcement against you, which could mean that the damages you owe are deducted at source from your salary or that a lien is put on your property, which means that the debt will be repaid on the sale of your property. If you have money in the bank this may be given to your creditors under a legal term known as garnishing. If you have no job or property the Writ of Enforcement will not go away! The person suing you can reinforce the Writ indefinitely by filing a status report with the courts. They can also instruct a Civil Enforcement Agency to seize your possessions to the value of the debt.