Small Claims Litigation

The Small Claims Court Process in Ontario

The Small Claims Court process in Ontario comes with a variety of rules, procedures and forms that are necessary to understand in order to successfully navigate your claim and to avoid default proceedings. Below you will find an overview of the Small Claims Court process, answers to some common questions regarding small claims in Ontario, and the various responsibilities for Plaintiffs and Defendants at each step of the claim.

 

What are the monetary limits for Small Claims Court?

Small Claims Court in Ontario will hear claims for money or personal property at a value of $35,000 or less (not including interest or costs). If you are looking to sue for an amount higher than $35,000 you will need to file your claim with the Superior Court of Justice and follow the civil litigation process instead.

 

What can I sue for in Small Claims Court?

In Ontario, the Small Claims Court hears claims for money owed under a variety of agreements, including unpaid accounts for goods or services, unpaid rent, and loans. Damages can also be claimed, including property damage, personal injuries, and damages for breaches of contract.

 

What are the costs?

If you are the successful party in Small Claims Court, generally you are entitled to what are known as costs. Costs include amounts paid by you during the Small Claims Court process, including fees paid for legal advice and representation, court filing, printing, and serving documents. There is a cap on legal fees recoverable against the other party – capped at 15% of the amount claimed, with the possibility of increasing this to 30% if a party makes an Offer to Settle which complies with Rule 14. It is very important to remember that costs are always within the discretion of the court and that their decision with respect to costs may be based on any Offers to Settle, the conduct of the parties, the complexity of the proceeding, etc. The court may ultimately decide not to order costs, or order costs of a different percentage. Costs will only be awarded in an amount exceeding 30% of the amount claimed if the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.

 

What kind of paperwork is required?

Almost every step in Small Claims Court is associated with a particular form. Some of the forms you may be required to use in the Small Claims Court process include: Plaintiff’s Claim, Defendant’s Claim, List of Proposed Witnesses, Offer to Settle, Terms of Settlement, Summons to Witness and Notice of Default of Payment. To view a complete list of fillable electronic forms that can be printed, visit Rules of the Small Claims Court Forms.

 

Pleadings

The documents which set out the facts of the case from the perspectives of the parties are called Pleadings. Pleadings in a Small Claims Court action come in a variety of forms: Plaintiff’s Claim, Defence, Defendant’s Claim, Defence to Defendant’s Claim.

 

Filing a Defence in Small Claims Court

Once a Defendant is served with the Plaintiff’s Claim, they have 20 days to serve and file their Defence with proof of service (Rule 9.01). The Defence must state the reasons why the Defendant disputes the Plaintiff’s Claim. If a document is involved as part of the Defence, then a copy of the document shall be attached to each copy of the Defence, unless it is unavailable, in which case the Defence shall state the reason why the document is not attached. If a Defendant does not deliver their Defence within 20 days of being served, then the Plaintiff can note that Defendant in default and commence what are known as “default proceedings” (Rule 11). Once a party is noted in default, they are no longer entitled to notice of any other step in the case.

 

Can the Defendant also file a claim?

If the Defendant believes that they have a claim against the Plaintiff or against another person arising out of the same transaction/occurrence relied on by the Plaintiff, they can file a Defendant’s Claim (Rule 10) within 20 days after the day the Defence is filed with the court. The Defendant’s Claim must be issued by the court in the same way as a Plaintiff’s Claim and must also be served personally or by an alternative to personal service. A party who wishes to dispute a Defendant’s Claim shall serve and file a Defence to the Defendant’s Claim (Rule 10.03) within 20 days of being served with the Defendant’s Claim. The Plaintiff’s Claim and the Defendant’s Claim will be heard by the court at the same trial.

 

What is a Settlement Conference?

Settlement Conferences (Rule 13) are mandatory and are automatically scheduled by the courthouse for every defended action within 90 days after the first Defence filed. They take place before a deputy judge and are designed to provide an opportunity for both parties to explain their case and to receive an opinion from that deputy judge regarding the strengths and weaknesses of their respective cases. This exercise is aimed at encouraging the parties to recognize the realities of the case, to narrow the issues in dispute, and ultimately to fully settle the matter, thereby avoiding the need to proceed to a full trial. If the matter does not settle, a different judge than the one present at the Settlement Conference presides over the trial. Attendance at the Settlement Conference is mandatory for all parties. Furthermore, all parties are required to file a List of Proposed Witnesses, witness statements (concise summaries of the evidence that each witness is expected to give at trial) and copies of any documents that were not attached to the pleadings upon which the parties intend to rely at trial. These documents must be served on the opposing party or parties and filed with the court at least 14 days before the Settlement Conference. If a party cannot attend in person, they can file a request to attend by teleconference by filing a Request for Telephone or Video Conference. If a party fails to attend or fails to adequately prepare or file the necessary documents, the court can order costs against the offending party. For these reasons, it is best to talk to an experienced disputes and litigation lawyer for advice on how to ensure that you are adequately prepared. If the case does not settle at the Settlement Conference, the Deputy Judge will set a schedule for next steps which may include (Rule 13.05):

 

Trial

If the matter does not settle at the Settlement Conference and proceeds to trial, one of the parties (usually the Plaintiff) must “set the matter down for trial.” This means that a Request to the Clerk must first be filed with the court. The court will then send out a Notice of Trial to the parties which will state the time and date of the trial. At the trial itself, evidence can come from live witnesses, documents, or a combination of both. Rule 18.02 – Written Statements, Documents, Records, states that evidence is presumptively admissible if served on opposing parties at least 30 days before the trial date. If relying on written statements or documents, you must provide opposing parties with contact information of the author. If the other parties want to cross-examine the witness, they may do so by serving a Summons to Witness. When the trial is over, the court may make their decision and explain their reasoning orally the very same day that the trial takes place. Often, however, the judge will “reserve” their decision which means that they will make their decision at a later date and send it to the parties once they have done so. The decision of the trial judge is binding on the parties and must be complied with. Generally, the successful party is entitled to having a portion of their costs paid by the losing party in addition to the damages that are ordered.

 

Appealing a Small Claims Court decision

Appeals from a final order of the Small Claims Court are filed with the Divisional Court as long as the value of damages/property is at least $3,500 (excluding costs). If the value of the judgment is less than $3,500, there is no right to appeal. Generally, you can only appeal questions of law (i.e. when the judge makes a mistake applying the law), whereas questions of fact (i.e. who did what, when events happened, whether an event happened or not etc.) are usually not appealable. If a party files a Notice of Appeal, then the order of the trial judge is “stayed” while the appeal is underway. This means that if the trial judge ordered the Defendant to pay the Plaintiff, they do not need to do so until the appeal is complete. For more information on the Small Claims Court Process in Ontario, contact our firm.

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