What is a Small Claims Court?
In Ontario, the Small Claims Court is a branch of the Superior Court of Justice. The small claims courts are meant to be an easier and less expensive way to resolve disputes, than in the higher courts. Small Claims Court procedure is regulated both by provincial legislation and rules. Small claims procedure is simplified with no strict pleadings requirements, no formal discovery process and parties costs may be limited. For example, the forms in Small Claims Court use a fill-in-the-blank style.
What kinds of cases go to Small Claims Court?
The Small Claims Court can handle any action for the payment of money or the recovery of possession of personal property where the amount claimed does not exceed $35,000, excluding interest and costs such as court fees. This includes the value of all goods that the plaintiff is asking for in total, no matter how many defendants there are. Examples of claims that can be filed in the Small Claims Court include:
- unpaid accounts for goods sold or services delivered
- unpaid loans
- unpaid rent
- NSF cheques
- property damage
- clothes damaged by a dry cleaner
- personal injuries
- breach of contract
The amount of money that somebody owes me is $40,000. I’ve got two Promissory Notes from him for $20,000 and $20,000. Can I file 2 claims?
You cannot divide the amount of money you are claiming into separate cases. You cannot, for example, divide $40,000 into a $20,000 claim and a $20,000 claim in order to have the total amount dealt with in two cases. If the amount of your claim is more than $35,000, you can still choose to use Small Claims Court. However, you will have to give up the amount of money over $35,000, as well as any future right to get this money in any other court.
Is it worth it?
Before starting a lawsuit, you should ask yourself if it will be worth it. To bring a lawsuit you will have to pay for: court fees at each step in the case; legal fees if you have someone represent you; photocopies and delivery of documents; fees, travel expenses and interpreters for witnesses you call to court. If you win the case, the judge may order the other side to pay some of your costs. If you lose, you may have to pay some of the other side’s costs, as well as your own. To keep costs low, you might want to try to reach an agreement out of court. This is called settlement. Even if you win, the defendant may not pay you or return your goods. If this happens, you will have to take further steps to get your money or goods from the defendant.
How much does it cost to make a claim in the Small Claims Court?
You must pay a fee to file a claim or defense in Small Claims Court and for most steps in a proceeding, such as filing a motion, requesting a trial date, and taking steps to enforce a judgment. The number of steps in a proceeding varies from case to case. There are also fees and allowances that you must pay to witnesses you have summoned for their attendance and travel to court. In addition, you will have to pay for any interpreters you or your witnesses require, other than bilingual (English or French) interpretation and visual language interpretation, unless your fees are waived. A party – often the successful party – can ask that the other party be ordered to pay his or her costs, such as court fees. The Ontario Government introduced a fee waiver certificate for persons who may be denied access to justice because of their financial circumstances. Some examples of fees that may apply are as follows:
|Filing of a claim by an infrequent claimant||$75|
|Filing a notice of motion served on another party, a notice of motion without notice or a notice of motion for a consent order (except a notice of motion under the Wages Act)||$40|
|Issuing a summons to a witness||$19|
|Fixing of a date for trial by an infrequent claimant||$100|
Are there any time limits? How long I can wait before making a claim?
There may be a time limit to how long you can wait before making a claim. If you are uncertain about what period of time applies in your case, you should consult CP Paralegal Solutions.
In which Small Claims Court office should I file my claim?
It is very important where, in which location, to file your claim. You must file your claim in the court office that satisfies any of the following criteria:
- the court in the territorial division where the cause of action arose (i.e. where the event took place or problem occurred)
- the court in the territorial division in which the defendant lives or carries on business (if there are several defendants, then it can be the court in the territorial division in which any one of them lives or carries on business)
- at the court’s place of sitting that is nearest to the place where the defendant lives or carries on business (if there are several defendants, then it can be the court nearest to the place in which any one of them lives or carries on business).
What proof do I need to support a claim?
You will have to prove your case. Consider what witnesses and/or documents (for example, contracts, NSF cheques, record of payments) you have to support you. If you do not have supporting documents (e.g. you entered into a verbal agreement) or witnesses, your claim may still be successful. However, if it is just your word against the other person’s, it may be more difficult to prove your case. You will be required to write in the claim form a short, clear summary of the events that took place and the reasons you think you are entitled to a judgment (court order). Copies of documents that you intend to use to support your claim must be attached to the claim form if you decide to go ahead. The other party is able to respond to your claim and may give evidence that will affect the judge’s view of your entitlement.
My English is not very good and I think I’ll need an interpreter. How does it work?
Small Claims Court provides interpretation services for all court proceedings and written documents from English to French and French to English. If you or your witnesses will need language interpretation in court from French to English or English to French, notify the court office at the outset of the case. Interpretation from English or French to any other language must be arranged for, and paid by, the party who requires the interpretation. The interpreter must be accredited as being capable of performing that function. The court office will pay for ‘in-court’ interpretation in any language for individuals who qualify for fee waiver.
What if I need sign language interpreter?
If you have a hearing impairment and need an interpreter, you can make a request at the Small Claims Court office. The staff will first ask whether written communication would satisfy your needs. If written communication would not be satisfactory, then a visual language interpreter can be used. You can either bring an interpreter with you or ask to have one arranged for you. You may have to make an appointment to come back when an interpreter is available. The court will pay visual language interpreters the standard Ministry interpreter rate or a requested fee (whichever is less).
Who do you want to sue?
You will need to know the legal name of the person or business and a current residential or business address
How do I make a claim in Small Claims Court?
There are 4 steps in making a claim
- Completing the Plaintiff’s Claim form
- Filing the Plaintiff’s Claim: You need to decide which Small Claims Court to go to. Bring to the court office the original and a copy for each defendant – the Plaintiff’s Claim form; and the documents that support your case
- Paying Court Fees: When you submit these documents you will be expected to pay the court filing fee
- Serving the Plaintiff’s Claim: After you have filed the claim with the court, you must deliver a photocopy of the claim and your documents to each defendant. This is called serving the defendants. You have six months to do this
Can I ignore the lawsuit?
You should not ignore the lawsuit. If you don’t reply, the case will go on without you. You will not have a chance to defend yourself and tell your side of the story. If you ignore the lawsuit the court will think the plaintiff is right about the facts. The court may then order you to pay money or deliver goods to the plaintiff.
I’ve got a notice that I’m being sued in the Small Claims Court. How do I reply?
The defendant’s response to the Plaintiff’s Claim is called the Defence. You must file your Defence with the court office no later than 20 days after receiving the Plaintiff’s Claim. There are 3 steps in replying to a claim
- Completing a Defence form: do not forget to attach copies of any documents that support your case
- Filing the Defence form: Bring to the court office where the plaintiff started the claim the original and a copy for each party listed on the plaintiff’s claim: the Defence form; the documents supporting your case. The court office will deliver a copy of the Defence form and documents to the plaintiff(s) and any other defendant listed on the plaintiff’s claim.
- Paying Court Fees: When you file your Defence form and document you will be expected to pay the court filing fee
What if I miss the deadline?
If you did not file the defence on time, the court may make a decision against you and may order you to pay money or give goods to the plaintiff. This decision is called a “default judgment”.
What if the plaintiff owes me money or someone else is responsible for the loss?
You can also make a claim of your own against the plaintiff or someone else. This is called a Defendant’s Claim. For example, the plaintiff may owe you money. Or you may believe someone else caused the plaintiff’s loss and that person should pay instead of you.
What happens if the defendant does not reply to my claim?
If you have filed a claim and the defendant has not filed a defence within 20 days, you can ask the court clerk to find or note the defendant in default. You do this by filing a Request to Clerk form. You must prove that the defendant was properly served with the claim. You do this by filing an Affidavit of Service form. Court fees must be paid to take these steps. When a defendant has been noted in default you can ask the court to order them to pay money to you. This can be done by:
- Asking the court clerk to sign default judgment for a specified sum of money
- Asking a judge to order judgment
What is a motion?
A motion is a formal request to a judge to make an order about your case. Anyone who is a party to a case can make a motion. Motions can be helpful but they can also make the case take longer and cost more money. For example:
- A defendant could ask the court for more time to send in a Defence or a Defendant’s Claim.
- A party could ask for more time to serve documents.
- A party could ask the court to resolve a specific issue in the case, for example to extend time to pay costs ordered by the court.
- A party could ask the court to change an order that has already been made, for example the plaintiff could ask the judge for an order overturning an order dismissing the claim as abandoned.
- The defendant could ask the judge for an order stating that the money owed has been paid in full, or goods returned
How do I bring a motion?
There are following steps to bring a motion:
- Fill out a Notice of Motion and Supporting Affidavit form.
- Explain what you want and why. Explain the facts supporting your motion.
- Obtain a hearing date for the motion from the court. Write this date on the Notice of Motion and Supporting Affidavit form.
- Serve the Notice of Motion and Supporting Affidavit on the other parties. This must be done at least 7 days before the court date for the motion.
- Bring to the court the completed Notice of Motion and Supporting Affidavit and an Affidavit of Service.
- Pay the court filing fee.
Can I settle the case outside the courtroom?
Before a trial starts, the parties should try to find a solution on their own. There are four ways to do this:
- The defendant can admit to owing money or goods.
- The parties can reach an agreement at a settlement conference.
- The plaintiff or defendant can make a written offer to settle.
- The plaintiff and defendant can talk about settling outside of court.
What is a settlement conference?
If there is no agreement between the parties, the court will hold a meeting no later than 90 days after the first Defence is filed with the court. This is called a settlement conference. A settlement conference is a meeting with the parties and a judge to try to find an answer to the case that all parties can agree to. All parties must attend unless the court orders otherwise. This meeting usually takes place in a private room with the judge and the parties sitting around a table. The goal of this meeting is to find a solution both parties can accept. If it is not possible to find a solution for the whole case, the judge will try to get the parties to agree on some of the issues. If all of the issues are not settled at this meeting, then a trial will be planned.
How do I get my money if I win in Small Claims Court?
If you are the plaintiff and you win the case you become the creditor and the defendant becomes the debtor. The court will order the defendant (debtor) to pay money to you or to give you goods. The debtor may pay right away or may ask you for more time to pay. If the debtor does not pay, there are steps you can take to get the money or goods. This is called enforcing the judgment. There are fees for each of these steps.
What is an examination hearing?
You can ask the court to hold a court hearing about the debtor’s finances. You are not required to have this hearing to take steps to get money from the debtor, but it can help you get information you need to get your money. You do this by filing a Notice of Examination form and an Affidavit for Enforcement Request with the court, and serving them on the debtor. If the debtor is an individual (not a corporation), you would serve these documents together with a blank Financial Information Form. The debtor must complete this form and give a copy to you and the judge. This form is not filed in the court file. At the hearing the debtor must give information about their job, income, property, bank accounts, debts, expenses and reasons for not paying. After looking at this information, the judge may order the debtor to make payments on certain dates.
What I can do if the debtor does not make the payments ordered?
If the debtor does not make the payments ordered, you have two options for trying to get the money:
Garnishment: You can ask the court to make the debtor’s employer or bank pay this money to the court. The court will then pay you. This is called garnishment.
Seizure and sale of personal property or land: If the debtor does not pay, you can have their things seized
Will the court collect the money for me?
No, it will not. However, there are a number of procedures available to the parties, but it is up to the parties to commence the different enforcement procedures available.
What can the debtor do if they disagree with the judgment?
If the judgment was obtained by default, you may ask the court to set aside the default judgment.
Can orders of boards, tribunals, agencies or other courts be enforced in Small Claims Court?
The orders of some boards, tribunals and agencies, as well as other levels of court can be filed and enforced in the Small Claims Court (e.g. orders under the Tenant Protection Act, Employment Standards Act, and the Provincial Offences Act). Once the order is filed, for enforcement purposes, the order is treated as an order of the court. Refer to section 19 of the Statutory Powers Procedure Act for more information. There is a fee to file these orders. Once the order has been filed with the Small Claims Court, it can no longer be enforced in the office of the criminal court where it was made.
Does the creditor have to wait for the debtor to decide to sell the land?
No. Four months after filing the writ with the enforcement office you can direct the enforcement office (sheriff) to seize and sell the land, but the actual sale cannot proceed until the writ has been on file for six months. The sale of land is a complicated and costly process, and commencing this process requires a large initial deposit for anticipated expenditures. It is rarely used to enforce a Small Claims Court judgment, since a debtor will often have personal property or garnishable debts that will be sufficient to satisfy the judgment.
How long does the writ last?
The writ will expire six years from the date it is issued, unless you renew it for an additional six-year period. A writ may be renewed before it expires by filing a Request to Renew a Writ of Seizure and Sale [Form 20N] with the enforcement office. Each renewal is valid for six years from the previous expiry date. There is a fee to file and renew a writ.