Going to court to recover money you are owed can be a time-consuming and expensive process. However, in Ontario, if you are seeking an amount of $35,000 or less (or are willing to waive anything above that amount), you can file a claim in Small Claims Court.
What claims are brought in Small Claims Court?
Small Claims Court is often used to recover money owed through a contract, such as an agreement for goods or services. It also may be used to pursue damages claims, including personal injury matters, property damage, or breach of contract.
What is the Small Claims Court process?
The first step is to commence a claim. This involves completing certain paperwork, serving the claim on the person you are suing (known as the defendant), and paying filing fees. You must then wait for a response from the defendant, who may wish to dispute the claim.
If the defendant disputes the claim, you will be asked to meet with the defendant and a judge in a settlement conference to try to resolve the matter. If no agreement comes from the settlement conference, the next step is a trial.
If your claim succeeds at trial, the court will direct the defendant to pay you. If you are unsuccessful and believe the judge made a serious error, you may be able to appeal the decision to a higher court.
What does it cost to file a Small Claim?
Filing a claim will cost between $100 to $215. Other steps in the process, such as setting a trial date or requesting a default judgment, can cost between $89 and $320. In some cases, filing fees can be waived if you cannot afford them and make a request for a fee waiver.
You may have other expenses in addition to filing fees. For example, you may need to pay the costs for your witnesses to travel to and attend court or might require the services of an interpreter if there are language barriers.
The judge may order the defendant to pay some of the costs if you win the case. If you lose, you might have to pay your own costs and some of the defendant’s costs.
Should I sue?
There are a number of factors to consider when deciding whether to sue.
- Is the amount worth it? Given the cost of filing fees and the time and effort required to see a claim through, it may not be worth your time if the amount you are seeking is small.
- How long are you prepared to wait? Small Claims can take between six to 18 months from the time of filing to the trial date.
- Have you tried a demand letter? A demand letter is simply an informal letter sent to the (would-be) defendant before you commence your claim to see if the matter can be settled outside of court. Note that in some cases, you are required to send one before you can begin your claim.
- How strong is your case? You will need to ensure you have evidence to prove your claim. Written evidence, such as contracts, invoices, or emails, tend to be more persuasive than verbal evidence. Your evidence needs to be information that you have received first-hand, rather than “hearsay” evidence that you have heard through someone else (unless that person is attending as a witness).
- Do you know who you are suing? If you are suing a business, make sure you are using its proper corporate name. Having the proper business or corporate name is important for enforcing a judgment.
- Has the limitation period expired? In Ontario, you generally have two years to commence a claim. This two-year period begins from the date you become aware of a loss. For example, if your claim is based on damages you suffered as the result of an injury, you would normally have two years from the date the injury occurred. In cases where the claim is based on an unpaid invoice, you would have two years from the date the breach of the invoice occurred (i.e. the date the payment became overdue).
- Will you ever get paid? Remember that even if you win in court, it does not automatically mean you will get paid. There are post-judgment execution steps you can take to enforce a judgment, such as garnishment of wages or registration of a judgment against the defendant’s property. However, if the defendant does not have the property or means to pay you, you may end up spending more money trying to force them to pay than you’ll recover.
Are there any alternatives to a lawsuit?
Depending on the terms of any applicable agreement or the subject matter of the claim, you may be able to use an alternative dispute resolution method to solve your dispute. These may include:
- Negotiation, where you try to come to an agreement with the other party;
- Mediation, where a neutral third-party helps to facilitate a resolution; and
- Arbitration, where a neutral third-party (an arbitrator) acts as a decision-maker and makes a binding decision in the matter.
Do you need a lawyer for Small Claims Court?
Proceedings in the Small Claims Court are less complex and more informal than Superior Court. However, the legal issues involved in Small Claims Court can still be technically complex and include unique evidentiary challenges. Parties to Small Claims are not obligated to have a lawyer but may choose to use one to ensure they comply with all relevant procedures and deadlines. The legal process and requirements for an appeal can be particularly complicated and may require experienced legal counsel’s assistance.
Contact Tierney Stauffer LLP for Civil Litigation Advice & Representation in Ottawa, Cornwall, Arnprior, Kingston, or North Bay
The experienced litigation lawyers at Tierney Stauffer LLP have extensive knowledge of the Small Claims Court system. We provide reliable advice and creative legal solutions for resolving disputes in any legal forum, including litigation and alternative dispute resolution. Call us at 1-888-799-8057 or contact us online to discuss your matter with a member of our team.