Small Claims Matters

An individual or business who believes that another individual or business owes them money or property can bring a lawsuit against that individual or business. If the value of the claim is $35,000 or less, the lawsuit can be brought in the Small Claims Court.

A plaintiff, someone who is suing, can commence a small claims lawsuit by completing the Plaintiff’s Claim (Form 7A); filing the Plaintiff’s Claim online with the appropriate court office and paying the prescribed fee (currently $102 for a new claimant and $204 for a frequent claimant); delivering (or serving) a copy of the Plaintiff’s Claim on each defendant; completing an Affidavit of Service (Form 8A) for each defendant; filing each Affidavit of Service.

The Plaintiff’s Claim gives all other parties to the litigation notice of the nature of the claim (the amount of money sought or identity of property sought) and the supporting facts and documents.

The supporting facts in a Plaintiff’s Claim should evince a theory of the case (i.e. an explanation of why the plaintiff is entitled to the relief sought, based on some branch of private law – whether contract law, tort law, the law of restitution etc. – e.g. that the defendant breached his or her contract with the plaintiff and therefore owes the plaintiff liquidated damages under the contract).

A defendant, someone who is being sued, will be served with a copy of the Plaintiff’s Claim. The defendant then has 20 days to serve and file a Defence.

A defendant can file a Defence by taking the following steps: completing the Defence (Form 9A); serving a copy of the Defence on every plaintiff; completing an Affidavit of Service (Form 8A) for each plaintiff; and, within 20 days of the date on which the defendant was served with a copy of the Plaintiff’s Claim, filing the Defence and Affidavits of Service in the same court office as the original claim was filed. There is a prescribed filing fee (currently $73).

If the defendant does not file a Defence, they can be noted in default. This allows the plaintiff to proceed with their claim in the defendant’s absence and request a court order against the defendant without hearing the defendant’s side of the story (called a default judgment).

In addition to filing a Defence, which responds to the plaintiff’s claim, the defendant can also bring an independent claim against the plaintiff or anyone else (called a counterclaim). Filing a counterclaim involves the following steps: completing the Defendant’s Claim (Form 10A); within 20 days of the date on which the defendant filed the Defence, filing the Defendant’s Claim with the same court office; giving a copy of the issued Defendant’s Claim to everyone the defendant is suing (the defendants to the defendant’s claim); completing an Affidavit of Service (Form 8A) for each defendant to the defendant’s claim); and filing the Affidavits of Service. There is a prescribed filing fee (currently $102).

A Defence should contain a theory of the case about why the plaintiff’s claim should fail; a Counterclaim, why the defendant’s separate claim should succeed. The defendant’s theory in the above example might be that he or she does not owe liquidated damages to the plaintiff because the contract was breached because of an event that is listed under the Force Majeure clause.

If a defendant has already been noted in default or if a default judgment has already been issued against them, the defendant has the following options. The defendant can request the plaintiff’s consent to the filing of the Defence and, if the plaintiff agrees, the defendant can file a Request for Clerk’s Order on Consent (Form 11.2A). Or the defendant can bring motion to set aside the noting in default or default judgment by filing a Notice of Motion and Supporting Affidavit (Form 15A) and paying the filing fee (currently $120).

Within 90 days of the filing of the first Defence, the clerk will fix a time, place and date for the settlement conference before a Deputy Judge and serve a notice of the settlement conference on the parties. The parties are required to serve and file a List of Proposed Witnesses (Form 13A) at least 14 days before the conference date. (Witnesses, intended to be called at trial). The purposes of settlement conferences include: resolving or narrowing issues; expediting the disposition of the action; encouraging settlement; preparation for trial; and management of disclosure.

At a trial, presided by a Deputy Judge, each party has an opportunity to present their side of the story by presenting relevant evidence. Evidence includes calling your own witnesses, questioning (also called cross-examining) the other side’s witnesses; and/or showing the other side and judge physical evidence (such as documentary evidence). At the end of trial, the judge weighs the evidence and decides what the facts are. The judge then takes all of the applicable law, and applies it to the facts, and thereby reaches a decision about the claim(s).

A final order may dismiss or grant the plaintiff’s claim and/or dismiss or grant the defendant’s counterclaim. If one of the parties (called the debtor) owes the other (called the creditor) money or property under the order, the other party (debtor) has the option of asking for a payment schedule. If the debtor fails to abide by the payment terms of the order or payment schedule, the creditor can then commence enforcement proceedings to enforce the order. One option is an examination hearing which gives the creditor the opportunity to question the debtor about his or her financial circumstances with a view to figuring out what enforcement mechanisms to pursue. These include garnishment of the debtor’s wages or seizure and sale of their land.

A party who is dissatisfied with a final order of the Small Claims Court may, within 30 days of the date of the order, file an appeal with the Divisional Court; but not if the order is for an amount less than $3,500 exclusive of costs. An appeal is commenced by serving and filing copies of a Notice of Appeal (Form 61A) and Appellant’s Certificate Respecting Evidence (Form 61C) on the plaintiff. If this deadline is missed, the appellant has the options of requesting the consent of the respondent to late-file these documents or bring a motion to the court to extend the timeline. Filing an appeal is only the beginning of the process; prosecuting the appeal then involves the processes of perfecting and then arguing the appeal.

Azimi Law can assist a party in many ways with their small claims matter including: developing a theory of the case; helping gather and marshal material evidence; determining the correct forum; determining whether the claims at issue are within the limitation period; ensuring completeness of documents (incorrectly drafted documents may be rejected for filing by court staff); arranging for effective service of documents; advocating for the party’s interests in alternate dispute resolution processes and court; and giving the party legal advice to guide them through the legal process.

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