The Ontario Small Claims Court Process Explained
For disputes under (or even around) $35,000.00, the Ontario Small Claims Court can be a relatively quick and easy way to seek justice (at least in comparison to our otherwise Byzantine, cumbersome and costly civil court system). Moreover, you don’t need a lawyer or paralegal to file a claim. You may still benefit from hiring us for an hour or two as needed, as we have lots of experience in Court, but that is up to you.
On this page, I will attempt to give you a general overview of the Small Claims Process.
- Initially, the procedures in Small Claims Court are governed by the Rules of the Small Claims Court, O Reg 258/98, which you can find here. While your claim will be based upon legal theories (negligence and breach of contract being two of the most common), the Rules will govern the procedures, which generally involve the filing of a claim, defence, settlement conference and trial.
- To initiate an action, a claimant must locate Plaintiff’s Claim Form 7A, which you can find here. That page contains other forms that are likely to be necessary, such as the Defence (Form 9A) and List of Proposed Witnesses (Form 13A). The first step to completing a Plaintiff’s Claim is locating the address of the court, which is listed on the Ministry of the Attorney General site here. Next, you must enter the plaintiff’s details in the plaintiff section, i.e. the legal name, address and phone number of the party commencing the action. If there is more than 1 plaintiff, you will need to complete the Additional Parties Form (Form 1A), available here.
- Next, list the details of the defendant in the same manner. If the defendant is a corporation, you can search business names at Service Ontario locations, or using an online service such as ESC Corporate Services LTD, OnCorp Direct Inc or Cybrebahn, a division of Thomson Reuters Canada Limited. If there is more than 1 defendant, you will need to complete the Additional Parties Form (Form 1A), available here.
- On page 2 of the Plaintiff’s Claim, you will need to write out the concise basis for your claim. Essentially, you are trying to state (briefly) what happened, and under what basis (legal theory) the Court may grant you relief. You can see a summary list of legal theories here (and Google the meaning for any you are unsure of), although there are others, including under statute and/or the Constitution. However, the Small Claims Court cannot act in all situations, as it is a court of limited jurisdiction, set forth by the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 23.
- On page 3 of the Plaintiff’s Claim, enter the monetary amount claimed (not more than $35,000.00 as of February 2020), make a selection with regard to interest, insert the date and sign. You may want to read my article on proving damages, which you can find here.
- Attach any related paperwork to the claim, sorted by type, and for each type, in chronological order. You should hand number the pages for easy reference later, i.e. “turn to page 15.”
- Likewise, if you are a defendant, you will need to complete the Defence Form 9A (assuming of course you don’t have your own defendant’s claim, or need to file a third-party claim). You may also wish to consult my summary list of defences. You will also want to attach all paperwork to your defence, in the manner set forth immediately above.
- Make copies so that you end up with 4 copies total (if filing at the court in paper format). Otherwise, you can now file claims and defences online.
- Complete Form 13A, List of Proposed Witnesses, which at a minimum, should include all parties.
- File at court and pay the fee.
- Serve the claim (to save myself work later, I include as well the list of proposed witnesses) upon the defendant, either personally, or through a process server (at a typical cost of between $50.00 and $100.00).
- Attend at the Settlement Conference, and if you can’t agree upon a dollar number for settlement, request the first trial date that works for you.
- To request a trial date, you will need to complete a ‘Request to Clerk‘ form 9B, and pay the fee, currently $290 I believe.
- If not settled, attend at trial, and reiterate the facts and evidence for your claim. For this, you may wish to call witnesses, present exhibits and also conduct legal research on CanLii in an effort to find similar cases.
- If not paid after Judgment, read the Ministry’s Guide to Getting Results. The most practical way to collect in most cases is either through a debtor exam or a writ of seizure and sale (land) if the defendant owns property. Writs are only valid in the region (i.e. Peel, Niagara, Hamilton) where the debtor’s property is located.
While I am happy to help, I generally advise my clients to try doing as much of the small claims process themselves as possible. Where I believe people may generally benefit from assistance is in the drafting of the claim (as I am more likely to know the applicable statutes, legal theories and applicable case law) and some coaching in advance of trial (as I’ve done lots of trials, whereas most people haven’t), given the amounts typically involved, am generally reluctant to invest significant time in small claims matters (unless specifically requested to do so by clients).
Finally, while the above is intended to be helpful, it may not apply to your case, and may not be correct, and is certainly not legal advice for your particular matter. If you want to schedule a (paid) consult with regard to a small claims matter, please don’t hesitate to give me a call at 647-495-8995.