Commencing a lawsuit – if you want to sue someone else, you are called the Plaintiff in the court documents and proceedings. If you are the one being sued, you are called the Defendant in the court documents and proceedings. It is possible to be both if the Defendant, after receiving the claim, says “not only do I not owe you $X, you owe me $Y for (reason)”. Other parties not named by the Plaintiff in the original proceeding could also be added in a Defendant’s Claim.
In Ontario, the Small Claims Court is a branch of the Superior Court of Justice dealing with disputes of a monetary value of up to $35,000 (Canadian) excluding interest and costs (which may include court fees, experts, legal fees, etc.). Throughout the balance of this document, I will refer to this amount as the “monetary limit”.
For claims in excess of the monetary limit, you may choose to either:
- continue in the Small Claims Court and reduce your claim to the monetary limit; or
- you may choose to contact a lawyer to have the matter brought to the Superior Court of Justice in order to proceed for the full amount you wish to claim.
You cannot split your higher claim into smaller separate cases in order to still have the Small Claims Court make a determination for an amount greater than the monetary limit.
The Small Claims Court cannot make Orders to force someone to do specific performance or not do something by way of injunction. Common types of claims before the Small Claims Court are: unpaid invoices (goods or services), unpaid loans/promissory notes, unpaid rent, bounced cheques, breach of contract, issues with workmanship or quality of goods delivered, property damage, etc.
To sue or not to sue… you must consider the following – who, what, when, where, why:
- Who – before you begin the lawsuit it is imperative that you identify the correct ID of the person(s) or corporations(s) you want to sue and also what their capacity to pay is. There are costs of commencing a lawsuit in the Small Claims Court (see titled webpage) and even if at the end of it all a Judgment is made in your favour, there is no guarantee that you will be paid the amount so ordered. You may have to take enforcement proceedings (see titled webpage) or it may be difficult or even impossible to enforce payment. For example if someone is bankrupt, on disability, unemployed and without assets that can be sold, you may end up with a Judgment that cannot be enforced.
- What – is your claim the type of claim over which the Small Claims Court would have jurisdiction?
- When – are you within the applicable limitation period to be able to start the lawsuit? 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 a lawyer or paralegal.
- Where – Under the Rules of the Small Claims Court, a claim is to be brought where (or closest to) the Defendant resides or carries on business (or if multiple Defendants where at least one of them does so) OR where the cause of action (the reason for the claim) took place.
- Why – is your claim the type of claim over which the Small Claims Court would have jurisdiction and do you have a valid right / reason to sue the party(ies) you believe have caused you damages.
So you have decided that yes you want to start a lawsuit. The next thing to consider is what do you need to do to prove your case and what documents or witnesses will you need to support your claim. Of course that will be determined by what is the basis of your claim. Documents might include: quotes/estimates, contracts, invoices, photographs, banking records, emails, letter correspondence, text messages, etc. You may also need to obtain reports from expert witnesses, depending on your case.
If you have decided to retain Miller Paralegal Services to represent you in your matter, you need to provide all of this information and documentation at the beginning of the process so that it can be filed and served with the Plaintiff’s Claim as is required by the Rules of the Small Claims Court. Of course if anything else should arise during the course of the proceeding, for example something you didn’t think was relevant to the case at first, additional documents can be received and served throughout the process.
Miller Paralegal Services will then draft the Plaintiff’s Claim and email it to you for review to ensure it is complete and accurately sets out what happened. Once the Plaintiff’s Claim is finalized, we will file it with the appropriate location of the Small Claims Court and start the steps of serving the documents on the Defendant(s). You will be billed for this part of the proceeding as an interim billing.
The next step in the proceeding will depend on whether or not a Defence is filed. If a Defence is not filed within the 20 days after service of the Plaintiff’s Claim, the Defendant(s) could be noted in default and depending on the reason for the claim, we can ask for a clerk-issued Default Judgment (for loans, invoices, etc.) or we can set a date for an Assessment Hearing before a Deputy Judge (for cases involving damages to person or property) which is basically a one-sided Trial. If a Defence is filed, the next step is Settlement Conference.
For the next steps in a defended proceeding, see Phase 2 – Settlement Conference and Negotiations.
For the next steps in an undefended proceeding, see Phase 3B – Assessment Hearings