Small Claims Court

Natalie Fraser for The Lawyers Weekly

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Bringing a Small Claims Court Action

Small claims court provides access to justice for the average person. Most people represent themselves, although the rules allow a lawyer to appear on a person’s behalf.

In a small claims action, the party bringing the action, known as the plaintiff, sues the party he or she has a claim against, known as the defendant. Plaintiffs can only bring civil actions – those that seek to correct a wrong through financial compensation or an order for the defendant to do something. Examples include claims for an outstanding debt, defamation, personal injury, damage to property, and wrongful dismissal.

Before commencing an action, plaintiffs must determine whether their claim fits within the monetary limit of the small claims courts in their province. Limits range from several thousand dollars to over $20,000, and represent the maximum amount a plaintiff can sue for. Plaintiffs with claims exceeding the limit will either have to lower the amount of their claim, or retain a lawyer in order to bring the action in a higher court.

Prior to bringing a claim, plaintiffs may wish to consider getting legal advice regarding limitation periods, relevant legislation, and specifics about how much to claim.

The plaintiff must bring the action in the correct jurisdiction, based on where the cause of action arose, or where the defendant resides or carries on business. The defendant may object if an action is brought in the wrong jurisdiction, requiring the plaintiff to recommence the action in the correct one.

Plaintiffs begin by obtaining a claim form from the court office and completing it. Plaintiffs should organize their claim properly, including the remedy sought, the facts in chronological order, and copies of any documentary evidence and relevant legislation. Once complete, the plaintiff must arrange to have the claim delivered to or ‘served’ on the defendant according to court procedure.

If the defendant fails to file a defence within the allowable time, the plaintiff may bring proceedings for a default judgment for the full amount of the claim. If the defendant files a defence, the case will proceed to court.

Plaintiffs should collect evidence backing their claim such as bills, receipts, and correspondence between the parties, and should arrange to have witnesses attend court on the day of the trial. They may wish to consider settlement of the action prior to trial. Settlement conferences can be arranged through the court.

At the trial, each side gives opening statements. Next, plaintiffs present their case, including calling witnesses that can be cross-examined by the defendant. Defendants then present their case, followed by closing arguments by both sides. Finally, the judge renders a verdict.

Defending an Action

People receiving notice of an action against them in small claims court should respond promptly if they wish to defend the claim. This is done by filing a defence responding to the claims made by the plaintiff. If the defendant does not file a defence, the plaintiff may win the case by default. Defendants may also wish to bring counterclaims for any claims they may have against the plaintiff, crossclaims for claims against other defendants, or third party claims alleging responsibility for the money owed by those parties.

Other options include offering to settle the case, suggesting alternate dispute resolution such as mediation, or discussing a payment plan with the plaintiff.

Collecting Money After Winning the Case

Even with a judgment against a defendant, the plaintiff doesn’t automatically receive the money owed. If the defendant, now called the "judgment debtor", has no assets, the plaintiff, now the "judgment creditor", cannot collect.

If the debtor doesn’t pay as ordered by the court, the creditor should arrange for a judgment debtor examination through the court office. These proceedings, held before a court official, allow the creditor to ask the debtor questions about his or her assets and financial situation. With this information, the creditor can access the debtor’s bank account for the money owed, or take it out of wages received from an employer, a process called "garnishment". The creditor can also ask the sheriff to seize and sell personal property owned by the debtor to pay the outstanding amount, or place a writ of seizure and sale on any lands the debtor owns. A writ on lands means the debtor cannot sell the land without paying the debt. However, if the debtor doesn’t sell the land quickly, it means the debt remains outstanding for a long period of time.

Since the inability to collect payment can make a judgment meaningless, plaintiffs should determine whether defendants have assets to satisfy their claim before bringing a small claims court action.

Natalie Fraser practised law in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly.