Lawyers are an expensive bunch. So what do you do if that contractor you hired runs away with your money, or someone files a frivolous lawsuit against you?
The answer depends on the amount of money in question. If you’re involved in a lawsuit where someone is claiming more than $35,000 (as of January 1st, 2020), then despite the costs, you’re much better off getting a lawyer as soon as you can. You’ll thank yourself later.
However, if your case involves $35,000 or less, then you’re in Small Claims Court territory. Fortunately, at that level of Court, your options are considerably broader. We’ve compiled a short list of tips and pointers to keep in mind when navigating the Small Claims Court in Ontario, with or without representation.
Consider a Paralegal
If you still want the skills and experience of a licensed professional, without the expense of a lawyer, you can hire a paralegal to represent you. In Ontario, paralegals are regulated by the Law Society of Upper Canada, just like lawyers. Also, like lawyers, paralegals must also adhere to strict rules of professional conduct, and usually receive training and mentorship from lawyers during their education. They can also independently represent their own clients in Small Claims Court.
Know the Rules
Whether you go to Court with representation or not, make sure you know the rules that govern the Small Claims Court process. Conveniently, those rules are easily accessible and publicly available online. You can read them here.
A good understanding of the process and procedures of the Court is more than half the battle. When it comes to actually dealing with the substance and issues in your case, you’ll find that part to the easiest. You’re the expert about your own experiences and personal observations of your case, but you may not be an expert about the Court process.
It’s easy to be intimidated by the legal jargon that is found in most sets of laws, including the Small Claims Court Rules. However, you can make the whole experience feel much less intimidating by slightly shifting how you think about the process. Let me explain what I mean.
If you follow any sport (it doesn’t matter which one), you likely already have the foundation for understanding legal reasoning but you probably don’t know it. This most likely even applies to you if you’ve ever enjoyed a good board games night as well. All sports and games have lists of limitations on the players, and rules about how the game progresses from start to finish. The Small Claims Court is no different, and the game’s “manual” (so to speak) is publicly available and written in somewhat plain English. The Small Claims Court Rules include twenty-two rules that explain everything from starting your lawsuit, defending one, and how to collect money from the Defendant if you win at a trial.
Know These Major Steps…
Okay, so maybe twenty-two rules about everything from how to file Plaintiff’s Claim (Rule 7) to how to behave in a Settlement Conference (Rule 13.03(3)) might be slightly more complicated than learning how to play a round of blackjack, but it helps to just focus on the major milestones of your case. In our opinion, those milestones are as follows:
A Plaintiff’s Claim is filed in Court.
The Defendant is “served” with a copy of the Claim (meaning the Defendant is personally handed a copy).
The Defendant files his or her Defence (Form 9A) within 20 days of receiving his or her copy.
The Court mails everyone the date, time and place of their Settlement Conference.
The Plaintiff and Defendant meet with a Deputy Judge to discuss settlement (most cases end here).
The Plaintiff and Defendant can’t agree, and the Judge grants them permission to proceed to trial.
The Plaintiff and Defendant attend their trial and they each testify to their sides of the story. Somebody wins, and somebody loses.
Win the Battle Before it Begins
We haven’t mentioned it yet, but there’s a huge relationship between milestone #1 and milestone #7 above. Specifically, your chances of successfully winning at trial is going to depend on the strength of the evidence that supports your side of the story.
A lot of people don’t know that the word “evidence” includes the testimony that you communicate under oath in the witness box. But how does the Court decide the issues at trial when the Plaintiff and Defendant are both believable and credible witnesses, but are telling somewhat different versions of events? In those cases, the Court looks to the rest of the remaining evidence available for the Court.
If you’re the Plaintiff, then the onus (or responsibility) rests upon you to convince the Court that your side of the story is true. You have the burden of proof. So if you are a Plaintiff, then you should definitely focus on winning your case before you even step in your trial room.
In that regard, you should consider attaching documents to your Plaintiff’s Claim (Form 7A) that support your side of the story. If you’re claiming that you paid a contractor some money to renovate your kitchen, and that individual tore your home apart and never returned your money, you should print bank statements or produce copies of cheques that you used to pay that contractor. You should also attach pictures of the unfinished work. These types of documents shift the balance in your favour when the Court is considering all available evidence before the Court. Ensure that you reference those documents when you are filling out the Form 7A. For example, when you are writing your answer to the section entitled, “What happened?” you could say “I paid the Defendant $5000 on February 1st, 2016. Please see Personal Cheque dated February 1st, attached at Tab 1”.
If you want to go the extra mile, you can even educate yourself about how Judges prefer to read such materials. You’ll make a great impression if each of your supporting documents are organized by dividers/tabs and you spend the extra money to visit a FedEx or UPS print shop to have your Plaintiff’s Claim bound with a surelock comb, complete with a clear cover and vinyl back. It may seem trivial, but presentation can go a long way towards winning your case.
Read the Guides
A complete description of the entire Small Claims process would make this article ridiculously long. That being said, the online resources that are available at your disposal aren’t restricted to just the rules of the Court. The Ministry of the Attorney General has also published nine easy-to-read guides that deconstruct virtually every stage of the Small Claims process. The guides use examples and hypothetical cases to effectively walk the reader through each of the major steps involved in a Small Claims matter. You can find those guides here.
We’ve included links to downloadable PDFs for each of the guides below:
This article is legal information only. None of the content in this article is intended as case-specific legal advice. If you require advice about your matter, you are encouraged to contact us.