We all hope that we will never end up in the middle of dispute that requires legal intervention, but statistics show that mediation between two parties over some hard-to-address issues is getting more difficult as we lose our ability to reason with one another.
As of January 1, 2010, the Ontario Small Claims Court has the jurisdiction to hear civil matters that involve the payment of money up to $25,000, or the recovery of personal property valued at an amount of up to $25,000. Among other things, this monetary increase from the old limit of $10,000 is part of the Ontario government's effort to increase access to justice for persons not able to afford legal representation. As a result, now, more than ever, individuals are capable of bringing their civil claims without the assistance of a lawyer. The Small Claims Court process is designed to be faster and less expensive than regular court; however, the process still requires the use of multiple forms that can appear daunting to the lay person. This article is intended to remove some of the mystery of the Small Claims Court process in an effort to assist you in finding your way through the labyrinth of its rules, requirements and forms.
So, what do you do if you want to recover money that is owed to you or recover personal property?
1) First, you have to bring a claim. This involves filling out a Form 7A – Plaintiff's Claim. On the Plaintiff's Claim form you fill out the amount of money you are claiming and then write out the reasons why you are bringing the claim. Think of it as if you are telling a story. Who are the people involved? What happened? Why are you owed this money? Don't worry about using technical "legalese" – just write out your story in plain language. Also, try to tell your story in chronological order using dates. If you are relying on any documents or letters in support of your claim, you must attach copies of these to the Plaintiff's Claim form.
2) After you have filled out the Plaintiff's Claim, it must be issued by the Court. To do this, bring the form up to the clerk counter in the courthouse and pay a fee. (In Ottawa, the Court is located at 161 Elgin Street.) Keep in mind that the Rules of Small Claims Court mandates that you must file your claim in the Ontario jurisdiction where the defendant resides. The court clerk will review the claim, assign it a file number and stamp it with the seal of the court. Voilà! Your claim is issued!
3) The next step is to serve the claim on the person who you are claiming the money from – otherwise known as the defendant. You can either serve the Claim on the defendant yourself, or get a process server to do it for you. You can find listing for process servers in the Yellow Pages or use Google to find them on the Internet. If you serve the claim on the defendant yourself, remember that you must fill out a Form 8A – Affidavit of Service and have it witnessed and signed by a Commissioner for Taking Affidavits. Commissioners can be found at the courthouse.
4) A defendant has 20 days from the date of being served to serve and file a Form 9A – Defence. If the defendant fails to meet this deadline, you can request that the court clerk note the defendant in default. If your claim is for a debt or liquidated demand in money that is easily calculated, then you may be able to request that the court clerk sign Default Judgment. If your claim cannot be easily calculated, you will have to schedule a motion date to prove the amount of your claim. After you obtain Default Judgment, either through the clerk or by way of motion, you may take measures to enforce the judgment, and collect your damages.
5) If the defendant does serve and file a Defence, the next step in the process is a settlement conference. The court will fix a date for the settlement conference and usually notify you by mail. You must serve and file a copy of all documents you intend to rely on at trial, as well as a Form 13 – List of Proposed Witnesses 14days before the settlement conference.
The settlement conference is presided over by a Deputy Judge, and its purpose is two-fold. The main purpose is to help the parties to settle their case without a trial. The second purpose is to narrow the issues in dispute between the parties to streamline the trial itself. If the matter settles, great! If not, you must file a Form 9B – Request to Clerk to obtain a trial date. The "Guide to Getting Ready for Court" found on the Ministry website is an excellent resource for preparing for the settlement conference and trial. Other forms and helpful information is also available on the attorney general website at http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc.
After the trial is over, the judge will either grant you Judgment or dismiss your case. If your case is dismissed, you cannot bring another claim against the same person for the same dispute. You only get "one kick at the can", so to speak. If you obtain Judgment, you must then take steps to enforce it. Ideally, you would work out the terms of payment with the other party. However, if the party does not pay or misses any payments, you may have to enforce the Judgment by going back to court. This may include, for example, obtaining a Garnishment Order or an Order for the Seizure and Sale of Assets. Remember, a Judgment is good for 20 years. After the Judgment is paid in full, you should notify the court and they will close the file.
At any step along the way, you may decide that your matter is too complex to represent yourself, and you may wish to retain a lawyer, paralegal or law student. Please understand, however, that in most cases, even if you are successful at trial, you will only receive up to 15 per cent of the value of your claim as a contribution toward legal fees. However, this may not cover the full amount of your legal bill. Thus, when consulting a lawyer, you should have a frank discussion about legal fees, and whether the legal fees could outweigh the value of your claim. You should also consider discussing the availability of a flat-rate fee, or any other alternative billing structures. Alternatively, you may simply hire a lawyer to advise you and give assistance in putting together your claim. This is a good way to have your claim polished and receive advice about the process and your particular claim. That said, remember that the Small Claims Court is acclaimed by many to be the "People's Court"; and the judge should be sympathetic to your inexperience. Even though the changes to the Court's monetary limits are meant to allow you to handle these matters on your own, do not operate under the misapprehension that the Court's processes and rules are simple "technicalities." Get educated on the Small Claims Court Rules and get help if you need it.
Raymond Murray is an associate lawyer with the law firm Nelligan O'Brien Payne LLP (www.nelligan.ca), with offices in Ottawa, Kingston, Vankleek Hill and Alexandria.
[This article was originally published in the January 2011 issue of Fifty-Five Plus Magazine.]