Small Claims Court PROCEDURE Canada

What is the process or procedure?

The following is a very brief overview of the process of going to Small Claims Court. Some further reading will be helpful if you do in fact decide to go to court. Suggested further reading includes court websites, government websites, free legal information services such as Pro Bono clinics, student legal information clinics, the Public Legal Information Association in your province, or library books such as Lee Stuesser’s An Advocacy Primer.

1) Plaintiff  (person suing)

Contacting the Court

First, you will need to contact the nearest Small Claims Court to ask them what to do. Generally, most Small Claims Courts will require you to make an appointment with the Clerk. To prepare for  the appointment, you will need to create something called a Statement of Claim, as well as bring in relevant documents like contracts and invoices. You will also need to know the Defendants name. These requirements will be discussed in more detail below.

Naming the Defendant

This may seem obvious, but be careful. If you make a mistake when you name the Defendant, even if you win the case you may not be able to enforce the judgment against the Defendant. Don’t use nicknames or shortened versions of a persons name; use their legal name.

If you claim against an incorporated business, you will need to name the corporation as the Defendant, using the corporation’s legal name. Additionally, you will want to  know the names of the directors or owners and the location of the registered office or place of business. You can find this out by paying a fee and conducting a name search at the Corporations Branch in your province. Keep in mind that some businesses are not corporations. If you are suing a business that is not incorporated, you should name both the business and the person who runs the business as Defendants.

Statement of Claim

This is an outline of the reasons the Plaintiff is suing, and the remedy the Plaintiff is seeking (such as money, or requiring the Defendant to do something). The Statement of Claim should include the details of the problem including dates, times and  places, and should be accompanied by relevant documents like contracts and invoices. The Statement of Claim is usually in triplicate, and needs to be signed by the Plaintiff and then given to the Court Clerk who then submits it to the Judge.

Summons

If the Judge is satisfied that the Statement of Claim and supporting  documents show that the Plaintiff may have a valid claim, s/he will issue a Summons. The Summons is a form that tells the Defendant they are being sued and the time and date of the court appearance.

Service

When the Judge issues the Summons, the Clerk keeps a copy and the other two copies go to the Plaintiff. The Plaintiff then has to serve the Summons and the Statement of Claim on the Defendant.

Usually, the Plaintiff must serve the Defendant at least 10 days before the court date.

There are several specific rules for service and the Plaintiff should  check with the Court Clerk as to how to serve the Defendant. Usually, it is best to serve the Defendant personally, by handing them the Summons and Statement of Claim and saying “This is a summons”. If the Defendant won’t physically take the Summons, the Plaintiff should tell them they are being served and what the claim is about, and then leave the Summons right beside the Defendant or at their feet.

It is also possible to serve by registered mail or by using a process server.

Costs

The Plaintiff must pay the fee for issuing the Summons, which is  based on a percentage of the amount of the claim. The Court Clerk will explain the calculation and the methods of payment available.

2) Defendant

Responding to the Claim

The Defendant may wish to settle the matter. For example, if the Defendant doesn’t dispute the amount of money claimed, s/he can pay the money to the Plaintiff or to the Court prior to the court date. The Defendant should keep proof of payment to show that the matter has been resolved.

Dispute

The Defendant may wish to dispute the claim. If so, the Defendant should file a “Dispute Notice” with the Court Clerk at least 3 days before the court date. This notice will include information about the claim and the reasons why the Defendant is disputing it.

Counterclaim

The Defendant may also claim against the Plaintiff, for example if  the Defendant believes the Plaintiff owes them money or should be forced to do something (like return an item).

The Defendant can serve a Notice of Counterclaim on the Plaintiff  at least 3 days before the court date, or raise the issue of the counterclaim on the court date. If the Defendant doesn’t serve notice on the Plaintiff in advance of the court date, the Judge may adjourn court to give the Plaintiff time to prepare.

3) Court-Ordered Mediation

Sometimes a Judge may tell the parties to try to resolve the dispute by mediation, before the Judge will set a court date.

4) Case Management Conference

Usually, the court date written on the Summons is the date of the case management conference. This is a meeting with a Judge, the Plaintiff and the Defendant (and their lawyers if any). The parties will try to settle, and if not possible, they will agree on certain matters regarding the trial itself.

Procedure at the Conference

The Judge at the conference will not be the Judge at trial, so parties can speak freely at the conference without prejudicing their case if they do go to trial later. Anything discussed at the conference cannot be used as evidence if the parties do go to trial later.

The Judge will give the parties an opinion on the strengths and concerns of each party’s case. The Judge may also give an opinion on the law that might be applicable to the case. The Judge may also suggest ways to resolve the conflict without going to court. The parties then choose whether or not they will settle.

If the parties decide to proceed to trial, they must discuss with the Judge information about the trial including: the number of witnesses they plan to call, the names and titles of expert witnesses, if any, whether the parties will be represented by a lawyer, what documents may need to be exchanged between the parties, exhibits to be presented at trial and how to do so, and whether there are any special accommodations such as giving witness evidence by phone.

This entry was posted on Sunday, October 25th, 2009 at 12:13 am and is filed under Small Claims. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.