ASK A LAWYER: What is Small Claims Court – and when do I need one?

Everyone’s heard of Small Claims Court. But not everyone knows when to use it.

The Ontario Small Claims Court is a lot of things. It’s a court of justice. It’s a statutory court. It’s a forum to litigate civil disputes and occasionally some minor family law cases.  It has minimal “equitable” jurisdiction.  As long as a claim fits within its monetary jurisdiction and a statute does not require an alternate venue, the Small Claims Court in Ontario does it all.

From contractual disputes with a home renovator to an unpaid debt; slip-and-falls to tree encroachment disputes with neighbours; wrongful dismissals to dog bites – Small Claims adjudicates disputes between people in Ontario.

Of course, some cases won’t find their way to Small Claims.  The Construction Lien Act mandates all lien actions be in the Superior Court, for instance. Cases involving custody and access of children and married couples separating go to the Family Court. Estate or business disputes requiring an accounting, any trust claims and requests for “declaratory relief” fall to other courts.  Excepting these and a few others, if a dispute is valued at $25,000 or less, litigants are making their way to Small Claims.

The court is established by the Courts of Justice Act as a branch of the Superior Court of Justice although it has its own rules of procedure.  In Ottawa and other centres, there used to be a permanent, full-time appointed Justice to presided and administer the Small Claims Court. Judges of that court are principally lawyers called “Deputy Judges” who preside on a part-time basis with renewable appointments.  Deputy Judges are usually senior counsel from the private bar or employed in the public sector and practice in any number of areas or may be retired from their law practice.  They are paid a nominal per diem.

Full disclosure: My father was a Deputy Judge in northern Ontario for over 20 years.  He enjoyed helping at settlement conferences and presiding at trials but he always said he would have made more money spending an hour in the office or digging through a couch for loose change. In my experience, speaking to my father and having worked in a firm with a deputy judge, and knowing many through my own day-to-day practice, they do it as a public service.

The Small Claims rules are written for people without legal training.  Small Claims is intended to hear questions of law and fact in a summary way.  This means that the ‘KIS’ (keep it simple) principle applies.  Most litigants at court represent themselves but some use qualified paralegals, law students and when appropriate, lawyers.

Given the monetary jurisdiction and the limitation on costs to 15% of the claim, it is often difficult to justify hiring a lawyer or another representative to argue in Small Claims Court.

However, that doesn’t mean there’s no role or room for legal advice. Next time, we’ll talk about how and when a legal professional can (and should) help in Small Claims.