The advice may be good, but the financial advantage can be small.
Recently we discussed what Small Claims Court in Ontario is, and what kinds of legal issues it’s designed to solve.
Once an individual has decided to pursue a remedy in Small Claims Court, the next question is usually: “Do I need a lawyer to do this?”
The answer, like so many questions of law, is yes. And…no.
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, which means that the KIS (keep it simple) principle applies. Most litigants in Small Claims Court represent themselves, but some use qualified paralegals or law students. Lawyers are used less often.
Given the monetary limitation of $20,000 in Small Claims Court, 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 from a financial perspective.
This doesn’t mean there’s no role for legal advice.
If you’re considering a lawsuit or you are being sued, there is no substitute for an opinion from a qualified professional about procedure, liability and damages: As a plaintiff, do you have a case? What is the value of the claim? Is Small Claims an appropriate venue or is there another way to advance your concern?
As a defendant, do you have your own claim to advance? What defences are available?
For either party, how do I maximize a costs award should I win or minimize the costs payable should I lose?
Many people have a family doctor whom they see for annual an check-up or to confirm an internet-based self-diagnosis, or a family dentist they see for semi-annual cleaning, flossing lectures or wisdom tooth extraction. In the same vein, I’m an advocate of having a family lawyer. This is someone who will draw up a Will, help with loan documents to adult children or who can advise on a business structure (or find someone who can do these or more complicated matters).
If you find yourself in a situation where a legal remedy can be sought in Small Claims Court, it can be a good idea to consult a family lawyer for advice, even if that lawyer doesn’t come to court with you or handle the paperwork. Litigation isn’t always about the money, in any case. There may be legal or personal principles or a valid business purpose at play in deciding to sue or defend.
The bottom line? While a lawyer isn’t required for Small Claims Court in Ontario, and while it may not make fiscal sense to be represented in court by a lawyer, it may be helpful to invest in a couple of hours of a lawyer’s time to help clarify issues and options should you find yourself involved in a Small Claims case.