ASK A LAWYER: When should I go to small claims court?

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A possible remedy for civil cases that aren’t required to be in another court.

Timothy N Sullivan Ottawa lawyer answers questions

The Small Claims Court jurisdiction permits cases of a total amount value of $25,000 plus interest, plus costs. (This value was raised from $10,000 in 2010 in an effort to move more cases to what is often referred to as “the people’s court”.)

Almost every kind of civil case can go to the Small Claims Court unless some specific rule or statute requires the case to go to the Superior Court.

Any contract dispute or negligence claim, trespass and most other civil matters can be brought in Small Claims.

Cases that cannot be brought in Small Claims are construction lien actions; cases involving custody of and access to children; most Family Law matters as between married spouses; and cases that require one or both parties produce an accounting. These are reserved for other courts.

If you have a civil case that does not have to be in another court, it is usually preferable to proceed through Small Claims, where lawyers are not required and the rules are written for non-lawyers.  The process is streamlined by requiring upfront disclosure of all important documents and a court appearance where further documents may be ordered.  Examinations for discovery are not permitted – but neither is a motion for summary judgment.

A key advantage is that the cost of filing in Small Claims is lower than in the Superior Court of Justice for civil matters.

In Small Claims Court, if a party is unrepresented but successful in the action, the rules permit about 15% of the amount of the claim (not the amount of the award), to be ordered in costs even if the winning party did not incur legal expenses. (There are ways to increase the costs above 15%.)  However, this rule can also be a negative if you use a lawyer, as legal fees in that case will typically be higher than what can be recovered in costs in Small Claims.

If you are uncomfortable acting on your own, paralegals who are regulated by the Law Society of Upper Canada are permitted to appear in Small Claims.  Under special circumstances a party may have someone assist in the case if they are not actually acting for that person.  This means only a lawyer or a paralegal regulated by the Law Society may provide legal advice and represent a party in the Small Claims Court.

One advantage of proceeding in the Small Claims Court is a provision about its authority in the Courts of Justice Act.  Section 25 provides that the Small Claims Court shall hear, in a summary way, the questions of law and fact before it, and are to make orders “as is considered just and agreeable to good conscience”.  While the Superior Court has a similar jurisdiction called ‘equitable’ jurisdiction, Section 25 may be considered to provide some flexibility to the judge in Small Claims Court to apply some ‘common sense’ that a strict reading of the common law may not strictly authorize.

More questions?  Don’t hesitate to contact us.

 

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional lawyer in your province.   

Do you need a lawyer in small claims court? Absolutely yes. And no.

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Last time, we talked about what Small Claims Court in Ontario is (and isn’t).

But the question I hear more often is: If I’m going to Small Claims Court, do I need a lawyer?

The answer – like so many questions of law – isn’t always ‘yes’ or always ‘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.  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.

This doesn’t mean there’s no role for legal advice. If you are 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 the Internet diagnosis of “you should be concerned about this” rash on your foot, or a family dentist for semi-annual cleaning, flossing lectures or Wisdom tooth extraction.  I am 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).  Your family lawyer can advise of the legal issues people bring to Small Claims Court.  Litigation is not always about the money.  There may be legal or personal principles or a valid business purpose at play in deciding to sue or defend.


 

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

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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.