The Function of the Small Claims Court
The Small Claims Court is a forum to reduce the strain of civil litigation on the Superior Court of Justice in Ontario. This cour implements the simpler and more efficient resolution of relatively minor disputes. These are disputes where no more than $35,000.00 worth of cash or property is at issue. In practice, this means two things.
Small Claims Court can only deal with cash and property.
First, the Small Claims Court cannot issue an injunction. That is, it cannot order a party to do, or to stop doing, something. For example, in defamation cases, the Small Claims Court can order the defendant to pay the plaintiff some money to compensate for the defamation. Still, it cannot order the defendant to publish an apology, delete the article or retract a statement. The plaintiff can only obtain such an order through a higher court.
The $35,000.00 is not, in some respects, absolute.
Second, the $35,000.00 limit is a bright line when it comes to how much a judge can award. However, it is not an absolute prohibition to file a plaintiff’s claim where the plaintiff’s losses or damages exceed this amount. The plaintiff can agree that even though her claim is for more than $35,000.00, she will forego the excess amount and be satisfied with $35,000.00 only to have the case tried in Small Claims Court. This may make sense. The additional sum may not warrant the lengthier and more complex proceedings in the Superior Court of Justice.
Small Claims Court Complexities
The Small Claims Court procedures are simpler and more efficient than those in the Superior Court of Justice. There are, nonetheless, two reasons why the complexity of Small Claims Court proceedings ought not to be underestimated:
Small Claims Court procedure rules may still be lengthy and complex.
Ontario Regulation no. 258/98, the Rules of Small Claims Court, contains 22 chapters that regulate every aspect of the Small Claims Court proceedings, from how to initiate the Small Claims Court lawsuit to the enforcement of Small Claims Court judgments. Moreover, a recent addition to the Rules of Small Claims Court says that if the Rules do not cover any issue, the Small Claims Court can apply the Rules of Civil Procedure used in the Ontario Superior Court of Justice.
Knowledge of substantive law and trial skills are still required.
- Unrepresented litigants often believe that because the Small Claims Court proceedings are simplified, it would be sufficient to honestly tell a Small Claims Court judge his or her story to get the desired result. This is sufficient only in some cases.
- However, it is rarely enough if a lawyer or paralegal represents the opposing party. Examination and cross-examination skills and knowledge of the respective substantive law and the law of evidence are necessary to succeed. It is especially so when the other party has professional representation. At the end of the day, the judge will decide based on what he or she hears in the courtroom.
- An unrepresented litigant should know
- which part of his or her story is important to emphasize,
- how to get the information you need from a witness,
- how not to give up procedural or evidentiary advantages,
- not to miss an opportunity to object to improper actions taken by another party.
This is especially true when the case is not about a simple loan but a complex dispute in a real estate transaction or construction/renovation contract.
Legal cost
When it comes to deciding to retain representation in Small Claims Court, some litigants believe that the legal cost they incur is not compensated. On the other hand, some think they can get back any legal expenses they incur. Neither is correct. Under the rules, the Small Claims Court can (and does) award a litigant with the cost of hiring a paralegal, but only up to 15 percent of the claim amount. This means that the winning party in a $20,000.00 case can get as much as $3,000.00 for legal expenses. It is over, and above the sum, they win. The court compensates all out-of-pocket expenses such as court fees, photocopies, expert’s fees in their full amount.
If you are involved in a Small Claims Court dispute and are thinking of retaining representation, please do not hesitate to contact us for a free case assessment.
