I have a debtor who owes me $36,500.00… and I have not seen my money yet.

Question of the client

“Long story short, I am tired of promises of paying back. This is why I see no option other than filing a lawsuit. There is a problem, though: the amount owing is more than I can claim in the Small Claims Court. At the same time, I would not like to start the lawsuit in the Superior Court of Justice. It is too expensive.

Is it possible to use the Small Claims Court in my situation?”

Our answer:

This situation is not uncommon for prospective plaintiffs. The claim is slightly higher than the monetary jurisdiction of the Small Claims Court. Yet, it is still low enough to make Superior Court of Justice fees unjustifiably high. Also, the higher court’s procedure is lengthier and more complex.

The Rules of Small Claims Court prohibit claiming more than $35,000.00 in the Small Claims Court.  However, it does not mean that the gate is closed for those who suffer greater damages, such as $36,500.00. The caveat is that you, as the creditor, must decide what is more important:

• Do you want to claim the full amount of the debt owing to you, or
• Is it more important to have the case in the Small Claims Court, where the costs are lower and the procedure simpler?

If it is more important for you to claim through the Small Claims Court, you can forego a portion of the claim in the amount that represents the difference between the amount to be claimed and the $35,000.00 monetary jurisdiction of the Small Claims Court (e.g. if the claim is for $36,500.00, you should forego $1,500.00).

To forego a certain amount of the claim, you must clearly state so in the plaintiff’s claim.

However, you need to understand that if you decide to forego a portion of the claim, this decision will be final, and you will not be able to reconsider at a later stage of the procedure. Further, if you are unsuccessful in the Small Claims Court, you will not be able to begin another lawsuit for the full amount in the Superior Court of Justice.