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Introduction

The Small Claims court is frequently referred to as the “People’s Court”. It is a commonly used method for an average person to resolve simple disputes. The Small Claims Court handles matters relating to unpaid loans, damage to property, breach of contract, unpaid bills etc. Its procedures are straightforward and are intended to dispense justice quickly and efficiently.

On January 1, 2010 the Ontario Small Claims Court increased the monetary limit from $10,000 to $25,000. This monetary increase will prove to enhance the accessibility to justice by allowing individuals with higher claims to resolve legal disputes within a reasonable time and at a reasonable cost.

You Have a Claim, Now What To Do. A Step-by-Step Procedural Guide

If you have a legal dispute, action must be taken. If you do not commence a legal proceeding within the time period prescribed by the Limitations Act, your right to make a claim is forever lost. Generally speaking, the basic limitation period is two (2) years after which a claim is discovered.

A Small Claims Court action can begin when a party files a claim against another individual; this is referred to as a Plaintiff’s Claim. In the Plaintiff’s Claim, the individual will set out the particulars of his/her claim, including any monetary relief being requested. Keep in mind, that in order to prove your case in court you will need to consider what evidence should be presented to support your claim. Once the Plaintiff’s Claim is completed it must be filed with the appropriate Small Claims court and then served upon the Defendant. The Defendant then has twenty (20) days to respond to the Plaintiff’s Claim, whereby the defendant can file a defence, file a defendant’s claim or choose to take no action. Depending on which avenue the Defendant chooses to take, different outcomes will occur. If a Defendant chooses not to respond to a Plaintiff’s Claim, default judgment can be obtained and judgment can be made against the Defendant. If default judgment is obtained against another party, payment, which is owed to an individual, can be legally enforced. If a Defendant files a defence and/or a defendant’s claim, the Small Claims Court office will then schedule a settlement conference date. The purpose of a settlement conference is to bring both parties together, whereby the issues in the action are narrowed down or resolved. The overall rationale behind a settlement conference is to reach an agreement between both parties. If an agreement cannot be reached at the settlement conference, then the matter can be set down for trial.

In order to ensure you are ready for trial, keep a few things in mind. Be prepared, be organized and bring all evidence that you intend to rely on to court, including any witnesses that will assist you in proving your claim. At trial, after the Plaintiff and the other parties have presented their evidence including cross examining the opposing side, the Judge will usually give his or her decision as to the outcome of the matter. This is called Judgment.

Similar to default proceedings, if following a judgment against an individual, the opposing party has not complied with the order, enforcement measures can be taken. There are several enforcement options available which include:

Garnishment
The process of deducting money from a debtor’s employment wages or amount held in a bank account.

Writ of Delivery
A writ of delivery is an order whereby a bailiff/enforcement officer seizes the property named in the court order and returns it to the plaintiff.

Writ of Seizure and Sale of Personal Property
This procedure allows the debtor’s property to seized and sold in order to satisfy the judgment.

Writ of Seizure and Sale of Land
An order which is filed with the sheriff of a county or district where the debtor owns land. This may prevent the debtor from selling or mortgaging any land until the judgment is paid.

Examination of Debtor
A hearing, where the debtor’s financial status is reviewed to determine his or her ability to pay the outstanding debt.

After Judgment, you must make a decision as to how to enforce an unpaid judgment. The enforcement steps taken will depend mainly on the information you have about the debtor’s assets and the ability to pay. You must therefore select the most appropriate enforcement options.

Summary

The Ontario Small Claims court strives to be user friendly, with simplified rules and procedures. Although many choose to be self-represented in court, the aid of a lawyer or paralegal can be quite beneficial. A legal professional can provide sound legal advice along with assistance in filing claims and dealing with matters associated with Small Claims Court procedures.

If you have any questions relating to Small Claims Court actions, please do not hesitate to contact me at:

Laura Misasi
Litigation Paralegal
Tel: 905.276.0424
E-mail: lmisasi@kmblaw.com