Be prepared for your trial date in Small Claims Court

By Paul Russell, LegalMatters Staff • If your Ontario Small Claims Court matter is not resolved at settlement conference you better start getting ready for an appearance before a trial judge, and careful preparation is key, says paralegal Joyann Oliver.

“Before the trial date, self-represented litigants or legal representatives have to put together a book of documents, containing whatever is going to be submitted as evidence also known as exhibits that will be shared with the court and the other side,” says Oliver, co-founder of JNR Legal Services, with offices in Toronto and Ottawa.

“That has to be done at least 30 days before the trial date, but I recommend leaving 60 days, to ensure the other side has enough time to review the documents. It is also important that you serve an updated list of witnesses,” she tells LegalMattersCanada.ca.

At trial, each party will be given an opportunity to start with an opening statement], Oliver says,.

“These statements should not be too long or say too much, but offer a brief description of what your case is about,” she says.

As you prepare the evidence to be presented, Oliver says to consider the questions you will ask witnesses, The first kind of question is examination-in-chief, when you query your own witnesses.

Know when to ask leading questions

“At this point, you should ask open-ended questions, such as ‘What did you see?’ and ‘Where were you when this event happened?’” she says. “You are not allowed to ask leading questions, such as ‘This occurred, correct?’ or ‘She said this to you. Is that correct?’”

Oliver says leading questions are permitted when you cross-examine the other side’s witnesses “in an attempt to get the answer you are seeking.”

“Questions that are not relevant can still be ruled as being out of order,” she warns, giving the example of someone being asked about a criminal record in a wrongful dismissal case that has nothing to do with the termination of their employment.

If your witness is unwilling to appear at court, it is best to serve them with a summons to witness. A summons binds the witness and demands their attendance at court. Failing to show up may have dire consequences for the witness.

When a witness takes the stand and is provided with documentation in the case, she says that documentation becomes an exhibit once it is identified by them.

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“It is important that you think in advance of questions that will be associated with the document/exhibit to build your case,” Oliver says.

After questioning is completed, each side delivers a closing statement.

 “This is very important, as it gives you a chance to wrap up everything you have presented to the court, as you explain why the judge should find in your favour,” she says.

This is also the time to present case law that supports your arguments. 

“If this issue has already been decided by a higher court, the judge needs to follow that precedent,” Oliver says, adding the opposing counsel will point out differences in the cases as they argue the previous ruling is not applicable.

Keep track of your costs

Each side will be asked to present a bill of costs, detailing the expenses they incurred preparing for the trial. She says typical costs may include:

• fees paid to the court to file a Plaintiff’s Claim, a Defence or a Defendant’s Claim;
• fees paid to the court to file a motion;
• fees paid to a process server for service of a court document;
• witness attendance fees;
• transportation costs to attend court; and
• costs of photocopying papers or having photographs developed.

Usually, the winning side in a court case has their costs added to the amount of their judgment, Oliver says, adding this may not cover all the expenses, as typically costs are limited to 15 per cent of the value of the claim.

When the trial ends, the judge can announce a verdict or can reserve the right to make a decision in the future, she says. In that case, the judge may ask for written submissions from each side, limited to the arguments presented at the trial, including case law. A written verdict will follow, explaining the reasons for the decision.

“If you do not like the decision, you have 30 days to appeal it to divisional court,” Oliver says.

Collecting can be difficult

If you are successful at Small Claims Court, the next step is collecting the money owed, she says. 

“I hate to say this, but the easy part of Small Claims Court is actually getting the decision,” Oliver says. “The hard part is enforcement, as you often have to chase the other side for the money.”

She says this enforcement takes four main forms:

• Garnishment of wages, where you serve an employer with a garnishee statement, asking them to pay a certain amount of the paycheque to the court;
• garnishing the defendant’s bank account for the amount owing;
• registering a writ on title, which prevents a person from selling or refinancing the property without first paying the writ in full; and
• getting a writ of seizure and sale, where the sheriff is asked to seize someone’s property and sell it to settle the judgment. Oliver says this is a “very difficult and time-consuming process, and one you really want to avoid if possible.”

If you don’t have any information about the other person’s finances or where they work, she says you have to schedule a judgment debtor examination before the Court, so that the process can begin to recover what is owed.

Even though Small Claims Court is designed to be simple as possible, for cases were damages sought is less than $35,000 it is still beneficial for most people to have legal counsel at their side, Oliver says.

Professional legal counsel pays off

“Paralegals and lawyers know how to find relevant case law and how to use that to persuade a judge,” she says. “In addition, going to trial is very stressful, and requires preparation time that most people just don’t have.”

The legal expertise of a law professional can also be invaluable, especially in cases dealing with written agreements, Oliver says 

“Contracts have a unique language, and ordinary words do not always have the same meaning in a legal context, so you need a professional to argue for you,” she says.

Her final piece of advice is to dress in a professional manner, and “leave the designer or overly flamboyant clothing at home.”