Winning in Ontario Small Claims Court starts with these six steps

By Paul Russell, LegalMatters Staff • If you want to sue someone for money, the return of personal property or damages, valued at $35,00 or less, Ontario’s Small Claims Court is the place to seek a remedy, says Toronto paralegal Joyann Oliver.

“Small Claims Court is a court of equity. It can only award damages. It cannot order a person to do ­– or stop doing – something,” says Oliver, co-founder of JNR Legal Services.

“Though the process is fairly straightforward, you are still dealing with the law, so that’s why you stand a much better chance of success if you have a paralegal build your case,” she tells LegalMattersCanada.ca.

Six tips

While courts are temporarily closed due to COVID-19, she offers these six tips on how to launch a claim once the lockdown ends.

1. Know the terminology

“When it comes to any legal action, the plaintiff is the person who commences the proceedings, and the defendant is the person who responds,” Oliver says. “Both can be individuals, a number of individuals, a corporation or a partnership.”

2. Write a demand letter

Before you start a claim, create a demand letter, she says, explaining this gives the parties an opportunity to resolve the matter before even going to court.

3. File and serve a plaintiff’s claim

A plaintiff’s claim must give a concise and clear summary of the events that took place and the reasons you think you are entitled to money or property. It then has to be served on the defendant, Oliver says, either by courier, personal delivery or by leaving it with a legal representative to handle.

‘Cost-efficient’

“I highly recommend plaintiffs think about how the claim is to be delivered because if it is improperly served that will delay the court process,” she says. “At JNR, we use process servers (someone who delivers legal documents to those involved in a court case) because we believe it is more cost-effective for the client and guarantees the defendant has been served.”

If the claim is sent by mail or courier, Oliver explains the defendant can say they never received it.

“With a process server, we have a third party who can verify they served the claim,” she says.

Oliver says plaintiffs are then required to provide an affidavit of service, showing the court the defendant is aware a legal action has commenced against them.

4. Give the defendant a chance to respond

After a claim has been delivered, she says the defendant has 20 days to serve a defence.

“Out of professional courtesy, I tend to give people more than 20 days,” Oliver says. “Once the 20 days has expired, I will remind them of the claim, provide a courtesy copy and ask them to again respond.”

Three things can then happen. First, the defendant can respond and file a defence, explaining their side of the story. 

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“Once they file a defence, then there will be a settlement conference,” she says. A second option is for the person to file a defendant’s claim, explaining why they are not completely – or at all – responsible for the issues that are being raised. Another party could be added to the court action at this stage, with that party then given 20 days to respond.

File a defence

A third option is for the defendant to file a defence along with a defendant’s claim. The defendant’s claim may be against the initial plaintiff or it may be against a third party who was not initially involved in the claim, Oliver says. Any new parties to the action will be given 20 days to respond.

5. if the defendants fail to respond

If the defendant fails to respond, she says the plaintiff can note the defendant in default.

“Because people have to respond to allegations in legal claims, it can be argued a lack of response should be seen as their acceptance of the allegations in the claim and their acceptance of the damages being sought,” she says.

Drawing on her extensive experience in the Small Claims Court, Oliver says she always warns clients not to be in a rush to have a default judgment declared by a judge.

“If you push too quickly to have a defendant noted in default, they can easily come back and file a motion with the court explaining they were out of the country, or sick, or they can provide some other reasonable excuse and the court will probably set aside the default judgment and the plaintiff would unable to proceed with enforcing the judgment,” she says.

“You want to avoid the additional costs and delays that will involve, so give them time to respond before filing for a default judgment.”

Oliver says she has seen default judgments set aside months after being granted, which is why she gives defendants at least six months to reply, during which time she will remind them of the claim in letters and phone calls.

‘Good faith effort’

“If I do move to have them noted in default, I make sure I have enough documentation to show the court that I have made a good faith effort to be in touch with them,” she says. “If you can show proof that you have made many efforts to have the defendant file a defence but they didn’t, the court will usually allow the default judgment to stand.” 

6. Hire a legal professional

No matter what you are suing for, Oliver says your chances of success will be enhanced by hiring a lawyer or paralegal who understands both statute and common law. She gives the example of someone alleging wrongful dismissal.

“People without legal training do not know the legal precedents found in common law, which guides judgments in terms of entitlements or notice periods,” she says.

If the case revolves around a contractual dispute, Oliver says a layperson may not understand the six elements that must be found in a contract to make it legal and binding.

“A trained legal professional will know what to look for, and will be better able to advocate for you in Small Claims Court than you will be able to do by yourself,” she says.

This is the first of a three-part series. Next month Joyann Oliver discusses what goes on during the settlement conference and provides more information about default judgments.