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How can I sue in Small Claims Court?

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How can I sue in Small Claims Court?

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Reviewed: 
February, 2017
Answer

If you think someone owes you money or has broken the rules of a contract, you can sue them in court. This includes some employment issues, such as wrongful dismissal and unpaid wages.

If you're asking for $25,000 or less, you can file a claim in Small Claims Court. But if you're asking for more, you must do that in Superior Court.   If what you are owed is more than $25,000, but you are willing to waive the amount over $25,000, then you can still file in Small Claims Court.

You must file your claim within 2 years of when you first learned about the problem.

Other solutions

Before you decide to sue someone, try other ways of solving the problem such as:

  • sending a letter demanding they pay the money they owe you
  • getting a mediator to help resolve your issue

Things to consider

Suing isn't always the best option. Here are some reasons you may not want to sue:

  • Unless you’re able to get a fee waiver, you have to pay court fees.
  • If you lose, the court could order you to pay some or all of the legal costs of the person you tried to sue.
  • It may take a long time, even over a year, and involve a lot of work for you, especially if you don’t have a lawyer.
  • If you win but the person you sued doesn't pay, it's up to you to collect the money.

Legal help

You do not need a lawyer to go to Small Claims Court. But you'll probably understand the court process better if you talk to a paralegal or lawyer.  

If you earn a low income, you might be able to get legal help from Pro Bono Ontario. Pro Bono Ontario helps with cases in Small Claims Court and Superior Court.

In Ottawa and Toronto, Pro Bono Ontario provides duty counsel lawyers at Small Claims Court. Duty counsel lawyers give advice and can sometimes help you represent yourself in court.

You can also learn about the court process by reading the Small Claims Court: Guides to Procedures on the Ministry of the Attorney General website.

If you want to sue for more than $25,000, you must do that in Superior Court. It's very hard to do this without a lawyer. If you want to sue in Superior Court, you should try to get legal help.

1. Complete a Plaintiff’s Claim

The first step is to complete a Plaintiff's Claim form. Forms for Small Claims Court are available on the Rules of the Small Claims Court Forms website.

For information on how to complete this form, read the Guide to Making a Claim. Follow the instructions carefully.

A plaintiff is the person who is suing and a defendant is the person being sued. You're the plaintiff. The person or company you're suing is the defendant.

Identify yourself and the defendant

On page 1 of the Plaintiff's Claim, enter:

  • your name and contact information, as the plaintiff
  • the name and contact information of the defendant
  • the name of the defendant's company, if applicable

It's important to give the right name for the defendant. If you win, you can only collect money from the defendant listed on this form. The names on the court order are based on the Plaintiff's Claim.

Check the company name

If the person who owes you money is the employee or owner of a company, include the person and the company as defendants. You may be able to get the court to make an order against both.

For example, if you bought something from a company named Radiant Radiators that is owned by Joe Bossman, you could list both Radiant Radiators and Joe Bossman as defendants on the Plaintiff's Claim.

Check the company name and address. Sometimes, the name that the company uses most often is not its legal name. For example, the company may use another name on its store signs or website.  If the company is registered with the Ontario government, do a Service Ontario business name search. If the company is registered with the federal government, do a federal corporation search.

When you search for the company name, you may get a corporate number. Some companies use a corporate number instead of a business name. Enter this number on the Plaintiff’s Claim. 

If you're unable to find the legal name of the company, you can ask Service Ontario for help. You must pay a fee for this service. The Service Ontario Helpline can be reached at (416) 314-8880 or toll free in Ontario at 1-800-361-3223.

Give the reasons for your claim

On page 2 and 3 of the Plaintiff's Claim, give the reasons for your claim, such as:

  • what you're asking for and why
  • the terms of the contract, including any terms that weren't followed 
  • when you signed or confirmed the contract
  • what you have done to try to fix the problem

Give the amount of your claim

On page 3 of the Plaintiff's Claim, say how much you're asking for. The most you can claim in Small Claims Court is $25,000.

Your claim can include money for:

  • the price of goods you returned
  • damage to the product you received
  • damages you suffered because of poor service
  • damages you suffered because of unfair business practices
  • costs you paid to repair the product
  • injury caused by a faulty product
  • costs you paid to file your claim with the court
  • costs you paid a lawyer or paralegal who helped you

Claims less than $2,500

If you're being sued for less than $2,500, you can ask the judge to make a decision about the claim during the settlement conference.This can only happen as long as both you and the plaintiff agree to it in writing. If the judge decides your case at the settlement conference, you will not have to go to trial. This can save you a lot of time and money.

A settlement conference is an informal meeting between the plaintiff, defendant, and a judge. The plaintiff and defendant are both given a chance to tell their side of the story to the judge. The settlement conference happens before the case goes to trial.

Reviewed: 
February, 2017
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2. Find out if you must pay court fees

The fee to file a Plaintiff's Claim is $95. If you can't afford the fee, you can ask for a fee waiver.

Standard requirements for a fee waiver

If you get a fee waiver, you won’t have to pay court fees.

You can ask for a fee waiver if your household income is:

  • mainly from Ontario Works, Ontario Support Program, Old Age Security plus Guaranteed Income Supplement, Canada Pension Plan, or War Veterans Allowance
  • less than the amounts listed in A Guide to Fee Waiver Requests

You may also be able to get a fee waiver if you think you have a good reason for not being able to pay your legal fees.

If you're single, you're only eligible for a fee waiver if you make less than $2,000 per month.

You can ask for a fee waiver at any time before or during your court case. But if you get a fee waiver, it will only cover fees you haven't yet paid. You won’t be reimbursed for fees you paid before you got a waiver. There is no charge to request a fee waiver.

To ask for a waiver, complete a Fee Waiver Request to Registrar, Clerk or Sheriff. Once you've completed the Fee Waiver Request, give it to the court clerk at Small Claims Court.

If you don’t meet the requirements

If you meet the standard requirements, the clerk may give you a fee waiver. But if the clerk doesn't give you a fee waiver, you can ask the court to consider your request. This means a judge will look at your situation and decide if you should get a fee waiver.

You can do this even if you don’t meet the standard requirements for a fee waiver. Even if your income is too high or you don’t meet other requirements, you can ask the court to consider your request. But you must have a good reason. For example, you may ask for a fee waiver if you have a medical condition or disability. 

If you get a fee waiver

If you’re approved for a fee waiver, you will get a Fee Waiver Certificate. You need to show your certificate whenever a fee is payable. If you don't, the court staff can’t waive the fee.

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February, 2017
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3. File your claim with the court

What to include

Give your court forms and documents to a court clerk at the courthouse. The documents will be added to your court file. Every court form you complete and all relevant documents you want a judge to look at must be filed by the court.

When you give the court clerk your Plaintiff's Claim Form, include copies of all documents that support your claim. For example, you may include:

  • the contract between you and the defendant
  • any emails or letters between you and the defendant
  • product guides or manuals
  • delivery slips
  • photos or videos that show the product or any damage
  • receipts for the original product, repairs, or other costs

Make copies of the form and all other documents for:

  • yourself
  • the Small Claims Court
  • each defendant

Where to file your claim

Make sure that you file your claim at the right Small Claims Court location.

The court you choose must be:

  • in the town or city where you made a deal with the person you're suing, or
  • in the town or city where at least one of the defendants lives or runs their business, or
  • the court nearest to where at least one of the defendant lives or runs their business.

If you're not sure which location is right for you, call a court office and they will help you.

How to file your claim

You can file your claim online, by mail, or in person at the court office.

If you file your claim in person, the clerk at the court office will review your documents. If any information is missing, they will tell you.

The clerk puts a court stamp and date on all copies of your Plaintiff's Claim. They will keep the original and give the other copies back to you.

If you submit your claim online, you will be emailed a stamped copy of your claim.

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March, 2017
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4. Serve your claim on the defendant

You must give specific forms or documents to the person you're suing. When you do this in a way that is allowed by court rules, it's called serving the documents.

After you file your claim with the court, you must serve it.

To each defendant, deliver a copy of:

  • the stamped Plaintiff's Claim
  • all the documents you filed with the court

You should keep the original copies.

When you give the court clerk your claim documents, the clerk puts a date stamp on it. You must serve your documents within 6 months of the date on this stamp. If you miss the deadline, the court may refuse to let your case go to court and you could lose the right to sue.

How to serve a claim

When you serve a claim, you can serve the claim in person or hire a process server to do it for you.

You may also serve the claim on a defendant using registered mail or a courier.  

If the defendant is a company, the claim must be served to a manager at the place where they run their business. If it's not clear who the manager is, the claim can be served to someone who appears to be in charge. You can also serve the claim by mailing a copy to the company’s head office and to all of its directors.

The person serving the documents should:

  • try to get the first and last name of the person being served
  • take notes on when and how they served the documents

Some people refuse to take the documents. If this happens, the documents can be dropped on the floor in front of them.

The Guide to Serving Documents explains the rules that must be followed.

Proving the claim was served

The person who serves the claim must complete an Affidavit of Service. This proves to the court that the claim was served on the defendants.

The Affidavit of Service must be completed and signed by the person who delivered the documents. For example, this may be:

  • you
  • your lawyer or other legal representative
  • a process server

It's a good idea for the person serving the claim to look at the Affidavit of Service form before serving the documents. That way, they'll know what information must be included and can write down what they do.

The person serving the documents will need to know:

  • the date and time the claim was served
  • where it was served
  • the first and last name of the person the claim was given to
  • whether the claim was served in person, by courier, or by registered mail

You can also serve the claim by mailing a copy to the company’s head office and to all of its directors. If you do this, you need the signature of the person who accepts the delivery. This signature is your proof that the claim was served.

The person who completes the Affidavit of Service must swear it is true. They promise that the information in the document is correct. They do this by signing the Affidavit of Service while someone who has the authority to supervise an oath or affirmation watches. Lawyers or staff at the Small Claims Court have this authority.

Once the Affidavit of Service has been completed, it should be given to the court clerk. The form will be filed with your claim.

Reviewed: 
February, 2017
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5. Get a response

The defendant has 20 days from the day they're served to give you what's called a Defence. In the Defence, they explain why they disagree with all or part of your claim.

No response

If the defendant doesn't file a Defence within 20 days, you can ask the court to "note the defendant in default". This means the court will keep a record that says the defendant didn't follow the rules because they didn't file their Defence in time.

To ask the court to note that the defendant is in default, complete a Request to Clerk (Form 9B). Give the completed form to a court clerk. The court clerk will file the form with your claim.

After you file the Request to Clerk, the court can:

  • decide your claim
  • order the defendant to pay you the amount of your claim
  • schedule an assessement hearing that you must attend to explain to the court what the defendnt owes you

Until you file a Request to Clerk, the defendant can file a Defence. They can do this even after the time limit of 20 days has passed. So it's a good idea to file your Request to Clerk as soon as the 20 days have passed.

Response

If the defendant files a Defence in time, the court sends a Notice of Settlement Conference to both of you. The settlement conference should be no later than 90 days after the defendant files their Defence.

A settlement conference is a meeting with a judge. The purpose is to:

  • make sure you and the defendant know both sides of the story
  • let the defendant know what evidence you plan to use
  • see if there are things you can agree on

Prepare for the Notice of Settlement Conference

You're supposed to file any documents that prove your claim when you filed your Plaintiff’s Claim. But if you didn't include all of the documents or have found more documents:

  • serve them on the defendant, and
  • file them with the court.

You can serve the documents in person, through a process server, by mail, or by courier. The documents must be served at least 14 days before the settlement conference.

The court will also send you a blank List of Proposed Witnesses. On this form, list the names, addresses, and contact information of anyone who can support your side of the story. Once you have completed this form, serve it on the defendant. Then give the form to the court clerk. The List of Proposed Witnesses must be served and filed at least 14 days before the settlement conference.

If you reach an agreement at the settlement conference, you may not need a trial. Even if you only agree on some things, it may make the trial shorter and less complicated.

Reviewed: 
February, 2017
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Ontario Ministry of the Attorney General
Ontario Ministry of the Attorney General
Ontario Ministry of the Attorney General
Ontario Ministry of the Attorney General

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