What is Small Claims Court & When Should a Case be Started There?

Make no mistake, the Small Claims Court of the Superior Court of Justice is still very much a real Court. Its practice is actually much closer to its big sibling the Superior Court than it is to a much less formal board or tribunal. The Ontario Small Claims Court has complex rules of procedure and evidence, though the timelines to get to trial tend to be much faster than in Superior Court, with fewer intervening steps. And the cost of losing (or reward of winning) is limited to cash or return of property in the value of $25,000 or less. 

Can't I Do My Small Claim Myself?

While some litigants choose to go to Small Claims Court without legal representation, we don't advise doing so. This is not because representing people is our business - we have other work outside of the Small Claims Court to make a living on - rather, it's because of the mistakes we see made by the self-represented and the stress people suffer from trying to do it themselves, but who become bogged down by the rules of procedure and evidence. 

Yes, the mythology is that anyone can do a Small Claim. And yes, even we believed that mythology before we started to regularly go to Small Claims Court and witnessed first hand just how out of control cases can get for those representing themselves. Now, we're convinced people need help. 

Even though the price of losing in Small Claims Court is limited to cash or a return of property valued at not more than $25,000, you can still wind up as a judgment debtor which may significantly adversely affect on your credit rating. 

Aren't Lawyers a Waste of Money for Small Claims?

Yes, using a lawyer will cost you more than doing the claim yourself. But that's true with any professional service. 

Using a lawyer may not be any more expensive than using a paralegal. We've actually occasionally seen paralegal fees far exceeding our own fees. Seriously. Just because paralegals have fewer qualifications, doesn't mean they are cheaper. Paralegals can represent value in some instances, we're just suggesting that you carefully weigh the actual costs, and what you're getting for your money. 

You may be able to recoup some of your legal fees through a court costs award, that can range up to 15% of the value of the amount claimed by or against you ($3750 if it is a $25,000) claim. That can be multiplied in two if there is a counter-claim (defendant's claim) ranging up to $25,000, because that can also merit up to 15% in costs. Costs aren't a guarantee, but they can at least lessen the legal expense blow, and you can't mostly claim them if representing yourself (other than for a modest representation fee, and disbursements). 

We Offer Manageable Small Claims Court Fees

We understand that no one wants to spend more on legal fees than a case is worth. We offer flat all-inclusive fees for all Small Claims Court matters, so that you can weigh the cost versus benefit of using a fully qualified lawyer to handle your claim for you. 

Our initial Small Claims Court block fee involves:

  1. meeting with you personally or through electronic means to gather and analyse the facts of your case, review and organize your documentary exhibits, and provide you with advice on your case prospects and recommended strategies;

  2. drafting of your statement of claim or statement of defence for service on the opposing party and filing with the court;

  3. serving and filing your claim or defence, including the filing fee;

  4. preparation for your court supervised settlement conference, plus attendance and representing you at the conference, including settlement negotiations with the opposing party and the court;

  5. preparation for your trial including service and filing of all required documents, and preparation of you and other as witnesses to testify;

  6. attendance and representation at up to a one day Small Claims Court trial.

Optional extras to our block fee Small Claims Court Package, also charged at block fee rates are:

  1. pre-trial motions (a flat fee is charged for the drafting, service, filing and argument of each motion, if any are necessary, or response to an opposing party's motion);

  2. expert witness retention, report review, and preparation of that expert for testimony;

  3. additional days of trial beyond the first day (many claims will finish in one day, however trial length is usually a function of how many witnesses and documents are involved, and the overall complexity of the issues);

  4. post-trial debtor examination and collection of judgment, or defence of those issues for you.

We are also prepared to take over Small Claims Court cases that our clients have initiated or started defending themselves. Fees for partially completed cases will depend on how many steps in the case have already been taken, and whether any work should be improved upon. 

Small Claims Court Appeal Lawyer

In Ontario, all Small Claims Court appeals head to a single judge of the Divisional Court, sitting in the local judicial district where the small claims court trial was heard. 

We Offer Unbundled Legal Services for Small Claims Appeals

Although the amount in dispute in Small Claims may not be as great as in other cases, the firm is regularly retained to assist on such appeals. Sometimes we just provide advice and drafting services for the notice of appeal, including developing the grounds of appeal. At other times we handle the entire appeal. We recognize that cost is an issue for Small Claims appeals, and always quote block fees for such cases so you can assess whether retaining counsel is worth it. 

Small Claims appeals are just as technical as any other appeals, and considerably more technical than Small Claims trials, thus obtaining the assistance of legal counsel can be a great benefit, even if you don't have a lawyer actually do the oral argument of the appeal for you. 

The Small Claims Court Lawyers

Contact William G. Stephenson, our Small Claims Court firm practice leader, to learn more. 

Further Reading on Small Claims Court Procedure

Top Small Claims Court Mistakes to Avoid