If you are involved in a dispute with someone and can’t resolve your dispute amicably, you may have to go before the courts to enforce your rights. In Ontario, the Small Claims Court has jurisdiction to award damages up to $25,000 or order the return of property worth $25,000 or less. A quick and efficient resolution of matters, less formal procedural rules and the possibility of representing one’s self are a few of the many benefits of commencing an action in Small Claims Court rather than before the Superior Court of Justice. If you intend to commence an action in Small Claims Court, below are seven tips to help you navigate through this process.
1) Having no standing
This may seem obvious, but before commencing an action the first question you should ask yourself is: “am I allowed to do this?” It is imperative to find out if you have standing. A party has standing if he or she can demonstrate to the court a sufficient connection to the case and the alleged harm. To put this into context, read the following example.
Alberto and Bernadette are married. Bernadette lent $15,000 to Charlie, a friend of hers, on October 30, 2016. She took those funds out of her personal bank account. Charlie agreed to pay back the loan by the following year. It is now past October 30, 2017. Bernadette has contacted Charlie numerous times to inquire about payment of the loan. Charlie keeps avoiding her calls as he does not have the means to pay her back yet. Alberto and Bernadette decide to sue Charlie in Small Claims Court for the amount owed.
While Bernadette may have a claim against Charlie, the same cannot be said about Alberto. The fact that Alberto and Bernadette are married does not automatically make him a proper plaintiff. Because Bernadette withdrew the funds out of her personal account and because the agreement was specifically between Bernadette and Charlie, Alberto has no connection to this lawsuit. Thus, Alberto has no standing in these proceedings.
Naming the proper is plaintiff is crucial as a defendant may seek and obtain costs against a party who is uselessly named as a plaintiff in an action.
2) Naming the wrong defendant
One of the most common mistakes is to write the wrong name of the parties involved in the lawsuit. If you are suing a corporation, be mindful that it may be operating under a business name rather its actual legal name. You may have to obtain a business name report to get the corporation’s full legal name. If you fail to name the correct business in your pleadings, you may be commencing an action against a corporation that has nothing to do with your dispute. This may result in your action being dismissed right off the bat.
Also, keep in mind that a corporation is a separate person than its directors and officers for the purposes of an action. In certain cases, if directors or officers act outside the scope of their duties, they may be personally liable for your loss. In that case, you should put both their names and the name of the corporation in your claim. However, keep in mind the first mistake discussed in this article: do not add directors and officers as defendants for no reason.
3) Not keeping track of dates and deadlines
If you are thinking of suing, don’t procrastinate to deal with your matter – otherwise, it may be too late for you to do anything. In Ontario, under the Limitations Act, 2002, the general deadline to commence an action against someone is two years from the date of the wrongdoing. Take the above-noted example for instance. If Bernadette had lent money to Charlie on October 30, 2015 and had waited until after October 30, 2017 to sue Charlie, Bernadette’s action would unfortunately be statute-barred.
If you are being sued, you also need to keep track of steps in the legal proceedings. As a defendant, you have twenty calendar days from the day you were served with pleadings to provide a copy of your defence to the plaintiff and file it with the court. If the twentieth day falls on the week-end or any statutory holiday, the last due date to serve and file your defence is the next business day. Failing to file your pleadings on time may result in you being noted in default. This means that you can no longer file a defence and are no longer entitled to receive a copy of any other pleading in the suit. As such, the plaintiff could seek a judgment against you for the full claim without notifying you.
4) Not having any relevant evidence
Evidence is the cornerstone of any lawsuit – no evidence, no case: it’s that simple. As the plaintiff, it is incumbent upon you to provide the court with all the information necessary to support your claim. Written agreements, e-mails, text messages, receipts, photographs and videos are generally a good place to start when gathering information to support your allegations.
When putting together evidence, remember quality trumps quantity. Coming into a courtroom with a stack of papers may intimidate the other party; however, the information you have compiled may not prove anything. When looking at a piece of evidence, ask yourself the following questions: • How is this relevant to my case?
• Is this piece of information reliable?
• Is my source of information objective?
• How is this information supporting my position on this case?
If you are defending an action, while the burden of proof does not fall on your shoulders, you should always prepare to rebut the plaintiff’s arguments. As such, take the time to gather evidence of your own and ask yourself the questions outlined above.
5) Refusing to settle
It is often said that there are three sides to every story: the plaintiff’s version of the events, the defendant’s version of the events and finally, whatever the judge decides! While our legislatures have enacted a plethora of statutes, regulations and by-laws to ensure fairness and equality in the legal system, at times, judgments may seem unfair. Therefore, even in the face of what appears to be a “winner case”, it is never a bad idea to try and resolve the dispute before trial. Parties involved in legal proceedings tend to get caught up in the idea of going to trial. Quite often, lawyers hear: “it’s not about the money, it’s a matter of principle!”
Let’s be honest, if you are in court and your goal is something other than to dispute money or property, you are wasting your time (and money for that matter). Rather than relying on a judge to make a decision on your case, take matters into your own hands and come to a resolution with the other party to get some sense of finality of the dispute even if it means cutting way back on your expectations. This will allow you to move on to better things.
6) Expecting the wrong remedy
Remedies other than money or the return of property are not available in Small Claims Court. The maximum amount of damages the plaintiff will be awarded is $25,000 for a single claim. The plaintiff can also request that any agreed upon interest be applied to the damages claimed or have the interest rate stipulated in the Courts of Justice Act (generally around two percent) apply.
Orders that cannot be awarded to you if you are suing in Small Claims Court include:
• Taking down a negative review from a website;
• Releasing confidential documents;
• Freezing assets;
• Moving a fence; and
• Not playing loud music at night.
7) Not getting independent legal advice
One of the benefits of commencing an action in Small Claims Court is the ability to be self-represented. This can be a good option for those with modest means or for claims where the amount in dispute is minor. Regardless of the amount of the claim and the complexity of the matter, it is always a good idea to obtain legal advice from a lawyer to determine your rights and obligations. You should also consult a lawyer to get a better understanding of the Small Claims Court process and ensure you are doing everything necessary to protect your interests. If there’s anything you should be doing, it’s just that.
Karen Kernisant is a lawyer at Aubry Campbell MacLean and practices in the areas of civil litigation, family, employment and immigration law. For more information, please visit our website: acmlawfirm.ca.