Small Claims Courts are designed to be a relatively quick and easy way to seek justice in comparison to the otherwise cumbersome and costly civil court system. While there is debate on increasing the maximum to $100, 000 (Alberta recently raised the ceiling) presently Ontario limits claims to $35,000 and lower. You don’t require a paralegal (or lawyer) to file, (or defend against), a claim. That doesn’t mean that there couldn’t be a benefit to hiring someone, at least in the more challenging areas. But professional help is optional.
Small Claims is part of the Ontario Superior Court system and follows similar practices. However, the rules and procedures are more relaxed and accommodating for self-represented litigants who have chosen careers outside the legal profession. The court plays a vital role in the administration of justice in the province by ensuring meaningful and cost-effective access to justice for cases involving relatively modest claims for damages.
This page is a general overview of the process. To keep it focused, I am inserting links for those seeking more specific information ie the Rules of the Small Claims Court, which can be found here, making a motion in small claims which is found here, and appeals are on another page here. If you have been served and are being sued in small claims then you will want to check out this page Ontario Small Claims Court Explained – Defending Against a Claim
Bear in mind that time is always a factor in filing a claim. Generally, you have 2 years from when the matter in question arose, but not always. For example, municipal slip and fall suits are statute-barred if notice is not given within 10 days of the incident. The paperwork can be filed later but notice must be given.
It’s also worth noting that you can not split the case up to stay under the 35K threshold. Filing two separate claims, that originate from the same contract, but total more than $35,000 is a no-go. Separate contracts would be allowed but a suit deemed under the same contract is not.
Your claim will be likely based on traditional legal theories ie negligence, defamation, or breach of contract. The rules governing the procedures generally involve filing a statement of claim, serving the other parties, a settlement conference and a trial if the issues can’t be resolved.
Statement of Claim
To initiate an action, the claimant must use the Plaintiff’s Claim Form 7A, which can be found here. That link also contains other forms that are likely to be necessary, such as the Defence (Form 9A) and List of Proposed Witnesses (Form 13A). If there is more than 1 plaintiff you will need to complete the Additional Parties Form (Form 1A). An additional 1A form would be used if there is more than one defendant.
The first step to completing a Plaintiff’s Claim is locating the address of the court you wish to file your claim. Most often this would be the area where you live, the place where the dispute arose, or where the defendant is located. There must be some nexus to the dispute to give the court jurisdiction, but generally, the person filing the claim chooses the venue. Court locations are listed on the Ministry of the Attorney General site here.
You enter the plaintiff’s details in the plaintiff section, i.e. the legal name, address and phone number of the party commencing the action. Next, list the details of the defendant in the same manner. If the defendant is a corporation, you will need to search the Ontario business name registry online or at Service Ontario locations. This is important as you must use the legally registered name of a business. Many sole proprietors and corporations use registered business names in their ventures (DBA, or doing business as).
Set of Facts
On page 2 of the Plaintiff’s Claim, you will need to write out the concise basis for your claim. Essentially, you are trying to state (briefly) what happened, and if possible under what basis (legal theory) the Court may grant you relief.
When writing the ‘facts’ keep in mind the courts have found that the higher standards of pleading in the Superior Court are simply unworkable in the Small Claims Court. Litigants are routinely unrepresented, and legal concepts, such as the many varieties of causes of action, are completely foreign to the parties.
Subject to considerations of fairness and surprise to the other side, essentially, the litigants present a set of facts and it is left to the Judge to determine the legal issues that emerge from those facts and bring his or her legal expertise to bear in resolving those issues.
The facts should set out the cause of action. For example, merely saying someone breached the contract is short on detail. Alternatively saying, they breached the contract when they…. You are providing a summation of the details of how the contract was breached.
- The plaintiff and defendant met on this date 2024, to discuss building a deck similar to the one on the neighbour’s house
- The defendant agreed to build a deck for x amount of dollars.
- The defendant came and started the deck but only partially completed the job.
- The plaintiff called the defendant numerous times to schedule having the work completed. The defendant stopped answering their phone
- The plaintiff hired XYZ Deck Builders to complete the project.
- XYZ Deck Builders invoiced the plaintiff $X amount to finish the work
- The plaintiff paid a lot of extra money for the project
Writing ‘facts’ as numbered paragraphs, in chronological order, and with one thought per paragraph goes a long way towards making the judge’s work easier. Also, leave the emotions for ‘over coffee with your friends’. Claiming the defendant was mean isn’t a fact that will help your cause. The judge is already aware that some animosity most likely exists between the parties.
On page 3 of the Plaintiff’s Claim, enter the monetary amount claimed, make a selection of the type or amount of interest, date and sign. Unless there is an agreed interest rate in the contract, you would select the box for the Court of Justice Act.
Fees
You must pay a fee for most steps in a Small Claims Court proceeding, including:
- filing a claim
- filing a motion
- requesting a trial date
- taking steps to enforce a judgment
Fee Waivers
If you cannot afford to pay the fees, you can ask the court to waive them. If you request a fee waiver, the court will consider your financial situation and decide whether you meet the requirements to qualify. If you do not meet the requirements, but cannot afford to pay court fees, you can ask the court to have your situation evaluated by a judge.
If you meet the requirements and the court agrees to waive the fees, you will get a certificate called a fee waiver. Show this certificate to court staff if they ask you to pay a fee.
Each request is reviewed based on the form and documents you submit. The decision of staff or a judge is final. If your financial situation changes, you can request a fee waiver again. There is no cost to apply for a fee waiver.
Next Steps
Once you have filed the claim with the court clerk, you will need to serve the claim (including the list of proposed witnesses) upon the defendant, either personally, or through a process server (at a typical cost of between $50.00 and $100.00).
The Defendant then has to file their defence. If the defendant doesn’t respond within a set time frame you can request a judgment in default from the court. If the defendant does respond you will move to the settlement hearing.
Attend the Settlement Conference, and if you can’t agree upon a dollar number for settlement, request the first trial date that works for you. To request a trial date, you will need to complete a ‘Request to Clerk‘ form 9B, and pay the fee (currently $308).
If not settled, attend at trial, and reiterate the facts and evidence for your claim. For this, you may wish to call witnesses, present exhibits and also conduct legal research on CanLii to find similar cases. The Small Claims rules, with a couple of exceptions, does allow any evidence to be admitted ie oral testimony, document, or other things, as long as the evidence is relevant to the subject matter of the proceeding, Bear in mind, the rules also allow the other side to question the validity of any evidence presented.
Limit on costs
An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 percent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.
Getting Paid
If not paid after judgment, read the Ministry’s Guide to Getting Results. The most practical way to collect in most cases is either through a debtor exam or a writ of seizure and sale (land) if the defendant owns the property. Writs are only valid in the region where the debtor’s property is located.