Small Claims in Ontario – 5 Basic Steps [video]

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This lecture provides an overview of the basic steps in a small claims court in Ontario.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone, this is Amer Mushtaq from You Counsel. Today, we will provide you with an overview of the basic steps in a Small Claims matter in Ontario. If you have watched any of our other videos, you will notice that we have a video on six basic steps in a Civil Action in Ontario. Small Claims is slightly different, the steps are slightly different, a little bit simpler, but we’ll cover those in today’s lecture.

Before we begin we will talk about our disclaimer that this course is not legal advice, so if you have any specific questions you must contact a lawyer or a paralegal.

We have talked about these two legislations in many of our videos; these are the basic legislations that apply to civil matters, the procedures in Ontario Courts. They have rules that govern the steps in which a matter can proceed in courts. The Courts of Justice Act is the overarching legislation, and underneath we have Rules of Civil Procedure which deal with matters that are Superior Court of Justice, and then we have Small Claims Court rules which deal with matters that relate to Small Claims Court. You can Google both of these legislations and they are available online for free and you can review and understand the information that is provided in these legislations.

So what are some of the basic steps in a Small Claims Matter? The first step is pleadings, which is no different than any other step. Pleadings is if you are issuing a claim then you prepare your claim and you serve it. If you are a defendant you prepare your defense and you serve and file it. So those are called pleadings. If you have a counter claim, it has a slightly different name in Small Claims Court, we’ll explain that. But pleadings are really your fundamental case. Why you are asking the court to do certain things for you. Either you’re asking money, then you explain in the pleadings how much money you are asking the court to order against the other party and what are your reasons. Similarly if you’re defending what are your reasons for the court to say that they must throw the plaintiff’s case out. Second step is witness list you’ll have to serve and file a list of your witnesses that will go to trial; we’ll talk about it. We’ll talk about in Step Three additional documents that you may need to serve. Step number Four is a Settlement Conference and the final step is trial.

Okay so if you are the plaintiffs if you are the party was commencing the court action then you will prepare what’s called the claim. The forms for the claim are available online, you just type in Google “Rules of Small Claims Court Forms” and you will see that all of those are listed here, let me sort of give you an example so you can see what those forms are. Type in “rules of small claims court forms” here it is. And lets open these forms so I can show you. All of these forms are numerically listed, and generally the forms relate to the specific rule that is in Small Claims Court. So Plaintiff’s Claim is Form 7A, you can click on it and open the document in Word, and you will see that it has a lot of information that you need to fill out, and we’ll explain that in a separate lecture. But this is the Plaintiff’s Claim form you can add additional documents to it, and then get it issued from the court and then serve and file it. So that’s essentially what your claim is.

You have similar documents for defense, and in some cases if you are the defendant and you have a counter claim against the plaintiff then you can complete a document called Defendant’s Claim, and then and then have it issued and served on that on the plaintiff. And similarly you may have cross claims and what not. It gets a bit complicated depending upon what your position is, who are the parties that need to be involved in this. But these documents, the basic documents, which provide your story, or the defendant’s story, or the plaintiff’s story, are called pleadings. The pleadings are the first step, they need to be prepared and served on all parties that are involved.

Now witness list is something that you need to serve and file. This needs to be prepared 14 days before the Settlement Conference, and if you have any additional documents in Small Claims procedure unlike Superior Court, you provide your evidence at the outset of the commencement of your claim. So when you are preparing your claim – and we’ll talk about it in a separate lecture – you actually prepare all of the evidence, documentary evidence that you have in your possession, you provide copies of that with the claim. So those documents are already provided, your entire case is actually in your claim. And similarly the defense provides all the copies of documents that they will rely on. But before you go to a Settlement Conference, if you discover that there are additional documents that are relevant, then you must serve those documents 14 days before trial. And then if you have witnesses for your case, if you are the plaintiff and you are the only person who was a witness, then your name goes in the witness list. If you have additional witnesses that you will bring to trial then you must provide those witnesses’ names in that witness list. And there is a form for the witness list, it is available again online you can download it and fill out that witness list information in there.

Okay we talked about documents, additional documents and so you must understand that the document has a very broad, very expansive definition in the rules. We have talked about it in the Rules of Civil Procedure and I want to show you a similar definition here in the Rules of Small Claims Court. I Google it and I opened “Rules of Small Claims Court.” If you scroll down to Section 1.02 Sub 1 you will find a definition of Document: “Document includes data and information in electronic form,” so it’s a very broad definition and then it goes on to explain what is electronic. And that includes “created, recorded, transmitted, or stored in digital form or in other intangible form by electronic magnetic or optical means or by any other means that has capability of creation, recording, transmission or storage similar to those means and electronically has corresponding meaning.” So essentially anything that exists in any form tangible intangible that can be produced is considered a document. Photos, text messages, emails, you know Word documents, P.D.F. documents, video recordings, audio recordings, all of those are documents. Sometimes even the data about the document may become relevant too, because when let’s say a word document is created it has a digital imprint when the document was created, who created it that sort of information and that’s called meta data, and that may be relevant in some cases too, so all of that needs to be produced.

So you want to make sure that all relevant documents that you are supporting to plead your case must be provided to the other side, and must be filed with the court so that you can fight your case.

Once the pleadings have been completed the court office automatically schedules what’s called a Settlement Conference. What you want to understand is the name implies Settlement Conference meaning that it is an opportunity to see if the matter can be settled. The Settlement Conference is arranged before a deputy judge. These deputy judges are the same judges who preside trials, so they have expertise in reviewing your matter, but remember that the deputy judge who will be presiding, who will be sitting in a settlement conference will not be the person who will take your case at trial. There are always two different people and the reason behind this is that at the Settlement Conference the court expects you to talk openly, confidentially, and see that the matter can settle. And therefore the judge who is sitting at the Settlement Conference may be privy to information that he shouldn’t know at trial because that may impact his judgment. So deputy judges at Settlement Conference are always different, but they will be presiding other trials in other matters so their expertise is the same.

Usually the Settlement Conference is scheduled for about 45 minutes so you can imagine that in 45 minutes you don’t have much time to discuss, you know, the merits of your case, you briefly talk about it. But then the essential goal is to see if you can find common grounds to resolve this matter, and the common saying that goes in the legal world is that if both parties walk out of the Settlement Conference unhappy, then the matter is settled properly because both have made compromises.

Settlement Conference is Without Prejudice. What that means is you can speak freely, whatever you say at Settlement Conference cannot be used against you at trial, and the same thing applies to the other side that if they share some information or state something that you know that is confidential then you cannot use that at trial against them. If the matter does not settle the deputy judge narrows down the issues so, what are the issues for trial? He or she may make a summary of those issues after discussing with you and all the parties, and then the deputy judge will ask about number of witnesses. You know the witness list is there by that time, so the deputy judge will determine what is the appropriate trial length, and he will mark it down in the endorsements. And on that basis when you schedule for trial the court office will schedule a trial for that length.

If the matter does not settle a Settlement Conference, then if you are the plaintiff then you will have to fill out the form that is required to schedule the trial. And there is a fee that you have to provide, so you provide that fee, you schedule the trial, and once you have submitted that document only then the court office will schedule a trial based on the number of days that are appropriate for your case. And at trial the trial will be presided by a deputy judge, who will review all the facts, who will listen to your evidence, your witnesses and then make a determination whether your position is the correct one or not. So that’s sort of the overall process of Small Claims Court. The process has been designed generally so that people can plead their cases without the need for a counsel or a paralegal, these are for matters $25,000 or less and so they’re supposed to be straightforward matters, but the procedural issues get sometimes complicated and if you end up in that situation that you may want to consult a lawyer or a paralegal just to make sure that you’re on the right track.

You want to make sure that you read the rules, read them cover to cover so that you can understand sometimes circumstances arise that you were not anticipating but if you have read the rules then you will be able to deal with those at that time. Make sure that you understand that there are forms for each step and so whatever steps you have to take look out for the forms, fill them out properly and then and then submit and serve them. Remember that a settlement can occur at any time from the time that you have issued the claim or you’ve filed a defense, you can always talk to the opposing side and figure out if the matter can be settled. It can be settled one minute before trial, it can be settled during trial, it can be settled before the court has issued its judgment. So there are great opportunities to settle and you should always explore settlement opportunities because the costs of taking a matter, even in Small Claims Court, could be much higher. So you want to make sure that at the overall process is worth your time and effort.

Hopefully this gives us a sense of the basic steps of Small Claims Court. We’ll keep building on it in our future courses, and if you have any comments please feel free to share those with us, and I look forward to seeing you in the next lecture thank you.

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