How Matters Proceed In Ontario Courts
If you are owed money by a business or an individual in Ontario, the Small Claims court may be able to help you in recovering this money. This is only applicable to debts that does not exceed $25,000.00.
Money owed to you can arise from unpaid debts, unpaid service provided and duly invoiced, bad workmanship, unfulfilled or partially fulfilled contracts, overpayment of an invoice etc.
You should always seek legal advice to ensure that you indeed have a legitimate case before proceeding as you may be required to pay the defendant costs if your claim is found to be frivolous or if your claim was made in bad faith.
You are the plaintiff in a case when you initiate the proceedings. It is very important to state very clearly in your Statement of Claim (also referred to as plaintiff’s claim) why you believe you are owed the amount that you are claiming and also the exact amount that you believe that you are owed.
Seeking legal assistance from a qualified and experienced legal practitioner is very imperative to ensuring that your claim is accurate and complete before filing. Once you file your claim, make sure to attach copies of any documents that you will be relying on to buttress your claim.
Examples of supporting documents are promissory notes, receipts, invoices, contract agreements, email correspondences, photographs of property damage, returned cheques etc. If you decide to file your claim online, make sure to provide the courts with all the hard copies of your supporting documents.
Once your claim has been successfully filed, you must serve a copy of court endorsed claim on the debtor or respondent also known as the defendant. Depending on your situation, you may have more than one defendant in your matter. If this is the case, you will also need to ensure that all the co-defendants are separately served a copy of your court endorsed plaintiff’s claim and supporting documentation.
After you have successfully served the defendant or defendants, you must now complete an Affidavit of Service to satisfy the court that the defendants have received notice of your claim. Your case will not proceed if you cannot satisfy the court that the defendants have been properly served with your claim.
Once you have completed your Affidavit of Service and file it with the court, the defendant has 20 days to respond to your claim either disagreeing entirely with your claim or just agreeing to a portion of your claim. This is called the Statement
of Defense and the defendant may also bring a claim of their own (counter claim) in this Statement of Defense.
In the event that no defense statement is filed with the court within 20 days after an Affidavit of Service has been completed, on the 21st day you should go back to the courthouse that has jurisdiction over your case and ask the court clerk to “Note the Defendant in default”.
After the defendant has been noted in default, you may then ask the court for a default judgement. This means that you are petitioning the court to grant your claim in its entirety. A judge will move to grant this request and you will have won a default judgement because your claim is uncontested.
The only downside to this is that a defendant may make a motion to the court to set aside this default judgement and the motion may be granted if the court is satisfied with the defendant’s reasons for bringing the motion.
If your claim is contested by the defendant, the court will set up a mandatory Settlement Conference for both parties to resolve the matter amicably and prevent the matter from proceeding any further.
It is very important to attend the Settlement Conference even if you are the plaintiff as failure to attend may result in costs being awarded against you.
It can be very helpful to have legal assistance when you are attending a Settlement Conference even if you believe that you have a legitimate case. An experienced legal representative will help you with negotiations with the defendant especially if the defendant has hired a legal representative or if the relationship between both parties has broken down significantly.
At the conference, a deputy judge or a court assigned referee will preside over the meeting. Both parties will be given the chance to talk about the issues raised in the claim with a view of reaching a settlement. The deputy judge or referee will also provide both parties with their expert opinion on the claim and the possible outcome of the matter if it should proceed to trial. This is to encourage an early resolution between both parties and save money as well as the court’s time. After discussing the issues raised in the claim and no agreement is reached, the matter will be set down for trial.
At the trial, a trial judge will weigh all the information provided by both parties and render a final judgement on the matter.
The judgement may be further appealed to the divisional court if unsatisfactory for either parties.
As of September 1, 2017, a claim may be dismissed if more than two years have passed since the claim was filed.
This article was prepared and written by Daniel Abiodun, Licensed Paralegal and does not in any way constitute legal advice. If you think you have a credible claim and need legal assistance, you can contact him at (705) 795-1880 or via email firstname.lastname@example.org