FAQs

The following are a collection of frequently asked questions about paralegals, Ontario Small Claims Court and our services that we think you may find helpful. Remember that you can always contact us as we would be happy to answer any of your questions.

Not each paralegal will charge the same.  Some will charge by the hour while some will provide you with a flat rate fee.  At Precision Paralegal Services LLP we will charge you a flat rate fee for most of our services so that you will know exactly what you will be charged before retaining us.  For more information on our fees click here.

Yes, f you retain a paralegal you can claim back some of the fees that you are charged.  The Small Claims Court Rules put a limit on how much you can claim back from the other party and you must be successful with your claim or defence in order to recover those fees.  You can also increase the costs that you recover by showing the court that you attempted to settle the matter prior to going to trial.  There are rules and restrictions around cost orders.  At Precision Paralegal Services we make all attempts to recover as much of your costs as possible.  Contact us for more details.

While some legal costs can be recovered in Small Claims Court, the amounts awarded to successful parties are significantly limited by the Rules of the Small Claims Court and the Courts of Justice Act. This is why it is important that you seek legal representation that is experienced with Small Claims Court litigation, and offers fees that are proportional to the nature of these claims.

In cases where the parties reach a settlement out of court, your paralegal may agree, as part of the settlement with the other party(ies,) to include some amount in the agreement to cover some of the legal expenses of the litigation.

In matters that proceed to trial, the Rules of the Small Claims Court (in conjunction with section 29 of the Courts of Justice Act) provides that a successful party may recover expenses associated with legal representation fees (i.e. your paralegal fees) for up to 15% of the amount being claimed in the action. That means that if the action seeks an award of $20,000 dollars, the successful party may be awarded up to $3,000 in legal’ fees. Generally, a successful self-represented party will not be awarded more than $500 for the inconvenience and expense associated with the action.

Parties may be able to recover amounts in excess of this 15% rule for their paralegals fees in cases where a successful party made an offer to settle, that was not accepted by the opposing side, and the party obtains a judgment that is as favourable, or better than the offer. The cost consequences associated with this failure to accept an offer cannot amount to more than twice the costs that would be awarded to the successful party.

Disbursements (other costs associated with the litigation) are recoverable in addition to the paralegals fees, though there are also some limitations provided in Rule 19 of the Rules of the Small Claims Court. For example, a party will not normally be awarded more than $60 for the costs to effecting service (per defendant). The amounts of disbursements associated with preparing a Plaintiff’s Claim or Defendant’s Claim shall not exceed $100. Examples of other costs that may be recovered in addition to your paralegals’ fees are expert fees, copying costs, and reasonable expenses for travel and accommodation.

The Rules of the Small Claims Court also provides that a penalty may be awarded against a party which has unreasonably complicated or prolonged the action, though this type of award is rare.

Since all these rules are complex, you should be represented by someone familiar with them in order to maximize the costs that may be awarded to you if you are successful in the litigation. A competent representative will also help minimize the costs awarded against you, if you do not succeed in your claim

There are several ways a Defendant can respond to a Plaintiff’s Claim. The defendant may:

  • agree to pay all of your claim in full or by way of payments;
  • oppose all or part of the claim;
  • make a claim against you and/or another party, called a Defendant’s Claim.

The defendant may file a Defence disputing all or part of your claim. The Defendant may also file a Defence admitting to the full claim, at which time they must also make a proposal on how they will pay the amount to you.

If the Plaintiff’s Claim is disputed in all or part, the Small Claims Court then sets a date for a settlement conference. If the Plaintiff’s Claim is not disputed, and a payment proposal is outlined, the Plaintiff has 20 days to dispute the terms of payment, by requesting that a Terms of Payment hearing be scheduled.  If a Terms of Payment hearing is not requested within this timeline, the Plaintiff is deemed to have accepted the offer outlined in the Defence.

 

If you obtain a judgment in your favour, you may have to enforce (attempt to collect) the judgment. In order for you to collect, the person/business must have one of the following:

  • money (bank account)
  • assets that can be sold (property/land or vehicle, etc.), or
  • a debt owed to them, such a wages, rental income, accounts receivables, etc.

We often say that getting your judgment is only half the battle.  Collecting on your judgment can be difficult, especially if the Defendant is currently unemployed and/or does not own any property.  However, your judgment does not expire, but once it is over 6 years old you will require the courts permission to issue a garnishment.  These orders are generally granted, as long as you can show that you continuously attempted to locate the Defendant or their employment/assets on a continuing basis.  You don’t want it to look like you have abandoned the judgment at any time.

Getting judgment in your favour does not guarantee that you will get money from the defendant. You may have to enforce (attempt to collect) the judgment. In order for you to collect, the person/business must have one of the following:

  1. money (bank account)
  2. assets that can be sold (property, vehicle, etc.)
  3. a debt that is owed to them such as wages, rental income, accounts receivables etc.

Knowing the financial status of the defendant is fundamental to starting any legal action and then collecting on any judgment in your favour. There are situations which require that a person exercise discretion as to whether there is a realistic likelihood of recovering monies owed.

You can have the court order someone else who owes money to the debtor to give it to you instead of to the debtor. For example, the debtor may be receiving wages from an employer or may have money in the bank. You can ask the court to make the debtor’s employer or bank pay this money to the court. The court will then pay you. This is called garnishment.

If the debtor does not pay, you can have their things seized.

To do this:

  1. Fill out and bring to the court a Writ of Seizure and Sale of Personal Property form or Writ of Seizure and Sale of Land and Affidavit for Enforcement Request.
  2. The court will give you forms to take to the enforcement office.
  3. Give the enforcement office details about the items you want taken and where to find them.

The enforcement office will seize the goods or land and sell them at a public auction. The enforcement office will pay the amount received for the goods to the court. Part of this money will be used to pay the court back for costs like storing the goods and advertising the sale. You will receive the money that is left over, but not more than you are owed.

After judgment has been granted, if the defendant (debtor) has not paid the money owing, you can ask the court to hold a court hearing about the debtor’s finances. You are not required to have this hearing to take steps to get money from the debtor, but it can help you get information you need to get your money. You do this by filing a Notice of Examination form and an Affidavit for Enforcement Request with the court, and serving them on the debtor.

If the debtor is an individual (not a corporation), you would serve these documents together with a blank Financial Information Form. The debtor must complete this form and give a copy to you and the judge. This form is not filed in the court file.

At the hearing the debtor must give information about their job, income, property, bank accounts, debts, expenses and reasons for not paying. After looking at this information, the judge may order the debtor to make payments on certain dates.

If the debtor does not make the payments ordered, you have two options for trying to get the money:

  1. Garnishment (e.g., bank accounts or wages)
  2. Seizure and sale of personal property or land.

 

At the terms-of-payment hearing the defendant must show how much they can afford to pay and when. The judge may order the defendant to pay sooner than the defendant wanted. The judge could also order the defendant to pay a different amount than what was offered.

If the defendant does not file a Defence within the specified time limits, or contact you to resolve the claim, you can file a Request to Clerk form to note the Defendant in default for failing to file a Defence.  This will prevent the Defendant(s) from filing a Defence after the timeline has expired without first bringing a motion for the courts permission to do so.

If the claim is for a liquidated debt (unpaid invoice, loan agreement, etc.) you may also request the clerk of the court to issue a Default Judgment.  You must complete the form yourself.

If your claim is for damages or an unliquidated debt (damage to property, injury, etc.) then you can either file a motion in writing to request judgment or request an Assessment hearing so that a judge can decide on the appropriate amount of the judgment and any associated costs you are requesting.

A motion is a formal request to a judge to make an order about your case. Anyone who is a party to a case can make a motion.

Motions can be helpful but they can also make the case take longer and cost more money.

Examples of motions in small claims court:

  • A defendant could ask the court for more time to send in a Defence or a Defendant’s Claim.
  • A party could ask the court to resolve a specific issue in the case, for example to extend time to pay costs ordered by the court.
  • A party could ask the court to change an order that has already been made. For example, the defendant could ask the judge for an order to overturn default judgment granted against him or her.
  • The defendant could ask the judge for an order stating that the money owed has been paid in full, or goods returned

To ask a judge to make an order (decision) about your case, you must make a motion.

Steps to making a motion:

  1. Fill out a Notice of Motion and Supporting Affidavit form.
  2. Explain what you want and why. Explain the facts supporting your motion.
  3. Obtain a hearing date for the motion from the court. Write this date on the Notice of Motion and Supporting Affidavit form.
  4. Serve the Notice of Motion and Supporting Affidavit on the other parties. This must be done at least seven days before the court date for the motion.
  5. Bring to the court the completed Notice of Motion and Supporting Affidavit and an Affidavit of Service at least three days before the court date for the motion.
  6. Pay the court filing fee. Read the Guide to Fee Schedules for information about fees.

The other parties have the chance to respond to the motion. They can fill out their own Affidavit forms stating facts that they want the judge to consider. Any response must be served on the other parties and filed with the court at least two days before the court date for the motion.

If the judge grants your motion, you can ask the judge to make the other party pay some of your costs. These costs can include court filing fees, representative fees, and expenses for witnesses, photocopying, faxing and delivery of documents.

The maximum amount you can sue for in Small Claims Court in Ontario is $25,000.00.  However, if your damages are more than $25,000.00, you are permitted to reduce the amount of the claim in order to proceed in the Small Claims Court.  The maximum amount of $25,000.oo is for the principal portion of your claim only, your legal costs and interest can be claimed over and above the $25,000.00.

Yes, you will need correct information about who you are suing to properly prepare and serve your claim, and to enforce a judgment if you are successful.  If you obtain a judgment against a person or company and the name is incorrect, you will likely not be able to collect your funds.  It’s important to properly prepare your initial Plaintiff’s Claim.

You can only sue for money or the return of personal property valued at $25,000.00 (Canadian) or less, not including interest and costs. If the amount of your claim is more than the current limit, you may still choose to use Small Claims Court because it is simpler and less expensive. However, you will have to give up any future attempt to recover the excess amount over the Small Claims Court limit, even in another court.

Copies of documents that you intend to use to support your claim must be attached to the Plaintiff’s Claim form if you decide to go ahead. If it is just your word against the other person’s, it may be more difficult to prove your case.

Yes, you will be required to form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.  It is very important to retain and attach any documents that you have to support your claim.  The more evidence you have the greater chance of success.

Remember, the other party is able to respond to your claim and may give evidence that will affect the judge’s view of your entitlement.

There may be a time limit on how long you can wait before making a claim, which is set out in the Limitations Act. In most cases this is 24 months. If you are uncertain about what limitation period applies to your case, you should contact us.

The Small Claims Court can handle any action for the payment of money or the recovery of possession of personal property where the amount claimed does not exceed $25,000, excluding interest and costs such as court fees . This includes the value of all goods that the plaintiff is asking for in total, no matter how many defendants there are. If the amount of your claim is more than $25,000, you can still choose to use Small Claims Court. However, you will have to give up the amount of money over $25,000, as well as any future right to get this money in any other court.

You cannot divide the amount of money you are claiming into separate cases. You cannot, for example, divide $30,000 into a $25,000 claim and a $5,000 claim in order to have the total amount dealt with in two cases.

Examples of claims that can be filed in the Small Claims Court include:

Claims for money owed under an agreement:

  • unpaid accounts for goods or services sold and delivered
  • unpaid loans
  • unpaid rent
  • NSF cheques;

Claims for damages:

  • property damage
  • clothes damaged by a dry cleaner
  • personal injuries
  • breach of contract

Deciding where to file your claim is an important decision. A claim must be filed in the court office that satisfies any of the following criteria:

  • the court in the territorial division where the cause of action arose (i.e. where the event took place or problem occurred);
  • the court in the territorial division in which the defendant lives or carries on business (if there are several defendants, then it can be the court in the territorial division in which any one of them lives or carries on business); or
  • at the court’s place of sitting that is nearest to the place where the defendant lives or carries on business (if there are several defendants, then it can be the court nearest to the place in which any one of them lives or carries on business).

If you’re suing a company, you must use the legal name of that company. We can help you find the correct name of a company by conducting a simple search on the business name. There is a small fee involved.

 

You must serve the Plaintiff’s Claim on the defendant. To serve a document means getting it to the defendant. There are different ways to serve a defendant, depending on whether the defendant is a person, a company or an unincorporated business or partnership. For example, if the defendant is a person, you can serve them by personally handing the Plaintiff’s Claim to them, leaving a copy of the claim with an adult member of the same household as the Defendant and also mailing a copy, or sending it to them by registered mail.  You can also retain the services of a Process Server to effect service on your behalf.  You can recover up to $60.00 towards the fee you pay to the process server if you are successful with your claim.

After the defendant has been served, you must complete an Affidavit of Service to prove how and when the defendant was served.

A claim is the first official notice of the case that the defendant (the person you are suing) will have. For this reason, there are special requirements for serving the claim in the Rules. The Rules provide for several specific types of service of a claim. How you serve the claim, and on whom, depends on what type of defendant is being sued (for example, whether the defendant is a person or a company).  The rules state “8.01(1) A plaintiff’s claim or defendant’s claim (Form 7A or 10A) shall be served personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.” We can help you determine the best way to serve your claim. Contact us for a free consultation.

A plaintiff’s claim and defendant’s claim must be served on the defendant within six months after the date the claim is issued by the court. If there is more than one defendant in the case, all defendants must be served within this timeframe.

Yes. A plaintiff can file a motion to request an order to extend the time for service. You must explain to the judge why you were not able to serve the claim within the six months.

If the person you are suing normally lives in Ontario but is away (for example, working on a job in Montreal), you can serve the claim on the person in Montreal just as you would if he or she were in Ontario.

If the person lives or carries on business outside of Ontario, you could serve your claim on the person outside of Ontario just as you would if he or she lived or carried on business in Ontario. If you request it, the court may award additional costs to you to cover any extra expense involved in serving the claim outside Ontario.

When you try to serve your claim, you might find that the party has moved and you cannot find a forwarding address. You might believe that the party knows you are trying to serve the claim and is avoiding you. In either case, you may file a motion to seek an order for substituted service under Rule 8.04. The Rule states “8.04 If it is shown that it is impractical to effect prompt service of a claim personally or by an alternative to personal service, the court may allow substituted service”. The method ordered by the court is substituted for the method(s) of service allowed for that particular document and on that particular party in the Rules.

The judge will decide what kind of substituted service will be permitted. Examples of substituted service you might request are:

  • leaving the claim with a relative of the defendant;
  • mailing the claim to the address of the defendant’s employer; or
  • posting the claim on the door of a particular residence or other place

Before asking for an order for substituted service, you should already have tried several times to serve the document by the method or methods provided by the Rules. Be prepared to give details of how you tried to serve the claim, what happened and why the method of service you are asking for will succeed.

If the court makes an order allowing substituted service, you must serve on the party:

  • a copy of the order;
  • the notice of motion and supporting affidavit; and
  • the claim.

Note: In Small Claims Court, an order made by a judge is generally set out in an endorsement record. An endorsement record is the official document that records the judgment or court order.

A defence is your answer to the claim. The Rules provide for several types of service of a defence. How you serve the defence, and on whom, depends on what type of plaintiff is suing you (for example, whether the plaintiff is a person or a company). The rules state: “8.01(14) The following documents may be served by mail, by courier, by fax, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03, unless the court orders otherwise: 1. A defence. 2. Any other document not referred to in subrules (1) to (13).”

You have 20 calendar days from the date you were served with the claim to serve and file your defence. After 20 days, the plaintiff can have you noted in default. After the 20 days have passed, you may still try to serve and file your defence. The court office will accept your defence for filing as long as the plaintiff has not filed a request to note you in default.

The court office will accept your defence for filing as long as the plaintiff has not filed a request to note you in default. If you have been noted in default, the Rules provide that you cannot file a defence or take any other step in the proceeding, except making a motion to set aside the noting of default, without leave of the court or the plaintiff’s consent.

To serve a document by means of personal service, you, or someone acting on your behalf, will hand the document to the party (for example, the defendant). The person serving the document must first be satisfied that the person being handed the document is in fact the party. If the party refuses to take the document, you can drop it on the floor at his or her feet. The person who serves the document would note this in his or her affidavit of service because it is a related detail.

Depending on who you are serving changes the personal service requirements in Ontario Small Claims court. The rules state:

Personal Service

8.02 If a document is to be served personally, service shall be made,

Individual

(a) on an individual, other than a person under disability, by leaving a copy of the document with him or her;

Municipality

(b) on a municipal corporation, by leaving a copy of the document with the chair, mayor, warden or reeve of the municipality, with the clerk or deputy clerk of the municipality or with a lawyer for the municipality;

Corporation

(c) on any other corporation, by leaving a copy of the document with

  1. an officer, a director or another person authorized to act on behalf of the corporation, or
  2. a person at any place of business of the corporation who appears to be in control or management of the place of business;

Board or Commission

(d) on a board or commission, by leaving a copy of the document with a member or officer of the board or commission;

Person Outside Ontario Carrying on Business in Ontario

(e) on a person outside Ontario who carries on business in Ontario, by leaving a copy of the document with anyone carrying on business in Ontario for the person;

Crown in Right of Canada

(f) on Her Majesty the Queen in right of Canada, in accordance with subsection 23(2) of the Crown Liability and Proceedings Act (Canada);

Crown in Right of Ontario

(g) on Her Majesty the Queen in right of Ontario, in accordance with section 10 of the Proceedings Against the Crown Act;

Absentee

(h) on an absentee, by leaving a copy of the document with the absentee’s committee, if one has been appointed or, if not, with the Public Guardian and Trustee;

Minor

(i) on a minor, by leaving a copy of the document with the minor and, if the minor resides with a parent or other person having his or her care or lawful custody, by leaving another copy of the document with the parent or other person;

If you are unable to serve a document by means of personal service, you may choose an “alternative to personal service.” This means that you are choosing another method of service (e.g. at place of residence) permitted by the Rules. The rules state:

Alternatives to personal service

8.03 (1) If a document is to be served by an alternative to personal service, service shall be made in accordance with subrule (2), (3) or (5); in the case of a plaintiff’s claim or defendant’s claim served on an individual, service may also be made in accordance with subrule (7).

At Place of Residence

(2) If an attempt is made to effect personal service at an individual’s place of residence and for any reason personal service cannot be effected, the document may be served by,

(a) leaving a copy in a sealed envelope addressed to the individual at the place of residence with anyone who appears to be an adult member of the same household; and

(b) on the same day or the following day, mailing or sending by courier another copy of the document to the individual at the place of residence.

Corporation

(3) If the head office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with the Ministry of Government Services, service may be made on the corporation

(a) by mailing or sending by courier a copy of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address and

(b) by mailing or sending by courier a copy of the document to each director of the corporation as recorded with the Ministry of Government Services, at the director’s address as recorded with that Ministry.

 

The Rules must be followed when serving small claims court documents. In some cases it is the clerk of the court who will serve documents by mail. However, in most cases it is the party’s responsibility to serve his or her own documents on the other parties. The rules outline how specific documents are to be served.

Default Judgment

8.01 (4) A default judgment (Form 11B) shall be served by the clerk, by mail or by fax, on all parties named in the claim.

(4.1) Despite subrule (4), if a plaintiff’s claim was issued electronically under rule 7.04, the clerk may serve the default judgment on the plaintiff by email to the email address provided by the plaintiff for the purpose, if these rules permit it.

Assessment Order

(5) An order made on a motion in writing for an assessment of damages under subrule 11.03(2) shall be served by the clerk to the moving party if the party provides a stamped, self-addressed envelope with the notice of motion and supporting affidavit.

Settlement Conference Order

(6) An order made at a settlement conference shall be served by the clerk by mail or by fax on all parties that did not attend the settlement conference.

Summons to Witness

(7) A summons to witness (Form 18A) shall be served personally by the party who requires the presence of the witness, or by the party’s representative, at least ten days before the trial date; at the time of service attendance money calculated in accordance with the regulations made under the Administration of Justice Act shall be paid or tendered to the witness.

Notice of Garnishment

(8) A notice of garnishment (Form 20E) shall be served by the creditor,

(a) together with a sworn affidavit for enforcement request (Form 20P), on the debtor, by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03; and

(b) together with a garnishee’s statement (Form 20F), on the garnishee, by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

Notice of Garnishment Hearing

(9) A notice of garnishment hearing (Form 20Q) shall be served by the person requesting the hearing on the creditor, debtor, garnishee, co-owner of debt, if any, and any other interested persons by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

Notice of Examination

(10) A notice of examination (Form 20H) shall be served by the creditor on the debtor or person to be examined personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

The person making service will provide the party (by whatever method of service being used) with a copy of the document. If there is more than one party being served, each party must be served with his or her own copy of the document being served. For example, if you are serving two parties at the same address by mail or by courier, you must send a copy of the document to each party in separate addressed, sealed envelopes.

No. If personal service is not required under the Rules, often service of documents will be fairly simple – either sending it by mail or by courier, dropping it off at an office, or having someone serve it for you.

Sometimes distance makes it inconvenient or impossible for you to serve your own documents. Sometimes it may be an awkward or potentially confrontational situation. If sending the document by mail or by courier is not allowed under the Rules, there are professional process servers who will serve the document for you, for a fee. You can get the name of a process server from the yellow pages of the telephone directory.

You could also ask a friend to do it for you. If the party you are serving is in another town, you might be able to mail it to a friend there and have him or her serve it for you.

Remember, you will have to file with the court an Affidavit of Service [Form 8A] that is signed and sworn or affirmed by the person who has served the document.

If you are successful in your claim, you may be entitled to recover some costs.

If you served the document by mail or courier and you wish to recover the costs, you must provide the court office with a receipt showing what you paid.

If you hired someone to serve the document for you, you must provide the court office with a detailed invoice or statement setting out the amount paid to have the document served. You can ask for a maximum of $60 per person to be served regardless of the amount paid or number of attempts made to serve the document, unless the court orders otherwise [Rule 19.01(3)].

It is up to you to be sure that the court and the other parties in the case always have your proper address so that they can serve documents on you. If your address changes, you must serve written notice of the change on the court and other parties within seven days after the change takes place. Make detailed notes of when and how you served your new address on each party and the court. The court may require an affidavit of service at some future time, so you will need to keep a record of these details.

If you do not advise the court and the other parties of your change of address, they are entitled to serve you with documents at your old address. That will mean you are not fully informed about what is happening in your case. Orders may be made without your knowledge and in your absence.

If a party did not receive a document that was supposed to have been served on him or her under the Rules, or received it after the timeframe allowed under the Rules, the party can bring a motion to the court for the order he or she needs in the circumstances.

For example, where a defendant does not receive the claim but receives a default judgment from the court, he or she may wish to bring a motion to set aside the default judgment and extend the time to file a defence. In another example, if a party received a notice of motion less than 7 days before the hearing date, he or she may request an adjournment of the motion in order to have more time to prepare.

Only specific documents can be served by registered mail or courier.  If it can, then the document is considered to be served on the 5th day following the date of mailing.

However, if you served the claim on the defendant by an alternative to personal service by registered mail or courier, you need the signature of the individual, or any person who appears to be a member of the same household, verifying receipt before service is effective. See Part Two of this guide for more information on service of a claim.

You cannot file your affidavit of service until after the date the document is deemed to be served.

The Rules state:

Service by Mail 8.07 (1) If a document is to be served by mail under these rules, it shall be sent, by regular lettermail or registered mail, to the last address of the person or of the person’s representative that is, (a) on file with the court, if the document is to be served by the clerk; (b) known to the sender, if the document is to be served by any other person. (2) Service of a document by mail is deemed to be effective on the fifth day following the date of mailing. (3) This rule does not apply when a claim is served by registered mail under subrule 8.03(7).

Note: Regular mail includes postal services provided by Canada Post, including Priority Courier and Xpresspost, unless otherwise ordered by a judge.

If a document can be served by courier, then the document is considered to be served on the 5th day following the date on which the courier verifies to the sender that the document was delivered.

However, if you served the claim by an alternative to personal service by having it couriered to the defendant, it is considered to be served on the day the signature verifying receipt of the claim was received. See Part Two of this guide for more information on service of a claim by courier.

You cannot file your affidavit of service until after the date the document is deemed to be served.

The rules state:

Service by Courier 8.07.1 (1) If a document is to be served by courier under these rules, it shall be sent by means of a commercial courier to the last address of the person or of the person’s representative that is on file with the court or known to the sender. (2) Service of a document sent by courier is deemed to be effective on the fifth day following the date on which the courier verifies to the sender that the document was delivered. (3) This rule does not apply when a claim is served by courier under subrule 8.03(7).

Note: Although the service provided by Canada Post is called “Priority Courier” it is not courier service for the purposes of this rule. It is considered to be regular mail service.

If a document can served by fax, then the document is considered to be served on the day of transmission, if transmission takes place before 5 p.m. on a day that is not a holiday. If it is transmitted after 5 p.m. or on a holiday, it is considered to be served on the next day that is not a holiday. If the document is more than 16 pages long, read Rule 8.08 below to find out when you may fax it.

The rules state:

Service by Fax 8.08 Service of a document by fax is deemed to be effective, (a) on the day of transmission, if transmission takes place before 5 p.m. on a day that is not a holiday; (b) on the next day that is not a holiday, in any other case. (2) A document containing 16 or more pages, including the cover page, may be served by fax only between 5 p.m. and 8 a.m. the following day, unless the party to be served consents in advance.

The person who served the document must fill out an Affidavit of Service [Form 8A] setting out who was served, and when and how service was made. Generally, you are not required to file the affidavit of service with the court until you are ready to proceed with your next step, or a judge orders that it must be filed. For example, if you want to ask the clerk to note the defendant in default, you would file your affidavit of service of the claim at the time you make the request.

If a copy of a document has been served on more than one person, then you would need to complete an affidavit of service for each person served.

To fill out an Affidavit of Service [Form 8A], follow the instructions on the form. You must describe:

  • the name of the person who served the document (e.g. you or a representative or friend) and where they are from;
  • the name of the person who was served;
  • when the document was served (day, month and year);where the document was served (e.g. house number, apartment number, street name, city, and province);
  • what document was served (e.g. a claim, defence, or notice of motion); and
  • the method of service (e.g. by personal service, service at place of residence, service by registered mail, courier, regular lettermail, or fax).

If you served the documents, then you must swear or affirm that the information in your affidavit of service is true. If you had another person serve the documents, then that person must fill out the affidavit of service and swear or affirm that the information in the affidavit is true.

The affidavit must be signed in front of a person authorized to take oaths and affirmations (i.e. a commissioner for taking affidavits). The commissioner will ask the person making the affidavit to swear or affirm that the information in the affidavit is true, will ask that person to sign the affidavit, and will sign the affidavit as sworn or affirmed. Do not sign the affidavit before going to the commissioner.
Note: It is a criminal offence to swear or affirm an affidavit you know is false

If the defendant fails to serve and file a defence within 20 days of being served with the claim, you can ask the clerk to note the defendant in default. When calculating the 20-day time period, count the number of days following the date that service was effective by excluding the first day and including the last day. If the last day falls on a holiday, the period ends on the next day that is not a holiday.

In some cases, the other party may contact you directly and offer to pay you or try to settle your claim in some way. If that happens, you’re free to come to whatever arrangement you like or direct them to your legal representative. If you’re happy with the defendant’s offer, you don’t have to continue with your lawsuit. However, you should prepare a Terms of Settlement form for all parties to execute so that your agreement is in writing.  You can then file the Terms of Settlement with the court to keep them apprised of the situation.

Settlement conferences are to take place in every defended action within 90 days after the first Defence is filed.

These conferences are very informal and normally involve the parties, their legal representative (if any), and a Deputy Judge (who will not be gowned). They normally last between 30 minutes to an hour.

The manner in which settlement conferences are conducted will largely depend on the Deputy Judge. Some Deputy Judges will hear the parties summary of the issues and then offer their own thoughts, while others proceed to ask specific questions to the parties or their paralegals right from the beginning.

Having a competent representative beside you at the settlement conference will ensure that you make the most if it, and in many cases, facilitate the prompt resolution of your matter without the need to go to trial.

The purpose of the settlement conference is first and for most, to determine if the case can be resolved without the necessity of a trial.  If the matter cannot be resolved, the presiding Deputy Judge will help the parties narrow the issues and prepare for trial.  Procedural orders may be made by the settlement conference judge, such as an order for disclosure of specific documents, or an order to extend or shorten a timeline for a party to complete a certain task.

Witnesses do not go to the settlement conference. The parties explain what the witnesses will say if the case goes to a trial.

Yes. The parties can also settle the case by talking about it outside of small claims court. There does not have to be a written offer. If the case is settled in this way, the parties should make an agreement in writing and sign it.

If there is no agreement between the parties, the court will hold a meeting no later than 90 days after the first Defence is filed with the court. This is called a settlement conference. All parties must attend unless the court orders otherwise. This meeting usually takes place in a private room with the judge and the parties sitting around a table.

The goal of this meeting is to find a solution both parties can accept. If it is not possible to find a solution for the whole case, the judge will try to get the parties to agree on some of the issues. If all issues are not settled at this meeting, then a trial will be planned.

For claims under $2,500, parties who cannot reach an agreement at the settlement conference may ask a judge to decide the case at the settlement conference. If the judge decides the case at the settlement conference, the case ends and there is no trial.

An interpreter translates communication from one language to another. Small Claims Court provides interpretation services for all court proceedings and written documents from English to French and French to English. If you or your witnesses will need language interpretation in court from French to English or English to French, notify the court office at the outset of the case.

Interpretation from English or French to any other language must be arranged for, and paid by, the party who requires the interpretation. The interpreter must be accredited as being capable of performing that function.  You cannot use a friend or family member to interpret for you or your witness.

The length of a Small Claims Court trial varies significantly based on the complexity of the issue(s).  Since the monetary jurisdiction of the Small Claims Court was raised to $25,000.00, multi-day trials in Small Claims Court have become more frequent.  While some matters can last just a couple hours, some can last up to several days.  The length also depends on the number of witnesses and how well the parties are prepared.

A paralegal is a trained professional who can assist you in a variety of legal matters.  A paralegal is licensed by the Law Society of Upper Canada and carries errors and omissions insurance and must follow a Professional Code of Conduct.  To learn more about what areas of law a paralegal can assist you with click here.