Small Claims Court and Law Society Tribunal Frequently Asked Questions

The earlier you contact us in the process, preferably prior to filing your application, the easier it is to mitigate the cost. Fees can range from $295 to ten thousand dollars depending on the situation and if the matter goes to a full hearing. We can discuss your options, costs and timeline at your free 30-minute consultation. Either way we are a fraction of the cost of a lawyer.

Some examples of potential events or conduct that you should disclose are:

• Past discipline from another regulator
• Dismissal from a previous job
• Criminal offences
• Past Judgments
• Bankruptcy or Consumer proposal

This list is not exhaustive and it is best to contact Michelle Haigh to discuss your specific situation

While the Law Society of Ontario may issue your license, if they uncover or are informed of your past misconduct at a later date you will automatically be the subject of a good character investigation and most likely a good character hearing. It will be more difficult to defend yourself at this stage. The application process is a disclosure test and you are best to divulge all past misconduct upfront and address the same. We can assist you with the application process as well as any investigation or hearing.

It is better to always disclose and address any misconduct. If you omit something, even if in error, it appears that you may have deliberately misled the Law Society of Ontario. You may need to address more than the past conduct and explain why you answered questions in your application incorrectly. Sometimes the Law Society takes your failure to disclose more seriously than your past misconduct.

To be licensed as a lawyer or a paralegal in Ontario, the Law Society Act requires that an applicant be of “good character.”  The good character requirement is ongoing, applying to applicants throughout their licensing term.

The good character requirement is intended to protect the public and maintain high ethical standards in the professions by ensuring that persons who are licensed as lawyers and paralegals show respect for the rule of law and the administration of justice and conduct themselves with honesty, integrity and candour.

The following is a list of documents that will help the Law Society consider your application with respect to any affirmative answer to one or more of the good character questions.

This list is offered as a guide only and you should contact Michelle Haigh to discuss the best way to respond when answering affirmative to one or more of the good character questions.

If you do not respond to correspondence from the Law Society regarding your problem of good character, or if you do not provide the documents or information requested by the investigator assigned to your case within the prescribed time, your license application could be considered abandoned. You will not be able to make another claim unless you can demonstrate a material change in circumstances and only after a period of one year from the date your claim was deemed abandoned. 

Although not required, we strongly encourage you to hire a legal representative to help you when you are the subject of a good character investigation.

If you retain the services of a legal representative, you must still respond promptly to inquiries from the Law Society and continue to cooperate with the investigation.

Under s. 27(4) of the Law Society Act , an application for a license can only be refused after a hearing by the Law Society Tribunal, Trial Division. Therefore, at the end of the investigation, it will be determined whether your license application should proceed to a hearing or whether the issue(s) of good character should be considered and the application referred to the licensing process. profession.

The decision on how to handle your request is made on a case-by-case basis. However, the Investigations Department will consider the following:

The facts revealed by the investigation;

If the Law Society can prove the conduct in question;

Whether it is in the public interest to hold a hearing to consider the matter

At the hearing, the Law Society bears the initial burden of proving that the conduct disclosed or alleged calls into question the plaintiff’s good character. It is then up to the applicant to prove that he is of good moral character.

The panel presiding over the hearing will consider the following factors in considering the applicant’s good character:

The nature and duration of the misconduct;

If the applicant has remorse;

What rehabilitation efforts, if any, have been undertaken, and with what results;

The applicant’s conduct since the misconduct;

The time that has elapsed since the misconduct.

Upon completion, the Trial Division will issue a written order to determine if the applicant is of good character and therefore eligible for a permit. Tribunal decisions are subject to the usual avenues of appeal.

The Law Society Act provides that a licence may only be refused after a hearing by the Hearing Division of the Law Society Tribunal.

In the licensing application, an applicant must answer questions that assist the Law Society in determining whether the applicant is of good character. These questions allow applicants to self-report conduct or circumstances that may raise issues about their character. Self-reporting includes providing full and detailed information about the issues and providing any supporting documentation.

If an applicant’s circumstances change after submitting an application, the applicant must immediately notify the Law Society’s Licensing and Accreditation Department to update the applicant’s answers to any of the good character questions, as necessary.

Answering yes to one or more of the good character questions does not necessarily mean that an applicant will be refused a licence.

When an applicant answers yes to one or more of the good character questions, the applicant’s application is reviewed in the good character review process.

The application will be reviewed in the Complaints & Compliance department of the Law Society’s Client Service Centre. This department determines whether the issues disclosed are sufficiently serious to warrant further review by the Law Society’s Professional Regulation Division. In most years, between 40-50% of these applications do not require additional review and are promptly returned to the licensing process.

Applications that are transferred to the Professional Regulation Division are reviewed in the Intake & Resolution department. At this stage, any good character issues are either:

1. “cleared” on the basis that the issues disclosed do not require additional review and are not sufficiently serious so as to require investigation of the applicant’s character;
2. resolved by requesting additional information or clarification that allows the issue to be cleared; or
3. referred to the Investigations department for further review.

At this point, most licensing applications are either cleared or resolved and are returned to the licensing process

If further review in the Investigations department is necessary, the applicant will be notified in writing and will be provided with an explanation for the investigation.

If the good character investigation was initiated as a result of information that the Law Society received from a source other than the applicant, the applicant will be provided with details of that information.

The Investigations department may ask the applicant to provide additional factual information and reference letters, and the applicant will be given an opportunity to provide additional information or explanation about the issue. Third parties may be interviewed, if required. At the conclusion of an investigation, a determination will be made about whether the licensing application should be referred to a hearing, or whether the good character issue(s) should be cleared and the application returned to the licensing process. In making that decision, the Investigations department will consider the facts revealed by the investigation, whether the Law Society can prove the conduct in issue, and, if so, whether it is in the public interest to hold a hearing to explore the issue.

One of the leading types of home renovation complaints is the contractor has abandoned the job after receiving a significant amount of money and doing very little work. Too often in such cases we are confronted with a situation where very little is known about the contractor (e.g. a first name and a cell phone only).  If there is a written contract and the building renovator has missed the deadline to complete it then the homeowner may wish to put the contractor on notice of the default and afford them the opportunity to return to the job site to finish the work.  This is not necessarily required, however, as failure to complete a project on time may be considered a material breach by the court.  From a pragmatic aspect, however, and if one is looking to avoid litigation, then it may be a prudent course of action.

If the contractor has indeed left, or has neglected to return after being the afforded the opportunity to do so, then the home owner is well within their rights to hire another contractor to finish the job.  Before doing that, however, and in possible anticipation of having it sue the original contractor, the homeowner should obtain three quotes from other contractors to finish the project.  This is because the court needs to be satisfied that the costs of completion that are incurred are actually reasonable.

Any amounts spent over and above the original contract price to finish the job would then become the responsibility of the original contractor.  For example, if a homeowner entered into a contract for a $50,000 renovation with a $30,000 deposit and the contractor then abandoned the project mid-way through then the contractor would be responsible for any costs over and above the $50,000 to finish the job.  Consequently, if the homeowner had to hire another contractor to finish the job for a further $30,000 then the homeowners total expenses are $60,000 which is $10,000 more than the initial contract price.  The initial contractor could then be sued for this amount since the homeowner is entitled to be put into the same position as they would be had the initial contract been competed as agreed.

Ontario’s Consumer Protection Act requires the building renovator to draft and present you with a written contract in advance of any work to be completed.  At a minimum the contract requires the following:

• The legal business name, address and telephone number of the building renovator.
• Your name and address.
• An accurate and sufficiently detailed description of the work to be completed.
• The total price for the aforesaid work.
• A timeline for the commencement and completion of the work.
• The date the contract is entered into.

If the contract is entered into at your home, the contract is also supposed to set out your 10-day cancellation rights under the Consumer Protection Act.

In any event, you are supposed to be provided with a written copy of the contract that you can keep for your records.

If you find yourself in a situation where a renovation contract has not been completed as agreed and litigation looks like your only option then we have a few suggestions:

• Take pictures of the incomplete or deficient work.
• Get at least three quotes to fix and/or finish the job.
• Put the contractor on notice that litigation is pending if a resolution is not reached.
• Consult a legal representative before undertaking any legal action.
• Do NOT post any negative on-line reviews as this can interfere with any resolution.

While not always the case, be prepared for the contractor to file a counter claim if you ultimately decide to sue them.  We see this most often in cases of alleged deficiencies.  The homeowner sues for the costs to fix and/or finish the job and the contractor counter sues for the amount left owing on the contract.  It is then left to the judge to determine who is owed how much and why.  Only after such a determination can the claim or counterclaim be properly disposed of.

A word of caution: Home renovation cases are among the most difficult and time-consuming type of cases the Ontario Small Claims Court has to hear.  They often involve multiple issues, legions of deficiencies or incomplete work, dozens or even hundreds of photographs and competing assessments from various contractors, inspectors and even engineers.  All of this makes for a very difficult case for a try judge to adjudicate upon.

We say this not to dissuade you from litigation but rather as a cautionary note and something to take into account when looking to settle a matter without the need to go to trial.

There are generally three things we look at whenever a prospective client calls us about suing in the Small Claims Court regarding a home renovation gone wrong.  Is a case winnable; Is it collectable; and is it affordable to retain us.

Is it Winnable
During our initial consultation we will listen to the fact situation you find yourself in and determine if you have a winnable case based on applicable legal principles, your contract and the Ontario Consumer Protection Act.  Please note that providing an assessment is an ongoing process and our assessment may change as more information becomes available to us during the course of a proceeding.

Is it Collectable
In addition to determining if a case is winnable we also want to explore what are the chances of recovering on a judgment if a matter proceeds all the way to a trial.  If the contractor is a long-established business with many employees and a commercial address then chances of recovery are probably good.  If, however, the contract is a single individual, who has not business address, does not own a home and only has a cell phone for a business presence then collecting on any judgment could be poor.

Is it Affordable to Retain Us
The last thing that we look at is if it is affordable to retain us.  The Ontario Small Claims Court can hear matters up to $35,000 and can award a successful party up to 15% of the claim amount towards their legal fees. The Alberta Small Claims Court can hear matters up to $50,000. Generally speaking, we can offer provide some type of legal assistance for matters greater than $5,000. For matters under that amount it is generally not cost-effective to retain us.

Where situations warrant, a good contractor will properly explore the prospective job site in advance of making a quote or a contract.  Often in these cases, the contractor does not look for more money.  However, some contractors, through accident or design, end up looking for more money part way through the project.  Absent some exceptional circumstances, the contract price put forwarded by the contractor would still apply.

Where we most often see requests for more money are from contractors who were not properly vetted and satisfied all the criteria in our checklist.  Often these are small contractor operations who do not have a lot of money on hand and are either poor at quoting for projects or else are not able to execute them well.  In either event, they find themselves short on money and therefore without the means to finish the project.  This puts the homeowner in a difficult position.

If the work is generally of good quality and the additional amount requested is within 10% of the contract price then the homeowner may wish to pay it.  (It should be repeated that under the Consumer Protection Act a contractor may increase their price by up to 10% of a quoted price.)

If, however, very little work has been done and the contractor is looking for the balance of the contract price then this can be harder to determine how to address the situation.  The contractor has already been exposed to have cash flow issues and there is no guarantee that further payments will result in further work.  In fact, we have seen situations where the contractor took additional monies and then disappeared altogether.  One potential way to manage such a request is to agree to pay for any materials or subtrades directly.  For example, if the work involves a delivery of tiles then the homeowner could pay the supplier directly as opposed to paying the contractor.

If, however, the request is excessive and the homeowner will not acquiesce to it then this will could create a situation where the contractor ends up being in breach of the contract.

There is a saying that good fences make for good neighbours.  We also say that good contracts make for good business relationships.  In order to avoid any confusion or ill will it is highly recommended that any changes to the project be properly discussed, negotiated and committed to writing by way of a change order.  Too often we see situations where a contractor demands payment at the end of a project for changes made by the homeowner and the prices are far more than what the homeowner anticipated. A dispute ensues and litigation sometimes follows.

Technically speaking, the contractor should be putting forward written change orders as they occur and if this is not happening the homeowner should request it or, perhaps, undertake it themselves

Sometimes the work of the contractor is not of good quality and it is discovered either by the homeowner themself, by a building inspector or a third party. This can create a difficult situation.  If the work is being reviewed by a municipal inspector then specific deficiencies may be identified and their remediation monitored and reviewed by the same inspector.  However, in situations where there is no such inspection (and not all work requires municipal inspections) then a homeowner may need to call in another contractor or a specialist.

If the contractor’s work is found to be deficient then technically the contractor has the first to remedy it unless the deficiency is of such an extreme nature that it constitutes a material breach of the contract.  If it is not a material breach and the contractor can and does remedy the deficiency then all is well and good.  It is only in situations where the contractor refuses to remedy the deficiency or it is a material breach that serious problems arise.

In situations where it is not a material breach and the contractor refuses to remedy it then this should be documented in writing.  Specifically, the deficiency should be identified and a deadline for remediation should be set failing which another contractor will be hired to undertake the work and any extra costs will be borne by the initial contractor.

In situations of a material breach the problem should be identified and explained by way of another contractor, expert or engineer and a demand for any additional costs made (or at least have the contractor put on notice for them if they are not readily known at the time).

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 Ontario, carries errors and omissions insurance and must follow a Professional Code of Conduct.

If a Plaintiff’s Claim has been filed within one Ontario jurisdiction but the Defendant is employed in another jurisdiction and you are looking to issue a garnishment, you will need to file a Certificate of Judgment. A Certificate of judgment must be issued by the originating court and filed in the new court where you are looking to enforce the judgment.

• Example: You commenced an action and obtained judgment within the jurisdiction of the Toronto Small Claims Court and now you are looking to serve a garnishment on the Debtor’s employer within the Jurisdiction of the Ottawa Small Claims Court, you will need to obtain a Certificate of Judgment.

Our firm works with different skip tracing companies who can help locate either the Debtor’s current employer, bank account, property, etc. The skip trace company would require as much information as possible, for example current or last known address, previous places of employment or previous banking institutions. With that information they will try to locate any active information on the Debtor so that you may proceed with your Enforcement options

If the debtor does not pay, you can have their assets 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.
4. Payment of an enforcement fee and deposit need to be paid to the enforcement office to cover expenses.

The enforcement office will seize the assets 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.

The court can order a debtor’s employer or financial institute (bank) to pay to you instead of to the debtor. This is called Garnishment. For example, if the debtor is employed and receiving wages from their employer or have money in their bank account, you can ask the court to have the debtor’s employer or financial institute to pay that money into court. The court will then hold the first payment for 30 days before the court clerk issues a cheque to you. A Notice of Garnishment remains in effect for six years from the court issued date. Before the expiration date if the debt amount is not paid in full, you can renew the Notice of Garnishment for an additional six years in order to collect.

If you receive judgment in your favour it does not guarantee that you will get money from the defendant. You may find yourself having to enforce the judgment. In order for you to collect, the individual or business must have one of the following:

1. Money (bank account)
2. Assets that can be sold (property/land or vehicle, etc.), or
3. A debt that is owed to them such as wages, rental income, accounts receivables etc.

It is best to acknowledge the financial status of the defendant before proceeding with a legal action, in doing so, it will give you a better understanding when it comes time to collecting any judgment received in your favour.

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.

If you obtain a judgment in your favour, you may not be able to collect right away. You may have to enforce 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.

Keep in mind, you may have trouble collecting if the person/business is unemployed, filed for bankruptcy, no income, or owes other debts.

An individual or corporation may enforce an out of province judgment in the Ontario Small Claims Court per the Reciprocal Enforcement of Judgment Act. You must file a Notice of Motion and Supporting Affidavit to the court along with a certified copy of the Order from the originating Province. In the Affidavit you will need to explain how the process originated and proceeded through the system in the originating Province. You will need to explain how and when the opposing party was served with the Claim and whether they defended the action. After the Motion materials have been filed, the Ontario Small Claims Court will make an order regarding judgment.

• Example: You reside and have commenced an action in the Province of Alberta only to discover that the Defendant now resides in Ontario. You will need to obtain a certified copy of the Order from Alberta and complete and file a Notice of Motion & Supporting Affidavit with the Ontario Court where the Defendant resides or carries on business.

As the creditor you can request an Examination Hearing, whereas the Debtor will need to attend at the Small Claims Court to answer questions regarding their financial situation. The creditor can ask the Debtor questions about their employment, property, assets, or any land that they might own. An Examination Hearing is beneficial because it provides both the Court and the Creditor with information regarding the Debtor’s financial situation.

If you do not agree with the defendant’s payment offer or payment schedule you can request a terms-of-payment hearing in front of a judge to discuss the matter further.

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.

Once the plaintiff is granted judgment, and the defendant (debtor) has not paid the money owing, the plaintiff can ask the court to hold a hearing about the defendant’s finances. This is called an examination hearing.  Although this hearing is not mandatory, it allows the plaintiff to get information about the defendant’s finances in order to collect. The plaintiff files a Notice of Examination form and an Affidavit for Enforcement Request with the court, and serves them on the debtor.

For debtors who are individuals, the plaintiff will have to serve the noted above documents together with a blank Financial Information Form. Upon completion by the defendant (debtor), they must give a copy to the plaintiff and the judge.

At the examination hearing the defendant will provide information regarding their employment, income, property, bank accounts, debts, expenses and reasons for not paying. Once this information is collected, the judge may order the debtor to make payments on certain dates.

If the debtor does not make the payments ordered, there are 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.

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).

By any means if you are unsure of where to file your claim after reviewing the criteria, you can call the court house where you believe the claim should be filed and speak with the court clerk to confirm.

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 $35,000, 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 are involved. If the amount of your claim is more than $35,000, you can still proceed with Small Claims Court. However, you will have to forfeit the amount of money over $35,000, 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 $40,000 into a $35,000 claim and a $5,000 claim in order to have the total amount dealt with in two cases.

Examples of claims that Small Claims Court handles include:

Claims for money owed under an agreement (liquidated):

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

Claims for damages (non-liquidated):

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

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.

Examples of evidence that would help for a successful case include:

• Invoices
• Returned cheques
• Photographs pertaining to your matter
• Record of payments
• Email exchange

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.

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

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. Contact us if you need representation (15 days notice before your settlement conference, if possible).

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.

The answer is YES. 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.

For claims under $3,500, 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.

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.

The answer is 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.

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 $35,000.00, 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.

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.

Note: If no interpreter is provided at the time of trial, it may result in an adjournment or costs being awarded against the party.

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 other parties have the chance to respond to the motion and fill out their own Affidavit forms stating facts that they want the judge to consider before granting a motion. 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.

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

Steps required to making a motion:

1.Fill out a Notice of Motion and Supporting Affidavit form.

2.Explain what you want and why including the facts supporting your motion.

3.Once a hearing date is obtained for the motion from the court make sure to 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 for the motion. Read the Guide to Fee Schedules for information regarding fees.

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 towards your matter, however, be mindful it may prolong your matter 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.

A Limitation date is a limit on how long you can wait before making a claim.

The basic rule in calculating your Limitation Period is 2 years from the date of the event or default. However, some actions require a more in-depth look at the calculation of the limitation period start and end date. If you have a simple unpaid debt, you can usually rely on the date of the last payment or date of an invoice, to calculate the start of the limitation clock, however, in some cases it may start earlier, or can be extended.

If the claim is regarding an event or damages outside of a simple unpaid debt, the limitation period generally starts from the date of the event, or the date you became aware you may have suffered damages. This can be subjective in some cases and you may want to research the issue of limitations further.

When the limitation period is a question you need to be answered, it is best to contact a paralegal to assist you in determining the date of the limitations.

If you are in negotiations with the opposing party and are approaching your limitation date, you may want to secure your right to proceed with legal by issuing a claim. You do not need to serve it if you reach an agreement with the opposing party. You may also want to protect your limitation period by issuing a claim against the opposing party even if you cannot confirm their address for service or know they cannot pay the debt at the moment, but will likely be in a position to pay in the future.

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 non-liquidated 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.

The Defendant has 20 days within service of the claim to respond. 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.

A corporate search can be done by using an online service by third party companies such as ESC (https://www.eservicecorp.ca/) or Cyberbhan (https://cyberbahngroup.ca/) , or you can contact us at PrecisionParalegal (https://www.precisionparalegal.ca) and we can conduct the search(es) for you for a small fee.

Corporate Searches can cost roughly $50 per document and you may be able to claim these fees back in your judgment.

A corporate search or business names search is likely one of the most neglected parts of litigation by a self represented party.

It is extremely important that you conduct searches on the business you are suing prior to issuing a claim. If you do not name a party correctly, it can be impossible to collect the funds due to you. Further, if you make a mistake in naming a party you can get to the stage where judgment can be obtained but you can be forced to amend your claim and basically start the process all over again.

A business names search will tell you if the company you are suing is a corporation, sole proprietorship, or partnership. It is important to know which type of company you are dealing with because the rules of serving the claim will be different for each. Also, you may be able to sue the owner of the business depending on the type of company it is.

A Corporate Profile Report tells you the registered head office address for the company and the names and addresses of all the directors and officers for the corporation. It also can confirm if the corporation is still “active” (being Active does not confirm the company is still operating, just that they continue to have an active company registered with the government). The report will also advise you when the company was registered, in what province, if it’s a federally incorporated company, and if it has any registered business names. All of this information is helpful when deciding who to sue, where to sue, and where to serve the claim amongst other things.

A business search on a sole proprietorship or partnership will tell you the properly registered business name as well as the registered owner or partners in the company. You will want to name both the business and the individual(s) who own the company. The search will tell you the registered address for the business as well as the names and addresses of the owner/partners. The search will also advise if the company is still active and when it was first registered.

If you are attempting to search for a company and you cannot locate it, there may be other options available to you. You should contact a paralegal to assist you in determining the best way to move forward.

It is extremely important that you conduct searches on the business you are suing prior to issuing a claim. If you do not name a party correctly, it can be impossible to collect the funds due to you. Further, if you make a mistake in naming a party you can get to the stage where judgment can be obtained but you can be forced to amend your claim and basically start the process all over again.

You can sue up to $35,000.00 in Ontario Small Claims Court.

When writing your Small Claims Court it is important to follow these simple rules:

• Keep it simple
• Keep to the facts.
• Number your paragraphs
• No need to recite the evidence you will rely upon
• Use dates and be specific wherever possible
• Explain what lead up to the event, what happened to cause the conflict, Why the other side owes you money, explain attempts to obtain payment, and how do you calculate the amount owing.

The judge will decide what kind of substituted service will be permitted. Types 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, several tries should be made 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 the following:

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

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

Once your claim is issued, you have a very specific time period to serve the claim. In Ontario you have 6 months to serve your claim, and in AB you have 1 year. If you cannot serve your claim within this time frame you will need to file a motion or application to extend the time for service.

The individual making service will provide the party with a copy of the document(s). If more than one party is being served, then each party much be served with their own copy of the document(s). For instance, if you have named two defendants on a claim who share the same address, you must send a copy of the document(s) to each party in separate addressed, sealed envelopes. Remember, once the other party has been served, an Affidavit of Service must be completed for each party served with a document.

The court office will accept a defence for filing as long as the plaintiff has not noted the defendant in default. If the defendant has been noted in default, the Rules provide that the party cannot file a defence or take any other step in the proceeding. The party will need to make a motion to set aside the noting of default, without leave of the court or the plaintiff’s consent.

It is recommended to attempt to serve the document at varying times of the day and on weekends. This is important if the legal documents do not get served and as you will need to prepare and file an Affidavit of Attempted Service. In the affidavit the court will want to know that you have tried at appropriate times of the day.

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 time frame.

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

3. an officer, a director or another person authorized to act on behalf of the corporation, or
4. 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;

The estimated cost of a process server ranges from $85-150.00 in most cases. The cost may vary depending on the location of the party being served and the type of document being served. Most process servers will provide you with a quote before you decide to hire them and will usually include up to 3 attempts in serving the document before they close their file.

The answer is 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 period.

If a party did not receive a document that was supposed to have been served on them under Rule 8, or was received after the specified time frame allowed under the Rules, the party can bring a motion to the court for the order they need in the circumstances.

For example: Where a defendant does not receive the claim but receives a default judgment from the court, they may wish to bring a motion to set aside the default judgment and an extension to file a defence. If a defendant receives a notice of motion less than 7 days before a hearing date, they may request an adjournment in order for them to have more time to prepare.

The answer is no, if personal service is not required under the Rules. Most often service of documents are sent by mail or by courier, dropping it off at an office, or having someone serve on your behalf.

At times distance may make it inconvenient or impossible for an individual to serve their own documents. It may be an awkward or potentially confrontational situation which may make it uncomfortable. If sending the documents 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. Contact Precision Paralegal if you are looking for a process server.

You may also ask a friend to do it for you. If you have a friend in another town where the other party is located, you may be able to mail it to a friend there and have them serve it for you.

Note: An Affidavit of Service will have to be filed with the court that is signed and sworn or affirmed by the person who served the document

You may find yourself unable to serve your claim because the party has moved and you cannot find a forwarding address. You might be under the impression 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.

Rule 8 for Service 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, most cases it is the party’s responsibility to serve their own documents on the other parties. The rules below 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.

If the person you are looking to sue normally lives in Ontario but is away, for instance, they took up a job in Montreal, you can serve the claim on the person in Montreal just as you would if they were residing 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 they 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.

If you are serving the claim yourself on a business:

• Do you have a corporate search? If not, you will want this prior to issuing and/or serving your claim. See our video on “suing a business” or “what is a corporate search”
• it must be hand-delivered to the company and left with the person in charge at the time of your attendance.
• If there is only one person in attendance at the time of service, they are assumed to be in charge
• You need to obtain the name and position of the person you leave it with
• You need to take note of the date and time you serve it.
• If the company is no longer at the registered head office address, and you have attempted to serve the claim there, you can send it by regular mail to the address, and to the address of all directors outlined on the corporate profile report

A process server is someone who is trained to serve legal documents. Different types of documents can be served in different ways. A process server knows all the rules of service and determines the proper way to deliver the legal documents.

Once they serve the documents, they prepare all the necessary paperwork required to prove to the court that the legal document was served. This is called an Affidavit of Service. If the process server makes several attempts to serve a document but is unsuccessful, they will generally provide you with a document called Attempted Affidavit of Service. This affidavit can be used to assist you in obtaining an order by the court to serve the document in a different way, not normally permitted by the rules.

Most process servers will attempt to serve the document at varying times of the day and on weekends before they close their file. This is important if the legal documents do not get served and you need an Affidavit of Attempted Service, as the court will want to know that you have tried at appropriate times of the day.

If you are serving the claim yourself on an individual:

• obtain the name of the individual in the household that you are giving the claim to, if not the party you are serving – if they don’t provide it to you, that’s ok.
• No signatures are required when serving a claim on your own
• Take note of the date and time of the service
• Do not leave it with someone who appears to be under the age of 16
• If serving them at work, you must hand-deliver it to the person you are suing. You cannot leave it with anyone else at the place of work.
• You cannot leave the claim in a mailbox or at the front door.
• Someone must be home to accept service. If they choose not to accept service you can leave it at their feet, but only after confirming the individual lives at the address with the party, you are serving.

If you find yourself 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 for instance, serving at a place of residence: permitted by the following rules.

Rule 8 States:

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.

A defence is your response 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 (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).”

To serve a document by means of personal service, refers to you, or someone acting on your behalf, will hand the document to the party (for example, the defendant(s)). 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 their feet. The person who serves the document would note this in his or her affidavit of service because it is a related detail.

The onus in on the individual to ensure the court and the other parties in the matter have an updated and proper address in order to serve documents on the party. If the individual’s address changes, they must serve written notice of the change on the court and other parties within seven days after the change takes place. Detailed notes should be kept as to when and how the individual served their new address on each party in the matter and the court. Also, be prepared for court, they may require an Affidavit of Service in the near future regarding service.

If the court or other parties are not advised by the change of address, they are entitled to serve documents at the old address, which means you will not be fully informed about the current status and relevant information in your matter. Orders may be made without your knowledge and in your absence.

If you received judgment in your favour (successful), you may be entitled to recover some costs.

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

If someone was hired to serve the document on your behalf, you must provide the court office with a detailed invoice or statement detailing the amount paid to have the document served. A maximum of $60 per person to be served can be claimed regardless of the amount paid or number of attempts made to serve the document, unless the court orders otherwise under Rule 19.01(3).

The court office will accept a defence for filing as long as the plaintiff has not noted the defendant in default. If the defendant has been noted in default, the Rules provide that the party cannot file a defence or take any other step in the proceeding. The party will need to make a motion to set aside the noting of default, without leave of the court or the plaintiff’s consent.

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, 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

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 letter-mail, 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.