Ontario Small Claims Court Procedures
What you need to know
Ontario’s Small Claims Court is one branch of the Superior Court of Justice for qualifying money claims, including claims to recover personal property. Its procedure is designed to resolve disputes proportionately and efficiently. It introduces a simplified process, designed to be friendly for people taking their own claims to court. The process still requires careful attention to the pleadings you enter, follow the rules for service, disclosure, and obey the court deadlines to obtain results. The court is governed by the Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 22–25.
Jurisdiction and governing approach
The court may hear an action for payment of money or recovery of personal property where the value does not exceed $50,000, exclusive of interest and costs. Any cause of action cannot be split into multiple claims to bring it within the court’s monetary limit. But a claim can be made either by multiple parties or against multiple parties. When a claim exceeds the monetary jurisdiction of the Small Claims Court, for example a claim for $62,150.00 then it is possible to take advantage of the process by waiving the excess amount.
Where a claim falls within Small Claims Court jurisdiction, it generally must be started there rather than in the Superior Court, unless leave is obtained.
In any case the court will determine questions of law and fact summarily and may make any order that it considers just and equitable to good conscience. The Rules’ current primary objective is a just, expeditious, and least expensive determination based on the merits of the case and the evidence provided at the trial. However not all claims are heard in a trial
At Invictus Legal LLP, we resolve a high percentage of our cases through either the formal Settlement Conference or negotiations outside of the court.
Watch the Video by Peter Giblett and Angela Browne about Small Claims procedures, here:
Starting the Small Claims action and responding
A plaintiff starts an action by filing a Plaintiff’s Claim, using Form 7A. The claim must identify the parties involved, describe the events and legal basis of the claim with reasonable detail, state the amount and relief sought, and provide an address where the defendant may be served. If the claim relies on a document, a copy must generally be attached. The governing regulations are, Rules of the Small Claims Court, O. Reg. 258/98, r. 7.01.
The claim must be served personally or by an authorized alternative to personal service, generally within six months after the original claim was issued.
Any defendant who wishes to dispute the claim made against them must serve and file a Defence, Form 9A, within 20 days after service. The defendant may also bring a responding action, called a Defendant’s Claim against another person; ordinarily, that claim must be tried with the main action although this claim may include additional people.
When no defence is filed, the plaintiff may seek a default judgment. When the claim relates to an unpaid invoice the court can issue default judgement. Most claims requires an assessment of damages when there is a default judgement. In such a case, the plaintiff must prove the amount claimed, although liability need not be proved against a defendant noted in default. If a defendant is defaulted, than the claim enters the enforcement track.
If a defendant has filed a defence, the plaintiff generally proceeds through the defended-action process instead.
Settlement conference, disclosure, and trial
A settlement conference is required in a defended action and is typically held within 90 days after the first defence to the claim is filed, subject to the rule’s stated exception. Where it is not possible to serve all the defendant parties befor the settlement conference then the Plaintiff(s) should raise a motion for alternative service. Depending on timing of the motion hearing the settlement conference my need to be rescheduled.
Settlement conferences are typically held by videoconference.
At least 14 days before the conference, each party must serve and file the known documents intended for use at the trial, together with a list of intended witnesses and other persons with knowledge of the dispute. The settlement conference is intended to narrow the known issues, promote settlement of the case, and assist trial preparation; the court may make orders concerning the action, including orders for document production, where compliance is typically required within 30 days.
The settlement conference may be held through a caucus process where each of the parties go off into a separate room, other judges prefer to keep the parties in the same room.
Setting Dates.
After the conference, any party may request that the clerk fix a trial date, subject to payment of the required fee, $308. The court may also set a trial management conference for more complex cases.
At the trial, the court may receive qualifying written statements, documents, and records served at least 30 days beforehand, unless the judge orders otherwise. A party needing a witness may serve a summons, ordinarily at least 10 days before trial, and must tender the required attendance money.
Depending on the location of the court the trial may be delayed a considerable period of time. Invictus Legal staff have experienced delays as long as two years since the COVID era. Be patient, you will get a date, eventually.
Continuing Offers
Just because you went through the settlement conference and could not come to an agreement. perhaps you heard something during the conference that convinved you that settlement is possible. The court encourages settlement. There is a standard court form that will permit either side to advance an offer to settle with the other side. Such offers may be time limited, including up-to the end of the trial. Do not sent any offers to settle to the court at this time, this is used to convey to offer to the opposing parties.
Motions, costs
Motions generally require a notice of motion and supporting affidavit. The moving party obtains a hearing date from the clerk, serves the materials to all other parties, at least seven days before the hearing. All files must be provided at least three days beforehand.
In Van de Vrande v. Butkowsky, 2010 ONCA 230 (CanLII), the Court of Appeal for Ontario explained that a motion under rule 12.02 to strike or amend a document operates in the context of the court’s summary procedure. It is not equivalent to a conventional summary judgment motion requiring a party to put its “best foot forward”; rather, it permits early termination where appropriate, including where continuation would be inflammatory, wasteful, or a nuisance. The case cautions against turning such a motion into a full factual trial.
For such motions, a successful party may recover reasonable disbursements and, if represented, may receive a reasonable representation fee.
If a trial is held then the Judge will ask whether settlement offers were made. The courts encourage the use of offers. where no offers are made then the small claims court will grant costs of 15% of the original claim amount. Where offers are made by the winning party will be awarded 30% costs.
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