The information provided below is offered to help you prepare to make a claim in Small Claims Court if you do not have a lawyer. The information provided below is not legal advice, and it may not apply in every situation.
Before making a claim, there are a number of factors you may want to consider, and a number of pieces of information you will need to collect. Listed below are the "who", "where", "what", "when" and "how" of filing a claim. For more detailed information, see the Small Claims Court guides called What is Small Claims Court? and Guide to Making a Claim (also available at any court office). Some Family and Small Claims Court forms can be completed using the Forms Assistant program.
- Do you know the legal name of the person or business and a current residential or business address? 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. For information on how to search a corporation or registered business name, you may contact the Companies Helpline, Ministry of Government Services. Please note that there is a fee for the search and the search will not be conducted over the phone. The Helpline can be reached at (416) 314-8880 or toll free in Ontario at 1(800) 361-3223. Before requesting a search, you must have the exact name of the corporation or the Ontario corporation number, or the exact name of the registered business.
- If you win, will you be able to collect from the person/business? 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:
See the Small Claims Court guide called After Judgment – Guide to Getting Results for more information on how to enforce a judgment.
- assets that can be sold, or
- a debt (e.g. bank account, employment income) that can be garnished.
- Does the person/business owe others money? You may be able to find out by contacting your local credit bureau, enforcement office, land registry office, and/or Small Claims Court. (Please note that a fee may be payable.) You may find that there are other creditors who are already waiting in line to collect their judgments.
- Even if the person/business does not have money now, you may be able to collect your judgment in the future.
WHERE should you sue?
- Is the Small Claims Court the right place for you to bring your 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.
- In addition, you cannot divide the amount of money you are claiming to try to recover it in separate cases. You cannot, for example, divide a $30,000 claim into a $25,000 claim and a $5,000 claim to be dealt with in a second case. If you believe you are owed an amount higher than the Small Claims Court limit and you want to try to recover all of it, you will have to take your case to a higher level in the Superior Court of Justice.
- Which Small Claims Court office should you file your claim in? You must file your claim in the office in the area where one of these conditions applies:
- where the problem occurred (the location of the cause of action);
- where the party against whom the claim is filed (the defendant) lives or carries on business; or
- the court's place of sitting (courtroom) nearest to where the defendant lives or carries on business.
WHAT information do you have to support your claim?
- Do you have enough evidence to support your claim? You will have to prove your case. Consider what witnesses and/or documents you have to support you. If you do not have supporting documents (e.g. you entered into a verbal agreement) or witnesses, your claim may still be successful. However, if it is just your word against the other person's, it may be more difficult to prove your case.
- Do you have any written evidence or documentation such as a contract? Copies of documents that you intend to use to support your claim must be attached to the claim form if you decide to go ahead.
- Do you have a record of any payments, returned cheques, etc. and/or a clear recollection of what happened and when? You will be required to write in the plaintiff's claim form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
- 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.
WHEN should you sue?
- How long ago did the dispute take place? There may be a time limit on how long you can wait before making a claim, which is set out in the Limitations Act. If you are uncertain about what limitation period applies to your case, you should consult a lawyer. See Lawyer Referral Service and How To View Legislation On-line below.
- Can you take time off work or school, etc. to attend at the court office to file documents and/or attend in court for a trial? You can ask at the court office where you intend to file your claim when it is likely that the case would go to trial.
- Is it possible for you to resolve the issue in another fashion? You may want to consider mediation, which is a less formal method of resolving a dispute through a neutral third party. Mediation can be less time-consuming, more flexible, and less expensive than proceeding in court. It can also help you find your own solution to the dispute and preserve your relationship with the person/business. Mediation services are listed in the Yellow Pages.
HOW much will it cost you to make a claim?
- Fees are payable upon filing a claim in Small Claims Court and for most steps in a proceeding such as filing a motion and requesting a trial date. The number of steps in a proceeding varies from case to case. Some examples of fees that may apply are as follows:
|Filing of a claim by an infrequent claimant
|Filing a notice of motion served on another party, a notice of motion without notice or a notice of motion for a consent order (except a notice of motion under the Wages Act)
|Issuing a summons to a witness
|Fixing of a date for trial by an infrequent claimant
- There are also fees and allowances that you must pay to witnesses that you have summoned for their attendance and travel to court. In addition, you will have to pay for any interpreters you or your witnesses require, other than bilingual (English or French) interpretation and visual language interpretation, unless your fees are waived (see below). For more information about fees, see the Small Claims Court guide called Guide to Fee Schedules.
- If you are successful and are granted a judgment, the judgment may include the fees you have paid.
- If the debtor refuses to pay even after you have a judgment, additional fees must also be paid to enforce (attempt to collect) the judgment, e.g. if you ask the Enforcement Office to seize and sell the debtor's assets so that you can be paid what you are owed. A list of Small Claims Court fees is available on-line. You may also get a list of fees from any court office.
- If you are not able to afford the court fees, you may be eligible to have fees waived. Information on fee waiver is available on-line and at any court office.
- You may also wish to consult the Rules of the Small Claims Court.
HOW can you access legal resources to assist you with your Small Claims Court claim?
- Court staff cannot provide you with legal advice or help you complete your forms. If you require assistance, you should consider contacting a lawye or paralegal.
- Law Society Referral Service - If you wish to retain an Ontario lawyer or paralegal, you may contact the Law Society Referral Service operated by the Law Society of Upper Canada. The Law Society Referral Service will provide a name of a lawyer or paralegal in your area, who provides a free consultation of up to 30 minutes. The Law Society Referral Service is available by telephone only at 1-800-268-8326 or in the Greater Toronto Area at 416-947-3330. If you are calling from outside the province, you may reach the Law Society Referral Service by dialing 416-947-3330. Advise the operator that you are calling from outside the province. The Law Society of Upper Canada also maintains a list of lawyers and paralegals in Ontario and their contact information, which may be accessed through the Law Society of Upper Canada website at: http://lrs.lsuc.on.ca/lsrs/.
- Law Help Ontario at Small Claims Court - Pro Bono Law Ontario Duty Counsel are free lawyers that offer limited services to the public at the Toronto Small Claims Court. To learn more about this service or to see if you meet their financial cut-off, please visit their website at: Law Help Ontario at Small Claims Court.
- How to View Legislation On-line - To view a statute on the government website, for example the Limitations Act, from the Ministry's homepage follow these steps:
- Click on E-Laws, Ontario Legislature,
- select "Search or Browse Current Consolidated Law",
- choose "L",
- select "Limitations Act".