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Information on this website does not constitute legal advice. Legal advice can only be provided when fully retained and when you provide full disclosure of your specific issue.
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The Trial process is started by filing a request to the Court and payment of the $290 filing fee (as of April 1, 2019). This is usually done by the Plaintiff – as the party who wants the Court to decide what is owed – and should be done only after considering the costs consequences of taking this step. There are never any guarantees that the Trial Deputy Judge will render a decision in any one party’s favour. For more information on cost considerations, click here.
The time period between the Settlement Conference and the Trial date will vary. It is dependent on how long it is before the request is submitted and how many Trials are pending for that Court location. During this time of COVID-19, Trial time is limited. It may therefore take quite some time to get to the Trial stage of a proceeding.
The parties are encouraged to continue attempts to settle the matter up until the Trial date. If settlement cannot be reached, at least 30 days prior to the Trial the parties must do final preparations. They must ensure that all documents and their List of Proposed Witnesses have been served on the other side(s) and filed electronically with the Court in accordance with the Rules of the Small Claims Court.
Witnesses may need to be summonsed to require their attendance in Court. There may be costs considerations and timing issues to ensure witnesses are available for Trial.
Offer to Settle in advance of the Trial
There are great reasons to prepare and serve an Offer to Settle the matter. The primary reason is the possible doubling of costs if you are the successful party at Trial. Miller Paralegal Services will require written instructions from you if you wish to prepare and serve an Offer to Settle. For more on costs considerations, click here.
Trial Process
In this time of COVID-19, Trials are being conducted on the Zoom platform. Please review Zoom Protocols and Etiquette in Small Claims Court prior to the date. Please discuss any concerns you have using that platform to ensure the best chances in giving your testimony during the Trial.
Trials commence at 10:00 a.m. and go until 4:30 – 5:00 pm. with approximately 4½ to 5 hours of actual trial time. There may be more than one matter on the Trial docket. Even if that is “your trial date”, you may not be heard on that date.
Once your matter is called, the Trial proceeds as follows:
- Plaintiff’s side goes first – usually with the Plaintiff testifying first and then having supporting witnesses follow. If there may be issues with later witnesses hearing what earlier witnesses have to say, there may be a “witness exclusion order”. It is an Order of the Court for witnesses to remain outside the court room until they are called to testify.
For each of the Plaintiff’s witnesses:
- the Plaintiff’s representative will ask questions (evidence-in-chief) to help the Plaintiff tell the story in a chronological easy-to-understand manner. The testimony may refer to written documents, video or photographic evidence, etc.;
- the Defendant’s representative will then ask their questions (cross-examination) to attempt to bring out aspects of the matter in a light more favourable to the Defendant(s);
- the Plaintiff’s representative will then have an opportunity to ask clarifying questions (re-examination) to try to clear up any confusion created by the Defendant’s questions. There can be no new lines of questions because the defence would not have the opportunity to cross-examine.
2. Once the Plaintiff’s witnesses are through this process, the Defendant and their witnesses will follow the same process. They will be asked questions in-chief by the Defendant’s representative, cross-examined by the Plaintiff’s representative and re-examined by the Defendant’s representative.
3. If unexpected testimony comes out in the Defendant’s case that the Plaintiff has evidence to dispute what was said, the Plaintiff will have an opportunity to use the same process in what is called reply evidence.
4. When all testimony is concluded, the representatives will then do submissions. Submissions summarize the evidence and why the Deputy Judge should rule in their favour. The process is the same: Plaintiff, Defendant, then Plaintiff reply, if needed.
In less complex cases, the Deputy Judge may render a decision immediately after the submissions. In more complex cases, the Deputy Judge may ask for written submissions following that same process and release a written decision (usually within 30-60 days after receiving the Plaintiff’s final submissions).
This evidence portion is followed by discussion on costs that should be added to any Judgment. Generally, costs are 15 percent of the amount of the Judgment plus disbursement costs, including filing fees. For more on costs considerations, click here.
There are never any guarantees that the Trial Deputy Judge will render a decision in any one party’s favour. And even if the Deputy Judge sees things your way, it may be necessary to take enforcement measures if the other party decides to simply not pay the Judgment. For more information on enforcement procedures, click here.