Commencing a lawsuit

If you want to sue someone else, you are “the Plaintiff” in the court documents and proceedings.  If you are the one being sued, you are “the Defendant” in the court documents and proceedings.  It is possible to be both the Plaintiff and the Defendant in the same lawsuit if the Defendant countersues you.  Those are cases where the Defendant, after receiving the claim, says “not only do I not owe you $X, you owe me $Y for (reason)”.  Other parties not named by the Plaintiff in the original proceeding could also be added in a Defendant’s Claim.

In Ontario, the Small Claims Court is a branch of the Superior Court of Justice dealing with disputes of a monetary value of up to $35,000 (Canadian) excluding interest and costs (which may include court fees, experts, legal fees, etc.).  This is the the “monetary limit” of the Small Claims Court.

For claims in excess of the monetary limit, you may choose to either:

  • continue in the Small Claims Court and reduce your claim to the monetary limit; or
  • contact a lawyer to have the matter brought to the Superior Court of Justice in order to proceed for the full amount you wish to claim.

You cannot split your higher claim into smaller separate cases in order to still have the Small Claims Court make a determination for an amount greater than the monetary limit.

The Small Claims Court cannot make Orders to force someone to do specific performance or not do something by way of injunction.  Common types of claims before the Small Claims Court are:

  • unpaid invoices (goods or services),
  • unpaid loans/promissory notes, unpaid rent,
  • bounced cheques,
  • breach of contract,
  • issues with workmanship or quality of goods delivered,
  • property damage.

To sue or not to sue… you must consider the following – who, what, when, where, why:

  • Who – before you begin the lawsuit it is imperative that you identify the correct ID of the person(s) or corporations(s) you want to sue.  Are they under disability?  Do they have capacity to pay a Judgment?  There are costs of commencing a lawsuit in the Small Claims Court (see Costs webpage).  Even if at the end of it all a Judgment is made in your favour, there is no guarantee that you will be paid the amount so ordered.  You may have to take enforcement proceedings (see Enforcement webpage).  It may be difficult or even impossible to enforce payment, especially in cases where someone is:
    • bankrupt,
    • on disability,
    • unemployed and without assets that can be sold.
  • What – is your claim the type of claim over which the Small Claims Court would have jurisdiction?
  • When – are you within the applicable limitation period to be able to start the lawsuit? There may be a time limit to how long you can wait before making a claim. If you are uncertain about what period of time applies in your case, consult with a lawyer or paralegal.
  • Where – Under the Rules of the Small Claims Court, a claim is to be brought where (or closest to) the Defendant resides or carries on business (or if multiple Defendants where at least one of them does so) OR where the cause of action (the reason for the claim) took place.
  • Why – is your claim one over which the Small Claims Court would have jurisdiction and do you have a valid right / reason to sue the party(ies) you believe have caused you damages?

You may also need to consider costs implications such as time away from work, legal fees, witness fees, translation fees, as may be applicable to your situation, click here.

TO REQUEST A CONSULTATION ON YOUR MATTER, contact Nancy via phone or email.

So you have decided that yes you want to start a lawsuit. 

The next thing to consider is what do you need to do to prove your case.  What documents or witnesses will you need to support your claim?  Of course that will be determined by what is the basis of your claim.  Documents for your case might include:

  • quotes/estimates, contracts, invoices,
  • photographs,
  • banking records,
  • emails, letter correspondence, text messages,
  • reports from expert witnesses.

When you retain Miller Paralegal Services, you need to provide all of this information and documentation at the beginning of the process.  This is important to allow time to properly research your case and prepare documentation to be filed and served with the Plaintiff’s Claim as is required by the Rules of the Small Claims Court.  Additional documents can be received and served throughout the process should something arise during the course of the proceeding.  An example would be something you didn’t think was relevant to the case at first but becomes relevant to dispute a defence argument.

Miller Paralegal Services will draft the Plaintiff’s Claim and email it to you for review to ensure it is complete and accurately sets out what happened.  Once the Plaintiff’s Claim is finalized, we will file it with the appropriate location of the Small Claims Court and start the steps of serving the documents on the Defendant(s).  You will be billed for this part of the proceeding as an interim billing.

The next step in the proceeding will depend on whether or not a Defence is filed.

If a Defence is not filed within the 20 days after service of the Plaintiff’s Claim, the Defendant(s) could be noted in default.  Depending on the reason for the claim, we can ask for a clerk-issued Default Judgment (for loans, invoices, etc.) or we can set a date for an Assessment Hearing before a Deputy Judge (for cases involving damages to person or property).  For the next steps in an undefended proceeding, see Default Judgement or Assessment Hearings depending on your case type.

If a Defence is filed, the next step is Settlement Conference.  For the next steps in a defended proceeding, see Phase 2 – Settlement Conference

TO REQUEST A CONSULTATION ON YOUR MATTER, contact Nancy via phone or email.