Small claims court is a mechanism that was established by the Canadian legal system to allow citizens to start lawsuits on claims that involve small amounts of money.
What “small amounts” means depends on the province or state the stay is laid. However, a small claims court is the most agile option for demanding payment of determined, liquid, overdue and enforceable debts. See what Small Claims look like in Ontario.
How to serve small claims In Canada
Seeing as how crucial small claims are, and how powerful a weapon they can be, you must arm yourself with enough information on how the filing process goes, how to prepare your claim and how to serve your small claim documents successfully.
Types of Small Claims
In Ontario, small claims fall under the jurisdiction of the Superior High Court that deals with claims of up to CAD 35,000.
Here are just a few examples of cases that can be filed in Small Claims Court in Ontario:
Claims for money owed under an agreement:
- unpaid accounts for goods or services sold and delivered
- unpaid loans
- unpaid rent : a property owner may file a small claim against a tenant over damages to the property or late rent. A tenant may file a small claims case against property over refusal to reimburse a security deposit.
- NSF cheques, and
Claims for damages:
- property damage : when a party willfully, or through negligence causes damages to another party’s material property.
- clothes damaged by a dry cleaner
- personal injuries: when a party suffers a personal injury due to the actions of another party.
- breach of contract : when one party breaks a contract or lease that results in loss of money for another party.
Cases not acceptable in small claims court
One important fact to learn is that not all claims are acceptable in small claims court. Most small claims courts do not accept cases involving child custody, divorce, or even bankruptcy, among others. You need to first confirm from the courthouse if your case falls in the aforementioned category before you proceed to file your claim.
So how do small claims work?
1. Filing your claim
When you are the one seeking a small claims case, then you are the “plaintiff”. By Canadian law, you can handle the claim yourself; though many seek out the help of a lawyer or paralegal. No matter who handles the case, you must first fill out a Plaintiff’s Claim (Form 7A) either in person, by mail, or online (i.e. through the service Ontario website).
Plaintiff’s claim is what kicks off the case once filed. You, as the plaintiff, will need to gather all the facts relevant to the case and describe in detail the events that took place and show reasons why you think you are entitled to the money or property you want to claim .
This includes any relevant information that will help the court justify the money or property claimed.
2. Supporting documents
Before filing your claim, you ought to gather supporting evidence that would support your claim. Depending on the type of claim, these documents could take the form of contracts, lease agreements, pictures or texts, emails, receipts, or even eyewitnesses.
Much as evidence may not be necessary for your claim to succeed, it does make the process easier and faster, increasing the chances of you winning the claim. Presentation is key!
3. Service of the claim
Serving the claim could make or break your case; it is that important a part of the process. Without this step, the case cannot proceed.
Serving the claim is done by hiring a professional Process Server (highly recommended) or anyone above the age of 18 who is not involved in the case – it could be a friend or an associate; to hand-deliver (serve) the documents upon the defendant (the person you are suing). In other, for the Process Server to effect service successfully, they will need to know the name and address of the party (individual, organization, institution, etc.) you are suing.
Let’s assume you were not 100% sure of the defendant’s address while you were filing the claim; this could pose as a potential problem during service of process. However, you can order a “skip trace search“, or corporate search, in other to find the current address of the individual or company. It is important to note that;
- It doesn’t matter if the address on Plaintiff’s claim (form 7A), and the address where the service was effected corresponds. So long as it is done accordingly to the rules and procedures of serving the small claims
Another important thing to note is;
- You can file for a motion to serve the defendant(s) by email, mail or fax if the process server was not successful in serving the plaintiff’s claim upon the defendant(s). However, you must show “diligence” in other for the judge to grant your motion. For example, the process server must complete, sign, and notarize an “Affidavits of Attempted Service form” that shows at least three attempts made to serve the defendant(s).
4. Filing the Proof of service form
Once the plaintiff’s claim has been successfully served on all parties involved, the next course of action is to:
- Complete — fill an affidavit of service form i.e. Form 8A
- Sign Form 8A in front of a commissioner of taking affidavits
- Notarize/commission Form 8A
- File Form 8A
Who completes Form 8A — Affidavit of Service (AOS) form?
“An affidavit of service is a document that is notarized by a commissioner of taking affidavits to show that the defendant(s) was legally served”.
Form 8A must be completed by the “Process Server” (the person who served the plaintiff’s claim).
After the process server completes and commissions Form 8A; Either you or the Process Server can file Form 8A at the courthouse that issued the plaintiff’s claim, or online (you can file Form 8A online just the way you filed the plaintiff’s claim).
5. Wait for the Judge’s ruling
After you have filed the affidavit of service (Form 8A) . The next step is to wait for the judge’s decision regarding the matter. The defendant has twenty (20) calendar days (from when they were served) to file their defense against your claim. If the defendant(s) files a defense within the given time, then the plaintiff(s) and defendant(s) have to attend a settlement conference.
If no agreement is reached during the conference, then the case is taken to trial.
Regardless of the result of the trial, all parties have the option to appeal the court’s decision.
TIPS: How to Win Your Small Claims Case
There is no proven formula for winning a case. However, the following tips will help tip the ruling in your favor:
- Keep clean records of all the events. While it is impossible to be ready for any eventuality, keeping records makes it easy to produce evidence of an event when you need to. These include receipts, lease agreements, and so on. Physical records are hard to dispute. Documentation matters!
- Make sure your claim is realistic. You know how much you should get from a suit; it is also very clear from the beginning just how much you lost. Keep your claim realistic. This increases the chances of the court ruling in your favor as opposed to when the claim seems incredible.
- Do enough research. Before filing your claim, make sure that you are up to date on all matters about small claims. Get to know all the laws surrounding the matter and how to avoid making mistakes. There are enough resources online that can fully educate you on Canadian laws and requirements for a small claim.
- Do a proper service. Make sure the person who is serving the plaintiff’s claim knows what they are doing. If the plaintiff’s claim is not served properly, then it may result in your claim getting dismissed
I hope you find this article on how to serve small claims in Canada helpful for you. Please, let us know if you have any questions.
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