00050638 ® Ontario Superior Court of Justice ONTARIO MINISTRY OF THE ATTORNEY GENERAL law library KF 8769 H68 2003 c.l Revised June 2003. © Queen's Printer for Ontario, 2003 KF HOW TO MAKE SMALL 8769 CLAIMS COURT WORK FOR H68 YOU 2003 rev. c.l HOW TO MAKE SMALL 8769 CLAIMS COURT WORK FOR H68 YOU 2003 rev. 1 ONTARIO MINISTRY OF THE ATTORNEY GENERAL LAW LIBRARY 1. What is Small Claims Court for? 1 2. What kinds of claims are dealt with in Small Claims Court? 1 A claim for money owed to you.1 A claim for money losses caused by improper actions of another person (damages).1 A claim for the return of your personal property now in the possession of another person.2 A claim for property damage under the Parental Responsibility Act, 2000.2 3. What laws protect you as a consumer? 2 4. What help is available to me to sue in Small Claims Court? 2 5. How do I file a claim? 3 Where do I go?.3 How much time do I have to file a claim?.3 How do I get started?.4 fgi); <o What information do I need to file a claim?.4 o What information do I have to include about the defendant?.4 What documents do I include with my claim?.....4 Can I ask for interest on the money I am claiming?. 5 Can I make a claim if I am under 18?.5 Can I sue for more than the Small Claims Court limit?.5 Serving your Small Claims Court claim.6 How is a claim (and other documents) to be served?.6 What should ! do if the method of service I have chosen is unsuccessful?.6 How do I apply for an order for substituted service?.6 What if I cannot obtain an order for substituted service and I am still unable to serve the claim?.6 When can I serve the claim?.6 How long do I have to serve a claim?.7 How do I have a claim renewed?.7 How do I prove that the claim was served?.7 Who can swear my affidavit of service?.7 An affidavit establishing proper forum.8 Can I recover the cost of service?.8 Frequent and infrequent users.8 How is a frequent claimant identified? 8 6. What should I do if a claim is made against me? 9 “I don’t agree with the amount or the facts of the claim.”.9 “I guess I do owe that money.”.9 “I only owe part of what they say I do.”.10 “I do owe them money, but I just can’t pay it now.”.10 “I don’t owe them . . . they owe me!”.10 “If I am found responsible, someone else is responsible to me.”.11 “I wish to make a claim against a person other than the plaintiff, arising out of or related to the plaintiff’s claim.”.11 “I don’t think this court can hear a claim against me.”.11 7. What happens if I don’t file a defence? 11 8. What is a motion? 12 9. How do I make a motion? 12 (A +-> Cq 10. Can I settle a claim against me before the trial? 12 c o o 11. How do I get ready for my day in court? 12 Is the pre-trial conference important?.12 What if I can’t attend the pre-trial or trial?.13 What evidence do I need to support my case?.13 What proof do I need at the trial?.13 How to arrange for your witnesses to attend.14 How do I prove a claim for damages?.14 12. What happens at the trial? 14 What should I do when I arrive at the court?..14 How do I present all the facts about my case to the judge?.15 How do I give evidence?.15 What is the judgment?.15 Can I recover the fees I had to pay to go to trial?.16 Can I appeal a judgment?.16 General information about appeals.16 Steps in an appeal.16 How do I ask for a new trial? 16 13. I won...but how do I get my money? 17 The options for enforcement:.17 Notice of garnishment..17 Writ of delivery.18 Seizure of personal property.18 Writ of seizure and sale of lands.19 Examination of the debtor.19 Warrants.19 Enforcement of orders of boards, tribunals, agencies or other courts.19 14. Instalment payments 20 15. Consolidation order: protection and planned payments for the debtor 20 16. Where can I get more information? 20 T 17. Relevant Rules 21 a b l RULE 8 SERVICE - Service of particular documents 21 e o f Plaintiff’s or defendant’s claim.21 C o Time for service of claim.21 n t e n Defence.21 t s Use of e-mail.21 Notice of default judgment.21 Use of e-mail.21 Summons to witness.21 Notice of garnishment.21 Notice of judgment debtor examination.21 Notice of contempt hearing.21 Other documents.21 Use of e-mail.22 Personal service.....22 Individual.22 Municipality.22 Corporation.22 Board or commission.22 Person outside Ontario carrying on business in Ontario.22 Crown in right of Canada.22 Crown in right of Ontario.22 Absentee 22 Minor.22 Mentally incapable person.22 Partnership.23 Sole proprietorship.23 Alternatives to personal service.23 At place of residence.23 Corporation.23 When effective.23 Acceptance of service by lawyer.23 Service of claim by mail to last known address.23 Substituted service.23 Service outside Ontario. 23 Proof of service.24 Certificate of service by e-mail.24 Service by mail.24 When effective ..24 Exception.24 Service by fax.24 Service by e-mail.24 Acceptance.24 Exception.25 When effective.25 Failure to receive document.25 RULE 3 TIME 25 Computation.25 18. What terms and definitions should I know to process Small Claims Court activities? 25 How to Make Small Claims Court Work For You 1. What is Small Claims Court for? Small Claims Court is designed to give you a simple and inexpensive way to settle disputes concerning money or property. Small Claims Court has limits on the size of claim — that is, how much money you can claim in damages or compensation in this court. These monetary limits change from time to time. If you aren’t sure whether your claim is within these limits, please contact the nearest Small Claims Court office for this information. Although Small Claims Court is a branch of the Superior Court of Justice, its proceedings are much simpler, are less expensive and take less time than those in other Superior Court of Justice cases. In most cases, people can and do represent themselves before the Small Claims Court judge. If your problem is complex, though, or if you don’t feel comfortable speaking for yourself, you have every right to bring a lawyer, law student or agent to help you. This booklet is an overview of Small Claims Court. Throughout the booklet, you will see words in brackets ( ). These are terms you will hear and use as you proceed with a claim. We explain what all of these important terms mean at the back of the booklet. Understanding them will help you feel comfortable and confident as you prepare to go to court. After reading this booklet, if you still have any questions, please attend at the Small Claims Court nearest you. If you are uncertain of the court location in your area check in the Blue Pages of your phone book, in the Ontario Government section under the Ministry of the Attorney General. If court staff are unable to answer your question or if the question requires a legal opinion, they will direct you to discuss your question(s) with a solicitor or agent. Keep in mind that court staff cannot provide you with legal advice. </> <D O O 3 2. What kinds of claims are dealt with in Small Claims Court? m A claim for money owed to you In a claim of this kind, the amount of money owed to you (the plaintiff) will usually arise from a written contract or oral agreement between you and the other party. Examples of this kind of claim include: • a loan that has not been repaid; • money owed for merchandise; • money owed because of an N.S.F. cheque; • failure to pay rent; • failure to pay for work done or for the services of a contractor such as a plumber, electrician or carpenter. A claim for money losses caused by improper actions of another person (damages) The person making such a claim (the plaintiff) must prove to the judge that a loss they have suffered was caused by the actions of another person (the defendant). Examples of this kind of claim include: • property damage caused by faulty service, such as damaging goods during transportation or delivery, or clothing damaged during dry cleaning; • the delivery of goods or services that aren’t up to the standard or quality agreed on by the seller and the buyer; • failure to fulfill the terms of a written or oral contract; • damage to property caused by someone else’s fault or negligence; • damages due to personal injury. Page 1 How to Make Small Claims Court Work For You A claim for the return of your personal property now in the possession of another person The person bringing this kind of claim to court (the plaintiff) has to prove to the judge that property now in the possession of another person does rightfully belong to the plaintiff and how much it is worth. A claim for property damage under the Parental Responsibility Act, 2000 The Parental Responsibility Act, 2000 deals with claims for damages against a parent of a child (under 18 years of age) who intentionally takes, damages or destroys property. The person bringing this kind of claim to court (the plaintiff) must prove that the property damage suffered was caused by a child, that the defendant is the child’s parent and the amount of the loss suffered. The Act provides that the parent (the defendant) is liable for the damages, unless the parent can prove that the child’s activity which caused the loss was NOT intentional; OR that the parent exercised reasonable supervision over the child and made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage. Additional information regarding a claim under the Parental Responsibility Act, 2000 is set out in the following sections of this guidebook: • What help is available to me to sue in Small Claims Court? • What evidence do I need to support my case? • Where can I get more information? • What terms and definitions should I know? 3. What laws protect you as a consumer? There are a number of important pieces of legislation in Ontario that set out the rules of business conduct for buyers and sellers and give consumers the right to compensation when the rules are broken. The legislation that protects consumers includes the Sale of Goods Act, the Consumer Protection Act and the Business Practices Act. These laws also give customers the right to have their money returned if a business has not dealt with them properly or if the business has broken the law. If you want more information about the laws that protect consumers, you can contact the Ministry of Consumer and Business Services. It is listed in the Blue Pages of your telephone book under Government of Ontario. General Inquiries telephone number: (416) 326-8555 or 1(800) 268-1142. 4. What help is available to me to sue in Small Claims Court? English and French are the official languages of the courts. How does this affect me? A plaintiff or defendant who speaks French has the right to file documents in French and to present evidence and submissions to the court in French before a judge who speaks French. This right can be exercised by: • filing a claim or defence in French; • filing a written request for a French hearing in the court office before the clerk has sent out the notice of trial; • making an oral request for a French hearing at a court appearance. If you require translation of a court document into English or French, the court will provide this service. Once a clerk has sent out a notice of trial, a plaintiff or defendant wanting to file a request for a bilingual hearing must first obtain a judge’s order. Page 2 How to Make Small Claims Court Work For You In every Small Claims Court there are self-help guides to assist you in conducting your case. The guides briefly explain some of the processes you will need to know and how to fill out the following forms: PLAINTIFF’S CLAIM AFFIDAVIT OF SERVICE AFFIDAVIT ESTABLISHING PROPER FORUM NOTICE OF DEFAULT JUDGMENT DEFENCE DEFENDANT’S CLAIM NOTICE OF MOTION AFFIDAVIT (IN SUPPORT OF MOTION) CERTIFICATE OF JUDGMENT NOTICE OF EXAMINATION AFFIDAVIT FOR EXAMINATION WRIT OF SEIZURE AND SALE OF LANDS WRIT OF SEIZURE AND SALE OF PERSONAL PROPERTY NOTICE OF GARNISHMENT AFFIDAVIT FOR GARNISHMENT SUMMONS TO WITNESS Making copies of the required forms is your responsibility. Court offices will charge a fee to make copies. The staff cannot provide you with any legal advice. They also cannot fill out forms for you. The judge who sits in the Small Claims Court is responsible for hearing disputes between the parties. The judge listens to the arguments and evidence presented by both sides and then makes a decision on the claim. Judges also conduct hearings before and after the trial, known as motions, pre-trials and judgment debtor examinations. What happens at these hearings will be explained later in this booklet. Pre-trial hearings can bring both sides of a lawsuit together to assist them in trial preparation and to see if a trial can be avoided. 5. How do I file a claim? Where do I go? There are Small Claims Courts in different locations across Ontario. 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; • the court’s place of sitting (courtroom) nearest to where the defendant lives or carries on business. How much time do I have to file a claim? Specific kinds of claims have to be filed within a certain length of time after the event occurred. The period of time in which a claim must be filed is called the limitation period. The counting of time during which court action can be started usually begins on the day when the problem took place (the date of the cause of action). If you aren’t sure about the limitation period that applies to your case, you should consult a lawyer. Page 3 How to Make Small Claims Court Work For You How do I get started? Your first step is choosing the right Small Claims Court in which to file your claim. Your next step is to pick up the right form to start your court action. You can pick up this form at any Small Claims Court office. The forms are also available on the Ministry website at www.attornevqeneral.ius.qov.on.ca. Click on “How May We Help You?”, then click on “Going to Court". Once the form is completed, however, you will have to mail it or take it in person to the correct court. Note: 1. If you are mailing the claim to be issued, you must submit the claim fully completed and in duplicate. 2. The original claim will be kept by the court office. 3. To have the copy of the claim returned to you, please submit a stamped self-addressed envelope. When you file your claim, you will have to pay a court fee. This fee is for the cost of handling your claim. If you win your case, any fees you have to pay may be added to the money you are entitled to collect. What information do I need to file a claim? On a claim form, you must write clearly and accurately: • your full name, address, postal code and telephone number; • the full name and address of every person you are suing; io • if the address is a rural route, you should supply the lot and concession number; c o • the amount of money you are claiming; and o 0 • a short, clear summary of the events that took place and the reasons you think you are entitled to your w claim. What information do I have to include about the defendant? • If the claim is against an individual, include the defendant’s full given name and address, apartment or unit number and postal code. • If more than one party is named in your claim, you will also have to include each person’s full name and address. • If you are suing an incorporated company (it usually has Limited, Ltd., Corporation, Corp., Incorporated or Inc. after its name), make sure you have the correct corporate name, address and postal code. If you want a specific corporate officer to be served, include his or her name and position in the corporation. • If the business you are suing is not incorporated (a sole proprietorship or partnership), you will need the correct name of the business and the address for service. Alternatively, you may wish to serve notice on the proprietor or partners, or name them as parties. For information on how to search a corporation or registered business name, you may contact the Companies Helpline, Ministry of Consumer and Business 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. What documents do I include with my claim? If your claim is based on a document such as a bad cheque, a promissory note, a contract or a receipt, you must file copies of the documents with your claim. Make sure you bring the originals to the trial. If any documents are lost or not available, you must say so in your claim and explain why they aren’t attached. Page 4