Small Claims Court

SHOULD YOU SUE?

If you owe or are owed money, you may eventually have to go to court. Most people never have to sue or be sued for large amounts of money, and that's why there's such a thing as small claims court. It's designed to hear claims of ,000 or less, and the procedure is simple enough to allow most people to represent themselves.

If you are going to successfully sue someone, you will need evidence that they actually owe you what you say they do. The best evidence is one or more clear documents, such as contracts, letters, cheques or receipts. However, the oral testimony of witnesses is also good, especially the more witnesses there are who say the same thing, and the more distant your relationship is with them. Your own oral testimony is also evidence, and can be good enough provided that it is not contradicted or, if it is contradicted, that the judge believes you. You can't count on that happening however, so if you don't have independent evidence, there is often no use involving the small claims court at all, regardless of how strongly you feel about the case. Chances are that you will only end up wasting time, and quite possibly more money, as well.

If you do have solid evidence of your claim, the next hurdle you must overcome is being able to find the person who owes you. Again, if you do not know where the defendant can be served with legal documents, the court will be unable to help you and you might as well not proceed. Depending on the nature of your claim, you may have up to six years in which to bring a lawsuit, which may give you extra time to find the defendant. However, once that time is up you effectively have no claim, and the limitation period on some claims is much shorter than six years. If for whatever reason you cannot bring your action immediately, you should consult a lawyer about the limitation period that applies to it.

Another reason not to bother suing, even if you can find the defendant, is if you believe he or she has little or no assets or income from which to pay you. Again, even if you win in court, the court offers only limited assistance in collecting the judgment, and if the defendant or defendants can't pay you, no one else does, either.

COMMENCING A SMALL CLAIMS COURT ACTION

To commence a small claims court action, you must obtain a claim form from any small claims court and fill it out. If you do this, you are known as the plaintiff, and the person you are suing is, of course, the defendant. However, you must take the claim form back to the court in the particular area in which the defendant lives or carries on business. There are only limited circumstances in which you may bring the action somewhere else, for instance if you live somewhere else and the contract was signed and carried out there. If you intend to bring the action somewhere other than where the defendant lives or carries on business, you must as the court for a form called affidavit establishing proper jurisdiction, and fill it out.

To file your claim will cost approximately , which is added to what the defendant owes you. You must then serve the claim, which requires that you mail or deliver it to the defendant, or have someone else deliver it to the defendant for a price, which again is added to the amount you are claiming. You or the other person must then obtain an affidavit of service form from the court, fill that out and file it. The defendant will then have 20 days in which to file a defence.

If the defendant does not file a defence, you will win by default, and obtain what is called default judgment. If the defendant does file a defence, the court will schedule what is called a pre-trial, and send both parties notice of it. A pre-trial is an informal meeting before a judge who will give his opinion as to what the outcome of the case should be, in order to encourage both parties to settle. This judge's opinion is not binding, and is not even recorded in the court's file, so as not to influence the judge who hears an eventual trial. Many cases are settled at the pre-trial stage, but no one can force a party to settle.

If a case is not settled at pre-trial, nothing further will happen unless either party pays a further fee of 0 and asks the court to schedule a trial. If this does not occur, the court will schedule a trial and again notify both parties, and a judge will decide the matter on the date set.

Although small claims court is designed to allow people to represent themselves, if you have to attend court, you should at least speak to a lawyer beforehand.

COLLECTING A JUDGMENT

If you obtain judgment against someone you have sued in small claims court, the best thing to do next may be to send the person a clear, polite letter reminding them of the amount they owe (which may now include interest and costs), and asking them to contact you to make arrangements to pay. Depending on the amount owed, it is usually reasonable to accept at least two or three payments over time, rather than demanding the entire amount at once. However, very often the person who owes you money will not even respond to your letter, so if you don't receive a response for a couple of weeks, be prepared to take further action.

If you know where the person works or what bank they use, you may be able to garnishee some or all of the money you are owed. Begin by taking this information to the small claims court office. You will be given a form on which to record whatever you know, and the court will mail the form to the employer or the bank, and notify you of the result.

If you don't know where the person works or banks, or whether they are employed at all, the court office has another form you should fill out to require the person to attend court to be examined. You also attend the examination, and you get to ask the person these questions with a judge present. You may obtain information that will allow you to garnishee, or the judge may make an order requiring the person to make specific payments over time.

If you could not locate the person who owes you money, or if you knew the person had no assets or income, it was not likely worthwhile suing in the first place. This is because even if you obtain judgment, the court cannot force someone to pay money they don't have, and no one else is responsible to pay you. If you obtain judgment and can't enforce it, your only option may be to wait and see if the person turns up or gets a job, and to try to enforce your judgment at that time, in one of the ways described above. In that case, you will have to attend the court office at least once every six years, to renew your judgment.

To speak to the lawyer students must make an appointment, come to the RSU's main office in the Student Centre - SCC311, third floor or call 416.979.5255 ext. 2325 

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