This article outlines the rules, small claims court limit, forms, filing fees and then goes through a sample case all the way from the beginning of a small claims court proceeding to the completion of trial.

The first step in any matter is determining if you have a valid case. You can save a significant amount of time and money at this stage by meeting with a small claims lawyer in order to obtain legal advice. Frequently self represented individuals bring lawsuits which have no practical chance of success due to legislation, limitation periods, case law etc. If these individuals had spent some money at the outset, they would have saved year(s) of their time, court costs, disbursements and fees owed to the defendant.

The Ontario small claims court limit is $35,000 or less. Many websites remain out of date and reference the historic Ontario small claims court limit of $25,000. The new small claims court limit came into effect on January 1, 2020.

All Small Claims Court Ontario Forms can be obtained online at the Ontario Court Forms website. Throughout this guide I will be referring to these forms.

Please note: There are separate, higher fees if you are a frequent claimant. A frequent claimant is a party who files 10 or more claims in a calendar year.

If you require a comprehensive list of all Ontario Small Claims Court Filing Fees, you can obtain them from the Attorney General website.

The Small Claims Court Rules are provided in O. Reg 258/98. The regulation is 56 pages long and beyond the scope of what can be covered in this article.

The remainder of this article will walk you through a sample case all the way from the beginning to the end of the small claims court process. Throughout the sample case many of the primary rules will be referenced in passing.

For the rest of this guide we will use a fictitious example to assist in providing you commentary and knowledge about common small claims court issues.

John Smith and Jane Smith own a house on 555 Sunny Drive in Oshawa Ontario. After lengthy discussions between the husband and wife they decided to hire ZYX Kitchens Inc. to perform a kitchen renovation. A simple contract was signed for the sum of $35,000.00 between ZYX Kitchens Inc and John and Jane on April 8^th, 2020. The contract outlined the work to be done, the date of completion as April 30^th, 2020, the interest rate (12%) and the payment terms of 50% upfront and 50% upon completion. John and Jane wrote a cheque through their joint account to ZYX Kitchens Inc. the same day for $17,500.00.

Things after that took a turn for the worst. ZYX Kitchens Inc. finished the project on July 30^th, 2020 and much to the dissatisfaction of John and Jane the workmanship was not up to the expected standard and some of the materials used were not those that were agreed to.

John and Jane refused to pay the remaining $17,500.00 to ZYX Kitchens Inc. On August 30^th, 2020 Tom, the sole Director of ZYX Kitchens Inc. decided to pursue the outstanding funds by way of Small Claims Court Action.

After you have determined that you have a claim, you will need to complete, file and then serve a Form 7A Plaintiff’s Claim. This form is available at the Ontario Court Forms website.

The first space to fill in is titled “Small Claims Court.” Here you will need to put the Small Claims Court location which applies to your case. You will need to decide on a location that is acceptable per the Rules of Civil Procedure. This will require that you file the claim in the region or territory where the cause of action (event) occurred or where any one of the defendants live or carry on business.

You will then need to look up the applicable courthouse. Please click here to see court addresses. 

In our fact scenario the defendants both live in Oshawa. The proper location to file a claim in this scenario was at the Oshawa Small Claims Court.

Once you have done that you will need to fill in the remainder of the first page of Form 7A. The courthouse will provide you a Claim Number when you file the claim. Ignore that section for now. It is essential that all parties to the action are named correctly. Filling in the rest of the first page of Form 7A is a rudimentary exercise after that point. Some sections like Fax Number may not be applicable. Do not fill them in if not applicable. Name and Address should always be filled in.

If there are additional plaintiffs or additional defendants you will need to go back to the Ontario Court Forms website and download Form 1A. Fill in that form and place it behind the first page of Form 7A. In this case there are two defendants so we will have to fill in Form 1A.

On page 2 of Form 7A is where you explain what happened. It is very common for self represented litigants to not be able to adequately explain the nature of their issue. At this point of a proceeding a lawyer with litigation experience is of great assistance.

Here is a sample of how ZYX Kitchens Inc. may explain what happened in their Plaintiff’s Claim against John and Jane Smith.

1. The plaintiff claims:

• damages for breach of the Kitchen Renovation contract, in the sum of $17,500.00
• pre-judgment service charges at the rate of 12 percent per annum from the date hereof;
• alternatively, pre-judgment interest pursuant to the Courts of Justice Act;
• post-judgment service charges at the rate of 12 percent per annum;
• alternatively, post-judgment interest pursuant to the Courts of Justice Act;
• costs on a substantial indemnity basis plus HST;
• such further and other relief as this Honourable Court deems just

2. The plaintiff, ZYX Kitchens Inc, is a company incorporated under the laws of the Province of Ontario and at all material times carried on the business of kitchen renovations. (hereinafter referred to as “ZYX”)
3. The defendants, John Smith and Jane Smith, reside in the Town of Oshawa, Province of Ontario and at all material times were the homeowners of 555 Sunny Drive. (Hereinafter referred to as “John and Jane”)
4. On or about the 5^th day of April 2020, ZYX was contacted by phone by John and Jane. Sandy the receptionist arranged for the owner Tom to meet John and Jane at their house on the 8^th day of April 2020.
5. On or about the 8^th day of April 2020, Tom met with John and Jane at 555 Sunny Drive. During the meeting both John and Jane signed a Kitchen Renovation Contract with ZYX.
6. The particulars of the contract included:

• Product Specifications: ZZZ Pink Cabinets, Marble counter tops, Black Marble Back splash;
• $17,500.00 payable upon signing the contract and $17,500.00 upon completion;
• 12% interest;
• Date of completion by April 30^th, 2020.

7. John and Jane paid $17,500.00 to ZYX Kitchens Inc. on April 8^th, 2020.
8. As of the date hereof, John and Jane are indebted to ZYX Kitchens Inc. in the sum of $17,500.00
9. The plaintiff states the defendant is in breach of the Kitchen Renovation contract and consequently, the plaintiff is entitled to recover payment or damages in the sum of $17,500.00 together with interest and / or service charges specified in the contracts relating to same.
10. On or about August 15^th, 2020 a demand for payment was served on the defendant. This demand letter has not been responded to as of the date hereof.
11. The plaintiff asks that the trial of this action take place in the City of Oshawa, Province of Ontario.

As a plaintiff’s claim is an originating process it must be personally served. There are situations where this may not be possible and a motion for substituted service can be brought. Typically, a motion for substituted for service is brought where a defendant is evading service and / or only has a postal box as an address.

Continuing our Fact Scenario…The next day (August 31^st, 2020) after drafting the claim Tom of ZYX Kitchens Inc. hired a process server who came by ZYX Kitchens Inc is place of business, collected four copies of the Plaintiff’s Claim and goes to the Oshawa Courthouse to file the Claim. After the Claim is filed the process server drives over to 555 Sunny Drive and knocks on the door. Both John and Jane were present and were each served with a copy of the claim.

Please Note: A plaintiff’s claim may be filed online however this process is more useful for frequent claimants, lawyers and paralegals as a Service Ontario account is required. You will still likely need a process server to serve your claim. The fee for filing a claim as an infrequent claimant is $102.

Upon receiving the Plaintiff’s Claim John and Jane are upset. They at this point only have 20 days to respond to the claim and they do not know where to begin. Their first step should be to contact a small claims lawyer to obtain legal advice. However, this may not always be practical if the matter involves a very small amount of money.

A lawyer helps them and advises them to fill in Form 9A (Defence). The form is very similar to Form 7A.

The first page is a rudimentary exercise in filling in the information. However, unlike when filing the Plaintiff’s Claim there will now be a Court File # which must be filled in. The Court File # should be on the first page in the top right corner of the Plaintiff’s Claim. When the Plaintiff filed the claim, the Clerk provided them the Court File #. On the second page the claim is being filed on behalf of John and Jane. After receiving legal advice, they decide to dispute the Claim made against them.

Sample Statement of Defence Ontario Small Claims Court for John and Jane Smith.

Defence

1. The Defendants deny the allegations contained in the Statement of Claim.
2. The Defendants state that they are not liable to the Plaintiff by reason that:

• The plaintiff failed to complete the project on a timely basis.
• The quality of the work was inconsistent with the terms of the contract.
• The work was defective.

Delay

3. There is a delay under the terms of the contract of 3 months and an additional delay attributable to the time necessary to correct the deficiencies resulting in substantial interference with the use and enjoyment of the Defendants Residence.

Deficiencies

4. There were substantial deficiencies in the construction of the kitchen, the particulars of which include the following:

• The cupboards were off colour. The shade of pink is lighter than what was agreed to.
• Granite counter tops were provided as opposed to the marble counter tops provided for in the contract.
• A white marble backsplash was provided as opposed to a black marble backsplash provided in the contract.
• The hinges and handles were different than agreed.

Damages

5. As a result of the breach of the Kitchen Renovation Contract the defendants sustained damages including the cost of remedying the deficiencies and loss of use and enjoyment of the kitchen which equals or exceeds the amount of the Plaintiff’s Claim.

Set Off

6. The Defendants state that they are entitled to legally and / or equitably to set off their damages against the claim asserted by the Plaintiff.

Request for Dismissal

7. The Defendants request that the action be dismissed against them with costs payable by the Plaintiff to the Defendants on a substantial indemnity basis.

After completing the remainder of Form 9A the defendant now must serve then file the claim. The defence is not an originating process. As such several service options are available including by courier and fax as per rule 8.01(14) of the Rules of Small Claims Court. 

In this case the Defendant faxes the defence to ZYX Kitchens Inc. place of business and subsequently files the defence together with an Affidavit of Service (Form 8A) at the Court House.

While filing the Defence, the defendant or their process server receives a date for settlement conference. The defendant may also or alternatively receive a notice of settlement conference in the mail within a week or two of filing their defence. Typically, the settlement conference will take place within 3 months of when the defendant files their defence.

The settlement conference is to be November 30^th, 2020. ZYX Kitchens Inc. receives the notice of settlement conference by mail from the Court several days later.

At least 14 days prior to settlement conference the parties must provide each other all documents they intend to rely on (Document Book), as well as a List of Proposed Witnesses. (Form 13A) These documents are typically served by fax or courier. For matters which only have a few documents often it will be easiest for the Plaintiff to attach all the documents to their Plaintiff’s Claim in order to avoid putting together a document book later on.

ZYX Kitchens Inc. in preparing its document book will likely want to include the contract, relevant correspondence and any pictures showing the completed work.

ZYX Kitchens Inc. in preparing its witness list will probably wish to include any people who worked on the subject kitchen as well as the Owner of ZYX Kitchens Inc.

John and Jane in preparing their document book will likely want to include the contract, relevant correspondence, pictures showing the alleged defects, quotes for repairs, signed contracts for repairs and pictures of said repairs if applicable. 

John and Jane in preparing their witness list will probably include each other as well as the contractor(s) who reviewed the work and will be remedying said defects.

Finally, on November 30^th, 2020 the day of the Settlement Conference arrives. The parties should arrive 20 minutes early so that they can find the Room or Court Room where their matter will be dealt with.

You will not likely be the only person to be heard on that day in your designated court room. Typically, there is a list which may include more than a dozen matters. Often matters where lawyers are involved are pushed towards the top of the list.

You will not know an exact or ballpark time when your matter will be held typically unless the Court you are attending has assigned times. Most courts only assign a Morning or Afternoon time. You should plan to potentially be at the courthouse for the entire day.

Typically, in Small Claims Court Settlement Conferences you will either be in a Court Room or a Board Room.  A Deputy Judge or other qualified person will be there as well as Court Staff. The plaintiff is to sit on the right and the defendant will sit on the left.

The Deputy Judge typically will request the Plaintiff to briefly describe the nature of their claim followed by the Defendant. The Deputy Judge then will often give his opinion on the matter with the goal of trying to find some sort of middle ground in order to allow the parties to settle. After the settlement conference it is not uncommon for both Plaintiff’s and Defendant’s to no longer feel their case is as strong as they originally believed. 

If the matter can be settled Terms of Settlement will be filled in. Court staff will provide you with said document. If no settlement is reached the parties may agree on a Trial date and it may be set down for trial on that day.

In the case the matter is not set down for trial the day of settlement conference one of the parties can file a Request to Clerk (Form 9B). In the form you will fill in the section entitled Schedule a Trial. There is a fee of $290.00 to fix a date of trial for an infrequent applicant.

Please note: Witnesses are not to attend settlement conference.

In the example case ZYX Kitchens Inc would outline their version of events followed by John and Jane. The Deputy Judge hearing it would quite possibly say well it seems the defendants have an argument that there are several deficiencies. This suggests to me the amount owing is probably less than $17,500.00. Is there a middle ground which you can reach?

The parties may agree to step outside the court to engage in discussion. In this case as no agreement is reached the parties enter the court again and request Trial Dates. The Deputy Judge will provide them a list of available dates for trial and the two will try to find a mutual date that works.

The Deputy Judge who presides before your settlement conference will not be the same Deputy Judge that presides the trial. In the very unusual circumstance where this occurs advise the Deputy Judge and he will assist you in finding either another Deputy Judge to hear your case that day or another court date.

In the example case after receiving several dates in February, March and April of 2021 they agree to the date of March 20^th, 2021 for a half day trial.

During the time between settlement and trial the parties can still try to reach a settlement. Offers to Settle can be made per Form 14A.

If you ever reach a point where you are uncertain how to proceed consider consulting with a lawyer or paralegal who can provide you legal advice and assist you on being on the right path.

When it comes to trials there will always be an element of uncertainty to them. All parties involved in litigation must always remember this. No matter how great they believe their case is, a 3^rd party Deputy Judge will be the one ultimately making the decision.  

At trial in our example the Plaintiff will give opening submissions first briefly outlining what they will be proving today and the expected result. The defendant will then be given the chance to provide their opening submissions.

After opening submissions, the Plaintiff will call its witnesses first. ZYX Kitchens Inc. calls its employee Bob who did the work on the project.

The party who calls the witness may only ask open ended questions. The other party may cross examine the witness asking close ended questions. An open-ended question is what time is it? A close ended question would be that it is 9:15AM correct?

The plaintiff will likely ask questions to Bob in relation to the scope of work that was done, quality of said work, dates and duration of work. The defendants will then be given the opportunity to cross examine Bob. The defence will ideally want to have Bob make admissions which support their case.

As the defence is engaging in cross examination important questions may be for example:

• You would agree that the work was not done by April 30^th, 2020.
• Please look at the Contract in Appendix _ of the Defendants Book of Documents. You would agree the terms of the contract were that the work would be done by April 30^th, 2020. Correct?

At this point Bob’s prior admission would likely leave him stuck to answer the 2^nd question affirmatively as he will probably agree that the work was not done by April 30^th, 2020.

• Please refer to Appendix _ in the Defendants Book of Documents. Please look at this picture. You would agree the Marble Back Splash is White correct? Assuming this is true Bob will probably have to answer yes.
• Please refer to Appendix _ in the Defendants Book of Documents. Please look at the contract. You would agree the Contract provided for a Black Marble Black Splash correct?

Little by little through cross examination you are improving your case. Sequencing of questions can be just as important as the questions themselves. Ideally you want to get the witness trapped in a prior answer before revealing your true intent. If in the case of an obvious answer the party lies, they will hurt or even destroy their credibility. If the Defendant’s cross examination addresses issues that were not addressed in the Plaintiff’s direct examination then the Plaintiff is entitled to re examination.

One thing frequently ignored by self represented litigants is the importance of getting admissions that the contract was signed. This is imperative in cases involving contracts.

When the Defendants have the opportunity to present their case, they will probably want to outline the events that occurred, the issues with the work, the quotes received, any work that was done to remedy the work done etc. If a person or company did the work or was contracted to do the remedial work then you may need them to testify as to the cost of said work, what it entailed, the changes made, the condition prior to them working etc.

In closing submissions ZYX Kitchens Inc. will likely argue that many of the things suggested are not remedial in nature but are improvements. They may argue they were not given the opportunity to remedy any alleged defects and / or that there were not defects.

Bob and Jane will likely argue that the work was delayed, defective, they will be out of pocket or are out of pocket $XX,000.00 due to remedying the issues and that the amount of set off is equal to or higher than the amount owing under the contract.

After the Defence has no more witnesses to call then both parties will be given the opportunity to present closing submissions. Closing submissions involve legal arguments as to what the result of the case should be and may reference documents and admissions obtained at Trial.

The Deputy Judge upon hearing all the evidence may reserve the decision and provide it to you at a later date, give you an immediate decision or go to chambers in order to review the evidence and make a decision. 

In this case upon hearing all the factors the Deputy Judge determines that there is set off as there were several defects and delay however the total value of damages flowing from this is $14,000.00.

Therefore, the Plaintiff ZYX Kitchens Inc. is entitled to the difference of $3,500.00.

Cost submissions may be given, or the Deputy Judge may determine this amount themselves. Typically, when lawyers or paralegals are involved cost submissions will be given. One of the questions that will be asked is whether there were any offers to settle. Offers to settle have a unique impact on cost consequences. For more information on Offers to settle you should contact a small claims lawyer or review section 15 of Rules of the Small Claims Court.

A represented party may request typically up to 15% of the amount awarded. In the case of a successful defence a represented party may request up to 15% of the amount claimed. This does not mean those amounts will be granted. By contrast, a self represented party will usually only receive disbursements and maybe several hundred dollars in costs.

The Deputy Judge may then ask the defendants when they will have the funds available to pay the judgment. Often the Defendants may say they do not have the funds but they can pay in installments. The Deputy Judge, Plaintiff and Defendants will then engage in a brief discussion regarding payment terms.

In the case where the Debtor does not pay the Judgment and / or breaches the payment terms you should contact a debt collection lawyer to assist you. It is important to pursue an appropriate method of recovery which will consider the amount of money in play and both the Creditor and Debtors current situation. The rules in relation to collection are very specific and must be adhered to. Probably the most frequent method of collection used to collect in Small Claims Court is by garnishment.

Throughout the entire process one of the crucial things to ensure is that the parties are correctly named. Enforcement will be incredibly difficult if you incorrectly named John Smith as John Smyth.

Generally, you have 2 years to bring a claim after you discovered the issue. There are exceptions to this rule. You should always bring a claim as soon as possible. 

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