Small Claims Court matters make up the majority of legal disputes in Ontario. Ryan McMackin has experience as a Small Claims Lawyer handling a variety of matters.
At McMackin Law we strive to provide quality results and great communication while being cost-effective.
The small claims court has the jurisdiction for claims up to $35,000.00 as of January 1, 2020. This limit does not include costs, disbursements, or interest. Additionally, the limit remains $35,000 regardless of the number of people being sued. You cannot sue Defendant A for $35,000.00, Defendant B for a separate $35,000.00 and Defendant C for a separate $35,000.00. However, you can sue multiple parties relating to the same $35,000.00.
You cannot try to get around the monetary jurisdiction of the Small Claims Court by dividing the amount of money you are claiming into separate cases.
It is not uncommon for people who have claims which are slightly higher than the Ontario small claims court limits to claim only for $35,000.00 and have the small claims court handle the matter to avoid unnecessary costs.
The small claims court process is much simpler than in the higher courts. However, it is still incredibly complex and difficult for self-represented litigants to navigate. Hiring a small claims court lawyer can save you a lot of time and money.
Example: Paul owns a Landscaping business. Paul has a contract worth $40,000.00 with David and Lisa for landscaping services relating to David and Lisa’s front garden. After performing the required work and neither David nor Lisa pay Paul the $40,000.00 owed.
Paul cannot sue David and Lisa for $20,000.00 each in the same Small Claims lawsuit. He also cannot sue each David and Lisa for $20,000 each in different lawsuits brought in the Small Claims Court.
Paul has the following 2 options:
If Paul decides to bring the lawsuit in small claims court, he will only be entitled to a maximum recovery of $35,000 plus interest, costs and disbursements. There are limits on interest, costs and disbursements based on several factors including whether there is Representation.
Time: Some Small Claims Court matters from the date of commencement till trial take less than 1 year. In the ordinary courts it is not uncommon for matters to take several years to reach trial.
Cost: The small claims court is a less costly method to pursue justice. Expensive processes like Discovery which may take day(s) or even week(s) of preparation plus an equal amount of time to attend are not part of the small claims court process.
Risk: If you sue for an amount outside of the jurisdiction of the Small Claims Court and are successful but only recover an amount within the jurisdiction of Small Claims Court there may be significant costs consequences. Per Rule 57.05(1) of the Rules of Civil Procedure “If a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs.”
Small Claims Court Costs Award: Per Section 29 of the Courts of Justice Act, “An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.” This cost provision is relevant for parties with a lawyer or paralegal. There is a lot less risk in terms of costs than if you bring a proceeding in a higher court where costs awarded often reach five or six figures.
Simplicity: It is not uncommon for a small claims court case to go through 4 or less phases. (Pleadings, Settlement Conference, Trial, Collection)
Step 1: Determine whether you are going to hire a Small Claims Court Lawyer. If the Claim is large, then it will likely be in your best interests.
Step 2: Draft a Plaintiff’s Claim.
Step 3: File the Plaintiff’s Claim. This is done at the Courthouse or online.
Step 4: Serve the Plaintiff’s Claim.
Step 5: Defendant has 20 days to defend. They may defend, add additional parties or counterclaim.
Step 1: The Courts will mail you a settlement conference date shortly after the Defendant defends. If you or your Small Claims Court Lawyer do not receive a Settlement Conference date you should contact the Court.
Step 2: Serve a Proposed Witness List on all parties and a Document Book at least 14 days prior to settlement conference.
Step 3: Attend court on the date of settlement conference. Even if you have a lawyer you will need to attend settlement conferences in most cases. Exceptions may apply.
Step 4: All parties to the action will attend and be before a Deputy Judge or other qualified party. Each side is typically given a few minutes to describe the nature of their issue. The Deputy Judge will then give comments and determine if he sees any possibility of settlement. If the matter is not going to be settled the Deputy Judge may allow you to set the matter for Trial. It should be noted that the location of settlement conferences is not always a Court room. It is not uncommon to be in a board room within the courthouse.
This is where evidence will be presented before a Deputy Judge. Witnesses may be involved and experts in some circumstances. Opening Submissions will start the proceeding. The plaintiff will then present their case first. The defendant(s) will present their case subsequently. Both parties will then be entitled to make submissions. After that the Deputy Judge may render a decision the same day or reserve to make a decision on a subsequent date.
Collection: Once a Trial is completed the final step of small claims court proceedings is the collection phase. Often after judgment a form and timeline of payment will be agreed too. However, it is not uncommon for payment not to made.
Where payment is not made there are several options available including but not limited to the following:
Whether a small claims lawyer should be used for all steps of a small claims court action will often come down to the amount of money in play. If the amount being sued for is under $5,000.00 it may not be profitable to hire a small claims court lawyer to handle the matter from start to finish.
It may be worth it to hire a small claims court lawyer to perform or assist in certain stages of the action despite the claim being for a small amount. Having a small claims lawyer set up your plaintiff’s claim or defence can aid you throughout the process. A lawyer can outline the main arguments to your case. Additionally, a lawyer can assist you in producing a proper pleading. This will assist each Deputy Judge or Official who you appear before to have a clear outline of your case.
Hiring a small claims lawyer to send a demand letter may also be a good use of resources. You are going to have a higher chance of getting paid if a lawyer sends a demand letter then if you send it yourself. Having a lawyer send it will suggest to the individual that if they do not pay, they will be sued.
If you are a business even when the amount involved is not high, it may also be worth hiring a small claims court lawyer. The reason for this is you may wish to set precedent.
Self represented individuals are usually not equipped with the skill set to outline their case in a clear and concise matter. The other stage of an action where hiring a lawyer may prove necessary despite their being a small amount involved is the collection phase. It can be incredibly frustrating for a successful claimant to have gone through the entire process of a lawsuit including a trial then not be able to collect.
If you are suing for a larger amount it will almost always make sense to hire a lawyer with small claims court litigation experience. Ryan McMackin has been successful in several small claims court trials.
Many self represented individuals in small claims court actions spend enormous amounts of time trying to navigate the process. If you are successful on your claim or defence and use counsel some of the money spent may be recoverable via costs. Here are some relevant cost provisions.
In a successful claim or defence for $35,000.00 a lawyer or paralegal could argue for $5,250.00 in costs assuming they did that amount or more of work. This is not to suggest a Self Represented party has never received more than $500 all inclusive of costs, disbursements etc. However, a lawyer can typically claim for significantly more costs.
How much each matter will cost is highly variable. A simple collection matter will require significantly less work than a complex real estate claim involving several parties.
Anyone claiming to be the best small claims lawyer is simply misleading. Often lawyers will defend cases in which they know their client has some liability. The trial then becomes about trying to limit the amount of their liability. The idea being that perhaps their client is being sued for $35,000.00. However, at trial the Plaintiff is only awarded $15,000.00.
If you lose you will probably be responsible for your own legal counsel’s costs as well as some amount of costs of the successful party. This can change based on whether an offer to settle was made, conduct at court etc.
You will increase your chances of being successful by hiring a small claims lawyer.
This is a topic where there is no clear right answer. Our general recommendation is that you dress in the way you normally would dress to a formal outing. If that means you wear a polo, then wear a polo. A contractor is not expected to show up dressed like an investment banker. If you dress in a way that is uncomfortable it will likely affect your confidence.
Most Small Claims Court matters require very limited amounts of Court appearances. (Usually 0-3) As a result, we can provide service in relation to matters covering a large geographic range. In many matters our clients will only have to meet with us at our office for the initial meeting. The following are the Small Claims Court locations we can handle:
We are proud to serve clients in small claims matters in the Durham Region, Clarington, Toronto and Northumberland County including residents of Pickering, Ajax, Whitby, Oshawa, Courtice, Bowmanville, Newcastle, Port Hope, Cobourg, Brighton and surrounding areas.