Small claims court: suing someone (original) (raw)

Overview

If you believe you are owed money for the return of personal property, you can sue that person or business in Small Claims Court for 35,000orless.Foranythingover35,000 or less. For anything over 35,000orless.Foranythingover35,000, you need to go to the Superior Court of Justice.

If what you are owed is more than 35,000,youcanstillfileinSmallClaimsCourtifyouarewillingtowaivetheamountover35,000, you can still file in Small Claims Court if you are willing to waive the amount over 35,000,youcanstillfileinSmallClaimsCourtifyouarewillingtowaivetheamountover35,000.

You don’t need to hire a lawyer or paralegal to sue someone. However, you may want to consult a lawyer or paralegal to assist you with the process.

If you are being sued in Small Claims Court, find out more about what you need to do.

What you can sue for

You can sue for claims for money owed under an agreement, such as:

You can sue for claims for damages, such as:

Steps to sue someone in Small Claims Court

The steps listed below are the five key steps when you need to sue someone in small claims court. Each step is explained in greater detail respective sections on the page.

  1. Decide if you want to sue someone. You might be able to solve the problem another way. One thing to consider before deciding to sue is whether you will be able to collect the money if you “win” but the person you sued doesn’t pay. In this case, it will be up to you to enforce the judgment to collect the money.
  2. Start a claim. This involves filling out paperwork to start the claim, sending the claim to the person or business you are suing and paying some fees. You can file a claim in-person, by mail or online (where eligible). Learn more about this step.
  3. Wait for a response. The person or business you are suing may or may not agree to pay you back. If they agree, the process may end, and you won’t have to go to court. Learn more about this step.
  4. Go to court. If the person or business you’re suing does not agree with all or some of your claim, you will both be asked to meet with a judge at a settlement conference. If you still can’t come to an agreement, the next step would be to go to trial. Learn more about this step.
  5. If you win the case, the court will ask the person or business you are suing to pay you. If that person doesn’t pay you, you can start a legal process to collect the money or property owed to you. If you lose, you might owe money to cover the costs of the case. Learn more about this step.

Cost of filing a claim

The total costs of filing a claim depends on the steps you take.

Fees also depend on how often you file a claim. Someone who files fewer than 10 claims in a calendar year at the same court location is called an infrequent claimant. Someone who files 10 or more is called a frequent claimant.

An infrequent claimant will pay:

A frequent claimant will pay:

Both infrequent and frequent claimants may have to pay other court fees besides the ones above, depending on the steps they and the other party take in their case.

Other expenses

Depending on your case, you might have to pay for other expenses like travel costs for witnesses or interpretation services.

The judge might order the person you are suing (“the defendant”) to pay some of the costs if you win the case. If you lose, you might have to pay your own costs and some of the defendant’s costs.

Even if you win, the person or business you sued may not pay you or return your goods. If this happens, you will need to enforce (attempt to collect) the judgment, which also involves fees.

If you think you can’t afford the fees

You can request a fee waiver if you can’t afford to pay the court fees. Learn more about fee waivers.

Start a claim

Before you file a claim, it’s important to know:

Steps to start a claim:

  1. Fill out a form called the Plaintiff’s Claim (Form 7A). Attach an Additional Parties (Form 1A) if there is more than one plaintiff or defendant, or the defendant is known by more than one name and there is insufficient space on the Plaintiff’s Claim form.
  2. File the Plaintiff’s Claim and any supporting documents online (if eligible), in-person or by mail. Whether you file your claim online, in-person or by mail, you need to file your claim in the proper courthouse location. Find a courthouse address.
    The courthouse where you file your claim must be either:
    • in the town or city where the event or problem that led to your claim happened (the “cause of action”)
    • in the town or city where the person or business you are suing (or one of the defendants) lives or runs their business
    • the court nearest to where the person or business you are suing (or one of the defendants) lives or runs their business
      Read the Guide to Making a Claim for information about the court office in which you should file your claim.
  3. The court will stamp and date your claim. Give the defendant(s) a copy of the stamped Plaintiff’s Claim and supporting documents within six months after the claim was issued by the court. This is called serving the defendants.
    Read the Guide to Serving Documents for specific rules about how to serve someone.
  4. Complete an Affidavit of Service (Form 8A) for each defendant to prove to the court that you served the defendant(s).
  5. File all Affidavits of Service with the court office where you filed your claim (you should do this online if you filed your claim online and no other documents have been filed directly with the court).
  6. What happens next depends on how the person you are suing replies to the claim.

After you file a claim

The person or business you are suing has 20 days after being served with your claim to respond.

The defendant may either:

If the defendant admits the claim

The defendant will give you a copy of the Defence form they filed with the court. On the form, the defendant will make a proposal for terms of payment. If you agree with the proposal, the process may end here. The defendant will need to make payments directly to you.

If the defendant admits only part of the claim and you agree with the proposal, you will need to go to a settlement conference, and possibly trial, only for the part of the claim that was not admitted.

If you don’t agree with the proposal, you can request a terms of payment hearing by filing a Request to Clerk (Form 9B) within 20 days of receiving the Defence form from the defendant.

If the defendant disputes the claim

  1. The defendant will give you a copy of the Defence form that they filed with the court. The form will state what they dispute and why.
  2. You and the defendant will be required to attend a settlement conference with a judge. You will both be notified by the court about the time, date and location.
  3. At the settlement conference, you and the defendant will share evidence and tell your side of the story. If you can agree on a solution, the case ends here. For cases under $3,500, you can ask the judge to decide the case at the settlement conference to avoid going to trial if both parties file a signed Consent (Form 13B).
  4. If you cannot agree on a solution, the next step is to go to trial.

If no Defence is filed within 20 days

If the defendant does not file a Defence within 20 days after you filed the claim, you can ask the court to have the defendant “noted in default.”

When the defendant is noted in default, the court can assume the defendant admits they owe you money. If you do not ask the court to have the defendant noted in default, the defendant could still file the claim after 20 days.

After you ask the court to have the defendant noted in default, you can ask the court to order the defendant to pay you what you are asking for. This is called a default judgment.

The next steps depend on whether or not the amount of money owed is clearly indicated in an agreement or contract (for example, if someone owes you $500 for a service, the amount owed is clear, if someone owes you for property damage, the amount owed may not be clear).

If no Defence was filed within 20 days and an agreement or contract clearly shows the amount of money you are owed:

  1. Ask the court to have the defendant “noted in default” by filing a Request to Clerk (Form 9B). You can do this online if you filed your claim online and no other documents have been filed directly with the court. Check off the box that indicates the defendant is in default for not filing a Defence in the required time period.
  2. After the Request to Clerk is granted by the court, file a Default Judgment (Form 11B) at the court office where you started your claim (you should do this online if you filed your claim online and no other documents have been filed directly with the court).
  3. You will receive a notice from the court if the default judgment was granted.

If no Defence was filed in 20 days and the amount of money owed is not clear, you can ask a judge to order judgment in one of two ways:

Get ready for a settlement conference or trial

If you file a claim and the defendant disputes your claim, you’ll be asked to attend a settlement conference.

If all parties can’t come to an agreement during the settlement conference, the next step may be to go to trial.

Read the Guide to Getting Ready for Court for more information on how to prepare for a settlement conference.

Get ready for a settlement conference

  1. Fill out a List of Proposed Witnesses (Form 13A). Witnesses are the people who would help you prove your case by telling their story to the court if you go to trial.
  2. Gather any documents you plan to use to prove your case, such as contracts, pictures or expert reports.
  3. File the List of Proposed Witnesses and any supporting documents with the court.
  4. Give the List of Proposed Witnesses and any supporting documents to the defendant(s) (this is called serving) at least 14 days before the settlement conference. Read the Guide to Serving Documents for specific rules about how to serve documents.
  5. If you filed your court documents online, you must file a paper copy of each document (the List of Proposed Witnesses and any supporting documents) with the court at least 14 days before the settlement conference. These copies are for the judge to review.
  6. Go to the settlement conference. If all parties can’t come to an agreement, the next step may be to go to trial.

Note:

Going to trial

If the plaintiff and defendant can’t come to an agreement at the settlement conference, the next step may be to go to trial. At a trial, each party tells their side of the story and the judge makes a decision. Read the Guide to Getting Ready for Court for more information on how to prepare for trial.

At a trial, you should be ready to prove:

The person you are suing will have the opportunity to explain why the loss was not their fault, or why they don’t agree with the amount of money you are asking for.

During the trial, you and the person you’re suing may:

The judge usually makes a decision in court after both parties have presented their case. Sometimes the judge decides later, and the parties are sent a copy of the written decision.

If you win the case, you may still have to take further steps to get the money or property from the defendant.

Getting paid if you win a case

Winning a case does not guarantee you (the creditor) will get paid. The person or business you sued (the debtor) may not be able to pay you or may choose not to pay you. If you don’t get paid, there are steps you can take to try to get paid. This is called enforcing the judgment. Read After Judgment – Guide to Getting Results for more information on how to enforce a judgment.

You can try to get the money:

It is up to you to determine the best way to enforce the judgment. To determine the best way to enforce a judgment, you may need information about the debtor’s financial situation.

You can find out information about the debtor’s financial situation by:

At the examination hearing, the debtor may be asked to give information about their:

After looking at this information, the judge may order the debtor to make payments on certain dates.

Read After Judgment – Guide to Getting Results for information about the enforcement process.

Change the amount of a claim

When no trial date is set, or the date is far in advance

If no trial date is scheduled, or if you can complete the below steps 30 days before the trial date, you can serve and file an amended Plaintiff’s Claims at no cost by following these steps:

  1. Writing "AMENDED" at the top of your original Plaintiff’s Claim form, crossing out the original amount and writing the new amount.
  2. Underlining all additions and identifying any other changes made.
  3. Giving the amended claim to all parties (this is called serving) and complete a new Affidavit of Service for each party served.
  4. Filing the amended claim and Affidavit(s) of Service with the same court you originally filed with.

If you filed your claim online, you can file an amended claim online if you have not yet given your claim to any of the defendants. If you have already given your claim, you can file an amended claim through the Small Claims Court Submissions Online Portal, in person or by mail.

When your trial date is less than 30 days away

If your trial date is less than 30 days away, you can change the amount of your claim at no cost by either:

To make a motion for an order:

  1. Fill out a Notice of Motion and Supporting Affidavit (Form 15A) indicating the order you want (amending a Plaintiff’s Claim). You must swear (or affirm) that the statements in your affidavit are true.
  2. At least seven days before the motion hearing date, give all parties (except any defendant who has been noted in default) a copy of the form (this is called serving). Complete an Affidavit of Service (Form 8A) for each party served.
  3. At least three days before the motion hearing date, file the Notice of Motion and Supporting Affidavit and Affidavit(s) of Service with the court, and pay a fee of $127.

To request a Clerk’s Order on Consent:

  1. Fill out the Request for Clerk’s Order on Consent (Form 11.2A) indicating the order you want (amending a Plaintiff’s Claim).
  2. Ask each party to sign the Request for Clerk’s Order on Consent form in the presence of a witness.
  3. Give each party who has signed the form a copy.
  4. File the form with the court you originally filed your claim with.

Alternatives to Small Claims Court

Starting a lawsuit in Small Claims Court takes time and costs money. You should also consider the possibility that you might lose the case and be ordered to pay costs.

Before you start a lawsuit, you may want to consider other options like negotiation, mediation or arbitration.

Negotiation

Before you decide to start a claim, you could send a letter or talk to the person who owes you money. Explain the situation and what you think they owe you.

You can communicate directly to the other person, or you could communicate through a representative (such as a lawyer or paralegal). You might be able to come to an agreement without going to court.

Mediation

A mediator is a neutral third party who can help you and another person reach an agreement. A mediator can help improve communication and encourage compromise, which could help you avoid going to court.

Mediation is voluntary. You and the other person must be willing to try and work out a solution, and you must both agree to the mediation.

The mediator does not take the place of a lawyer. Each party is encouraged to get independent legal advice before and throughout the mediation process.

Mediation services are offered by private practice mediators. The Alternative Dispute Resolution (ADR) Institute of Ontario and the Alternative Dispute Resolution (ADR) Institute of Canada are self-regulated organizations that provide standards of professional conduct as well as complaint processes.

Arbitration

An arbitrator is a neutral third party who can help you resolve a case without going to court.

Parties who arbitrate a case must agree to be bound by any decision made by the arbitrator. A decision made by an arbitrator is legally binding and enforceable against the parties. Arbitration is a less formal process than a trial and many people find it a more comfortable process than going to court.

An arbitrator considers the evidence presented to them by the parties. The arbitrator cannot exclude evidence that a court would otherwise admit. Arbitration is governed by the Arbitration Act.

An arbitration process may be more complicated and expensive than mediation, but arbitration can be faster and be less expensive than suing in court.

Arbitration services are offered by private practice arbitrators. Arbitrators may be members of the ADR Institute of Ontario or ADR Institute of Canada.

Updated: November 17, 2023

Published: July 06, 2021