Thank you for asking an excellent general question which allows me to share some great tips for our “Small Talk” readers.
Consult with a Licensed Legal Professional!
I have said this before and will say it at any opportunity I can until the message gets across: The first thing you should do when encountering a legal dispute is to contact a licensed legal professional. This is a hard and fast rule without any exceptions whatsoever. Although many people think that their cases are “slam dunks”, the reality is that there could be any number of contingencies which have not been considered. For instance, have you thought about the proper legal name? What about the limitation period to sue? Do I have enough evidence to prove my claim? These are just some questions a qualified lawyer or paralegal can help you consider.
As you have chosen to write to us, you are clearly ahead of the game on this one!
Prepare your form 7A Plaintiff’s Claim
In the event you choose to proceed self-represented (this should be for exceptional cases only), you start your lawsuit by filling in the form 7A Plaintiff’s Claim. You can pick up the form from any Small Claims Court office or download it from the Small Claims Court section of the Ministry of Attorney General website.
The Plaintiff’s Claim sets out your story including your full name and contact information as well as the Defendant’s plus a description of how much money is owing and the circumstances surrounding the dispute. You should put a lot of thought into this document because generally it is the first piece of information that comes to the judge’s attention and therefore forms his/her first impression of your case.
Take the Plaintiff’s Claim to the Small Claims Court for Issuing.
To actually commence your lawsuit, your Plaintiff’s Claim has to be issued (commonly referred to as “filed”) with the Small Claims Court in the jurisdiction where you are suing the Defendant. (A discussion of jurisdiction is beyond the scope of this article, but generally a Defendant can be sued where he resides or carries on business or where the cause of action arose).
Bring a few copies of the Plaintiff’s Claim to save on copying costs (typically one copy per party and one for the court). Be prepared to wait in line, as the backlog is heavy due to the recent increased jurisdiction of court awards from $10,000 to $25,000. The postal strike is not helping matters either.
Once you (finally!) get to the court counter and pay your $75 filing fee, the Small Claims Court clerk will issue your claim by stamping it and returning a copy to you.
Serve the Claim on the Defendant.
The next step after receiving the issued claim from the clerk is to provide to the Defendant (referred to as “serving” the Defendant) a copy of the issued Plaintiff’s Claim. There are Rules of the Small Claims Court which govern Small Claims Court proceedings including how to properly serve the Defendant. A full discussion is beyond the scope of this article. Once you serve the Defendant you should wait to receive a copy of the Defence. The Defence is mailed to you by the Small Claims Court and not served upon you by the Defendant as many mistakenly believe. Even when there is no postal strike I recommend checking in with the court regularly to see if a Defence was filed, and this particularly applies at the time of writing this article due to the strike.
There are many crucial rules and procedural requirements that cannot possibly be covered in one response. That is also why it is so important to have a licensed professional advising you. But if you are proceeding on your own, the most important thing is to stay on top of your case and always be in contact with the Small Claims Court to ensure you are not missing something. Though the court cannot give legal advice, they can give you an update on the status of your case. Just ask nicely!
The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal advisor.