The exchange of Pleadings – Plaintiff’s Claim and Defence
If you are the one suing for money, you are the Plaintiff. Your case begins by preparing and issuing (filing) a Form 7A Plaintiff’s Claim with the Small Claims Court. The court charges a filing fee of $75. There are of course many decisions that can go into preparing a Plaintiff’s Claim such as who to name as Defendant, where to file, etc. This can be discussed with your small claims representative. If you are the one who has been sued, then you are the Defendant and have 20 days from the date of service of the claim to serve and file your Defence. . The filing fee for Defences is $40.
Sometimes, although you are named as a Defendant, you may have a counter-claim against the Plaintiff, or you may want to name a third party to the lawsuit because you feel he/she is fully or partially responsible for the mess you find yourself in. In such case, you would issue and serve a Form 10A Defendant’s Claim.
How Mr. Small Claims Court referred professionals help –
Our professionals will review, analyze and discuss your documents with you. They will discuss the necessary strategy for pursuing your claim including naming the defendant, where to file, how to draft the wording, etc. They will proceed to implement the strategy by drafting a strong and convincing claim or defence (and Defendant’s Claim if necessary). Once the draft claim or defence is filed, they will discuss any outstanding items such as documentary evidence to attach to your claim or evidence, and once instructed will proceed to arrange filing of your claim or defence. Once they obtain the claim back from the court, they arrange service of the claim. (Note, for Defences, as of July 1, 2014, you have to first serve it and then file it.)
2. The Settlement Conference
After the pleadings are exchanged (See above), the court will schedule a Settlement Conference. A Settlement Conference is an off the record, or without prejudice, meeting of the parties with their representatives in court to see if the matter can be settled or the issues narrowed. It is facilitated by a deputy judge of the Small Claims Court who will not be the trial judge. Again, many rules and procedure which you can discuss with your representative. The judge does not provide legal advice.
How Mr. Small Claims Court referred professionals help –
Referred professionals will review the documents again to refresh themselves. They will then discuss any matters that may have arisen between the filing of the pleadings and the scheduled Settlement Conference. They will attend court with you to advocate on your behalf in front of the judge. Prior to attending they will prepare the List of Proposed Witnesses with your input on necessary witnesses. Once you approve the said list, they will serve same on the other party and arrange filing with the court. Prior to the Settlement Conference we will brief you on what to expect and discuss your settlement instructions. On the day of the Settlement Conference they will meet with you at the court house to discuss the case – usually about a half hour prior to the Settlement Conference. In the Settlement Conference itself, they will negotiate a settlement on your behalf with your input. They will alternatively try and narrow the issues and speak to various issues with the judge. They will seek any and all necessary orders and will record all orders made by the judge so you can understand them in plain English. After the conference they will debrief with you to ensure everything is understood.
* Note, sometimes the Defendant fails to file a Defence. In such case, they will assist you with either obtaining judgment over the counter by default, if possible, or by way of motion in writing or assessment hearing (trial without a Defendant) before the judge. They will, of course, prepare the necessary documentation with your input.
3. The Trial
While many cases settle at or after the Settlement Conference, when they do not, then the parties present their cases and evidence before a deputy judge who renders a final decision, or judgment. For the party scheduling the trial (almost always the plaintiff) there is a court filing fee of $100.
How Mr. Small Claims Court professionals help –
If you are Plaintiff, they will arrange to schedule the trial with the Small Claims Court. They will again review your documents to refresh themselves and see if any issues have arisen between the Settlement Conference and scheduled trial date. They will begin preparing in advance of the trial by discussing strategy and objectives for success at trial. They will review the evidence with you and discuss who will be testifying on your behalf as a witness. They will discuss the Rule 14 Offer to Settle Rule and make an offer to settle pursuant to the Rules of the Small Claims Court. If there is a subsequent negotiation prior to the trial, they will undertake that on your behalf. If the matter settles, they will arrange the settlement documentation including reviewing the Terms of Settlement or Release, if applicable and ensuring the smooth completion of the settlement to the extent possible. If the matter does not settle, they will prepare for trial by preparing questions to ask you and your witnesses under oath as well as cross examination questions of the adverse party and his/her witnesses. They will, of course, attend with you on the date of trial and advocate on your behalf. When a decision is rendered in your favour, they will ask the judge to make an order reimbursing you for legal fees, and it will be within the discretion of the trial judge what to award. Sometimes the court’s decision is not rendered until a later date. They will follow up with the court and you to obtain a copy of the decision.
Small Claims court is dynamic and can be unpredictable. For example, sometimes a party wants to make a request of the judge that is required before trial. This is called a “motion”. Often such requests can be made at the Settlement Conference but not always. Further, when obtaining judgment, defendants do not always pay. In such case, “enforcement” through means such as garnishing wages or bank accounts, judgment debtor examinations or writs of seizure and sale (commonly but mistakenly called “liens”) are necessary. These must be discussed with us on a case by case basis.
We have taken the time to list some of the more popular forms which you can read about on our forms page. (Note, the forms are often being updated so you can also check www.ontariocourtforms.on.ca). These forms can be obtained in any court, whether you are in the small claim courts of Toronto, Brampton, or elsewhere. Of course, it is not easy deciding which forms you need for your court filing or figuring out how to fill out your forms. For instance, when is it appropriate to file a Plaintiff’s Claim? What about an Additional Parties Form 1A or Defence? When is it appropriate to fill out the Affidavit of Service? What is the Request to Clerk form for? We often tell clients that the initial form you file is the most important document because it it is judge’s first impression of your case. Which is where we come in to the picture.