Barrister and Solicitor
Legal Writing and Research
Small Claims Court (Ontario) Law
(01 July 2018)
Chapter 1 - Overview
- Range of the Guide
- Jurisdiction of the Court
- Procedures Relaxed
- Local Court Practice Variations
1. Range of the Guide
This Legal Guide attempts to set forth the procedures of the Ontario Small Claims Court at the date of writing. It does not address the "substantive" law of the various causes of action that might be advanced in the court, such as contracts, tort law and restitution. If and when those topics are covered it will be in separate programs.
2. Jurisdiction of the Court
The Small Claims Court has jurisdiction over monetary claims to $25,000 and over the recovery of possession of personal property to a value of $25,000.
There are as well other jurisdictional concerns that must be addressed - particularly venue - before a case is properly located in any particular local Small Claims Court (see Ch.3 "Jurisdiction").
3. Procedures Relaxed
The procedures of the Small Claims court are intentionally designed to be less complex than those in the higher courts, but presenting your best case still merits serious attention to detail.
As is stated in the Rules of the Small Claims Court:
R1.03(1)Whenever the Rules do not cover a given situation, the Small Claims Court may have regard parent legislation governing the matter, and in particular to the "Rules of Civil Procedure", a much more extensive set of rules which govern the court procedures in the higher court, the Ontario Superior Court:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act.
R1.03(2)Rules of Civil Procedure
If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
Most "judges" in the Small Claims Court are in fact deputy-judges, usually lawyers who also have active part-time law practices.
Judges have broad discretion in their decision-making, having authority to "impose such terms and give such directions as are just" [R1.04].
The court can also excuse a party from strict compliance with the Rules, meaning that errors in procedure are not necessarily fatal to the party's efforts [R2.01]. The court may, if necessary in the interests of justice, dispense with compliance with any Rule of the court at any time [R2.02].
5. Local Court Practice Variations
In this program I have attempted to set out the procedures and practice of the Small Claims Court by drawing upon the governing statutes and regulations, government publications, commercially-available texts - and from my own practice experience.
That said, it is a source of never-ending frustration to process servers, lawyers (including the author) and lay litigants everywhere that different local courts and clerks use and interpret procedures differently - sometimes it would seem with little authoritative justification. This frustration can be compounded when the clerk seems blissfully to assume that their way is the only right way that has ever and will ever exist - and looks at you like 'only an idiot would think there was any other way to do it'. If you experience this, know that you are not alone.
The solution is: communication.
Whenever you are in doubt - ask. It is a good habit whenever you take a step in a proceeding to call the court - or speak to a clerk at the counter, explain briefly what step you have done or wish to do, and to inquire as to the next procedural consequences that will flow from that, including any duties you, the other side or the court may have.
Such questions should include:
- how long do I have to do this?
- who prepares the document? - you? the clerk? (see "Forms", below)
- who serves the document?
- is an affidavit of service required for filing
- is there a fee? how much? who do I make the cheque out
- what happens next after I do this?
The forms prescribed by the court rules [R1.06(1)] are linked within this website where topically appropriate, and are all posted in a government website, linked here [R1.06(2)]:
Small Claims Court Forms
The forms at these links may be printed out and are accepted by the court in that form, assuming legibility [R1.05]. The forms may be varied as circumstances require [R1.06(1)]. Unless another form is specifically prescribed for use as an affidavit, you may use Form 15B [R1.06(5)].
Printing or typographical errors in filling out forms may usually be corrected by deletion, addition and initialling by the party submitting the form, although it is preferrable to re-draft a fresh correct copy.