The Small Claims Court is an excellent avenue to closure, finality and the timely resolution of a dispute. Pursuing a claim before the Small Claims Court requires patience, pragmatism and strategy. While the process may feel daunting, overwhelming and bewildering much of it is relatively straightforward and intuitive.
You may not require professional legal services for the entirety of your Small Claims Court matter. Retaining professional help for any combination of court appearances, assistance drafting your documents or enforcing a judgement prepares you to deliver your best performance in court. Precision Paralegal Services can help: call us and ask how we can help.
If you are considering filing a claim, here are five tips for getting started:
1) When did the dispute happen? What documents or records do you have to prove when the dispute happened?
In Ontario, you have two years to start a Small Claims Court action. If a plaintiff misses this deadline, the Court cannot hear the case. Generally speaking, the moment a dispute occurs, the countdown towards the two year deadline begins. Different factors change what date is used to start the two year countdown. Determining this date is also important because it affects the date beginning when the Plaintiff can claim pre-judgement interest.
Documents might include a copy of the contract itself, estimates, drawings and correspondence.
2) Locate the debtor
You must sue the debtor in the municipality or region where they live or work. The only other option is to sue the debtor in the municipality or region where the dispute took place.
Knowing the debtor’s address is important because you must provide a copy of the lawsuit to debtor suing at their home or work address. Serving a claim can be challenging if a debtor changes jobs or moves frequently. There are a number of useful government and private sector databases to search including:
- Land and Title Property Search
- Ontario Ministry of Transportation Search
- Pull a credit check via Equifax
- Professional Regulatory or Union Directory
- The Superintendent of Bankruptcy Website
Precision Paralegal Services retains the services of skip tracers or private investigators when a debtor is particularly difficult to locate.
Tip #3: Understand the process:
A plaintiff’s claim is received and responded to by the defendant. Sometimes motions are filed so that a judge can clarify and resolve procedural issues. Parties must attend a mandatory mediation settlement conference before a judge. These pre-trial conferences help to narrow issues, to exchange disclosure and ideally result in a settlement. If necessary, parties proceed to a trial and subsequent judgement order from a judge.
Receiving a favourable judge’s order may be satisfying and gratifying, but it does not necessarily result in the payment of damages.
Tip #4: How will you receive payment
If you are successful in court, you are responsible for retrieving payment. Some debtors willingly and begrudgingly comply with a judge’s order ready to get the process over with. Ideally, a plan for repayment can be negotiated. Other debtors avoid paying the judge’s order by ignoring judgement, or by actively hiding their assets.
Important questions include:
Can the debtor realistically pay what is being claimed? What are their sources of income?
Is the debtor employed? Does the debtor have a car or valuable personal property? Does the debtor own real estate?
Some options for securing payment of a judgement include:
- Working with a bank manager to take a portion of the debtor’s bank accounts
- Working with the debtor’s employer to take a portion of their wages
- Filing a writ against the debtor’s personal property such as confiscating and selling their car
- Filing a writ against the debtor’s house perhaps forcing the sale of their house or real estate
To find out more about your enforcement options, consider calling Precision Paralegal Services
Tip #5: Writing the Claim:
Writing a claim requires clear and concise storytelling. Using numbered paragraphs, write a letter to the judge introducing yourself and your relationship to the debtor. Explain what you expected to occur, when it was supposed to occur, why it did not occur and the consequences of non-compliance.
The Plaintiff’s claim is not the venue to argue conclusions about evidence. The evidence included with the claim should be illustrative and self-descriptive rather than argumentative. Its purpose is to demonstrate your relationship with the debtor and the articulate the sequence of events. Detailed and pointed evidence will be discussed at length during pre-trial conferences and eventually at trial.
A claim should answer the following detailed questions:
- When did you meet the person or business that you are suing?
- What did you and the person or business agree to? Specifically, what did you expect them to do? What reasons do you have for your expectations?
- What action or non-action caused the dispute?
- When did you realize that what you agreed to was not happening?
- What conversations and actions did you and who you suing undertake to correct the problem?
You have to attach some evidence to support your claim and to illustrate your honesty. This might include the agreement you signed, invoices, photos, drawings, estimates and corespondence.
Precision Paralegal Services has extensive experience enforcing judgement against difficult debtors. We are happy to answer your questions: please consider calling or emailing us for a free consultation.