FAQs

If you are in negotiations with the opposing party and are approaching your limitation date, you may want to secure your right to proceed with legal by issuing a claim. You do not need to serve it if you reach an agreement with the opposing party. You may also want to protect your limitation period by issuing a claim against the opposing party even if you cannot confirm their address for service or know they cannot pay the debt at the moment, but will likely be in a position to pay in the future.

The onus in on the individual to ensure the court and the other parties in the matter have an updated and proper address in order to serve documents on the party. If the individual’s address changes, they must serve written notice of the change on the court and other parties within seven days after the change takes place. Detailed notes should be kept as to when and how the individual served their new address on each party in the matter and the court. Also, be prepared for court, they may require an Affidavit of Service in the near future regarding service.

If the court or other parties are not advised by the change of address, they are entitled to serve documents at the old address, which means you will not be fully informed about the current status and relevant information in your matter. Orders may be made without your knowledge and in your absence.

Witnesses do not go to the settlement conference. The parties explain what the witnesses will say if the case goes to a trial.

The individual making service will provide the party with a copy of the document(s). If more than one party is being served, then each party much be served with their own copy of the document(s). For instance, if you have named two defendants on a claim who share the same address, you must send a copy of the document(s) to each party in separate addressed, sealed envelopes. Remember, once the other party has been served, an Affidavit of Service must be completed for each party served with a document.

To fill out an Affidavit of Service Form 8A, follow the instructions on the form. You must describe:

• The name of the person who served the document (e.g. you or a representative or friend) and where they are from;
• The name of the person who was served;
• When the document was served (day, month and year);where the document was served (e.g. house number, apartment number, street name, city, and province);
• What document was served (e.g. a claim, defence, or notice of motion); and
• The method of service (e.g. by personal service, service at place of residence, service by registered mail, courier, regular letter-mail, or fax).

If you served the documents, then you must swear or affirm that the information in your affidavit of service is true. If you had another person serve the documents, then that person must fill out the affidavit of service and swear or affirm that the information in the affidavit is true.

The affidavit must be signed in front of a person authorized to take oaths and affirmations (i.e. a commissioner for taking affidavits). The commissioner will ask the person making the affidavit to swear or affirm that the information in the affidavit is true, will ask that person to sign the affidavit, and will sign the affidavit as sworn or affirmed. Do not sign the affidavit before going to the commissioner.

Note: It is a criminal offence to swear or affirm an affidavit you know is false.

A Limitation date is a limit on how long you can wait before making a claim.

The basic rule in calculating your Limitation Period is 2 years from the date of the event or default. However, some actions require a more in-depth look at the calculation of the limitation period start and end date. If you have a simple unpaid debt, you can usually rely on the date of the last payment or date of an invoice, to calculate the start of the limitation clock, however, in some cases it may start earlier, or can be extended.

If the claim is regarding an event or damages outside of a simple unpaid debt, the limitation period generally starts from the date of the event, or the date you became aware you may have suffered damages. This can be subjective in some cases and you may want to research the issue of limitations further.

When the limitation period is a question you need to be answered, it is best to contact a paralegal to assist you in determining the date of the limitations.

Once your claim is issued, you have a very specific time period to serve the claim. In Ontario you have 6 months to serve your claim, and in AB you have 1 year. If you cannot serve your claim within this time frame you will need to file a motion or application to extend the time for service.

Settlement conferences are to take place in every defended action within 90 days after the first Defence is filed.

These conferences are very informal and normally involve the parties, their legal representative (if any), and a Deputy Judge (who will not be gowned). They normally last between 30 minutes to an hour.

The manner in which settlement conferences are conducted will largely depend on the Deputy Judge. Some Deputy Judges will hear the parties summary of the issues and then offer their own thoughts, while others proceed to ask specific questions to the parties or their paralegals right from the beginning.

Having a competent representative beside you at the settlement conference will ensure that you make the most if it, and in many cases, facilitate the prompt resolution of your matter without the need to go to trial. Contact us if you need representation (15 days notice before your settlement conference, if possible).

The purpose of the settlement conference is first and for most, to determine if the case can be resolved without the necessity of a trial.  If the matter cannot be resolved, the presiding Deputy Judge will help the parties narrow the issues and prepare for trial. Procedural orders may be made by the settlement conference judge, such as an order for disclosure of specific documents, or an order to extend or shorten a timeline for a party to complete a certain task.

It is recommended to attempt to serve the document at varying times of the day and on weekends. This is important if the legal documents do not get served and as you will need to prepare and file an Affidavit of Attempted Service. In the affidavit the court will want to know that you have tried at appropriate times of the day.

While some legal costs can be recovered in Small Claims Court, the amounts awarded to successful parties are significantly limited by the Rules of the Small Claims Court and the Courts of Justice Act. This is why it is important that you seek legal representation that is experienced with Small Claims Court litigation, and offers fees that are proportional to the nature of these claims.

In cases where the parties reach a settlement out of court, your paralegal may agree, as part of the settlement with the other party(ies,) to include some amount in the agreement to cover some of the legal expenses of the litigation.

In matters that proceed to trial, the Rules of the Small Claims Court (in conjunction with section 29 of the Courts of Justice Act) provides that a successful party may recover expenses associated with legal representation fees (i.e. your paralegal fees) for up to 15% of the amount being claimed in the action. That means that if the action seeks an award of $20,000, the successful party may be awarded up to $3,000 in legal fees. Generally, a successful self-represented party will not be awarded more than $500 for the inconvenience and expense associated with the action.

Parties may be able to recover amounts in excess of this 15% rule for their paralegals fees in cases where a successful party made an offer to settle, that was not accepted by the opposing side, and the party obtains a judgment that is as favourable, or better than the offer. The cost consequences associated with this failure to accept an offer cannot amount to more than twice the costs that would be awarded to the successful party.

Disbursements (other costs associated with the litigation) are recoverable in addition to the paralegals fees, though there are also some limitations provided in Rule 19 of the Rules of the Small Claims Court. For example, a party will not normally be awarded more than $60 for the costs to effecting service (per defendant). The amounts of disbursements associated with preparing a Plaintiff’s Claim or Defendant’s Claim shall not exceed $100. Examples of other costs that may be recovered in addition to your paralegals’ fees are expert fees, copying costs, and reasonable expenses for travel and accommodation.

The Rules of the Small Claims Court also provides that a penalty may be awarded against a party which has unreasonably complicated or prolonged the action, though this type of award is rare.

Since all these rules are complex, you should be represented by someone familiar with them in order to maximize the costs that may be awarded to you if you are successful in the litigation. A competent representative will also help minimize the costs awarded against you, if you do not succeed in your claim

If the judge grants your motion, you can ask the judge to make the other party pay some of your costs. These costs can include court filing fees, representative fees, and expenses for witnesses, photocopying, faxing and delivery of documents.

The court office will accept a defence for filing as long as the plaintiff has not noted the defendant in default. If the defendant has been noted in default, the Rules provide that the party cannot file a defence or take any other step in the proceeding. The party will need to make a motion to set aside the noting of default, without leave of the court or the plaintiff’s consent.

The answer is YES. In some cases, the other party may contact you directly and offer to pay you or try to settle your claim in some way. If that happens, you’re free to come to whatever arrangement you like or direct them to your legal representative. If you’re happy with the defendant’s offer, you don’t have to continue with your lawsuit. However, you should prepare a Terms of Settlement form for all parties to execute so that your agreement is in writing.  You can then file the Terms of Settlement with the court to keep them apprised of the situation.

Depending on who you are serving changes the personal service requirements in Ontario Small Claims court.

The Rules State:

Personal Service

8.02 If a document is to be served personally, service shall be made,

Individual

(a) on an individual, other than a person under disability, by leaving a copy of the document with him or her;

Municipality

(b) on a municipal corporation, by leaving a copy of the document with the chair, mayor, warden or reeve of the municipality, with the clerk or deputy clerk of the municipality or with a lawyer for the municipality;

Corporation

(c) on any other corporation, by leaving a copy of the document with

3. an officer, a director or another person authorized to act on behalf of the corporation, or
4. a person at any place of business of the corporation who appears to be in control or management of the place of business;

Board or Commission

(d) on a board or commission, by leaving a copy of the document with a member or officer of the board or commission;

Person Outside Ontario Carrying on Business in Ontario

(e) on a person outside Ontario who carries on business in Ontario, by leaving a copy of the document with anyone carrying on business in Ontario for the person;

Crown in Right of Canada

(f) on Her Majesty the Queen in right of Canada, in accordance with subsection 23(2) of the Crown Liability and Proceedings Act (Canada);

Crown in Right of Ontario

(g) on Her Majesty the Queen in right of Ontario, in accordance with section 10 of the Proceedings Against the Crown Act;

Absentee

(h) on an absentee, by leaving a copy of the document with the absentee’s committee, if one has been appointed or, if not, with the Public Guardian and Trustee;

Minor

(i) on a minor, by leaving a copy of the document with the minor and, if the minor resides with a parent or other person having his or her care or lawful custody, by leaving another copy of the document with the parent or other person;

If you received judgment in your favour (successful), you may be entitled to recover some costs.

If you served the document by mail or courier and wish to recover the costs, you must provide the court office with a receipt showing what you paid.

If someone was hired to serve the document on your behalf, you must provide the court office with a detailed invoice or statement detailing the amount paid to have the document served. A maximum of $60 per person to be served can be claimed regardless of the amount paid or number of attempts made to serve the document, unless the court orders otherwise under Rule 19.01(3).

The other parties have the chance to respond to the motion and fill out their own Affidavit forms stating facts that they want the judge to consider before granting a motion. Any response must be served on the other parties and filed with the court at least two days before the court date for the motion.

A plaintiff’s claim and defendant’s claim must be served on the defendant within six months after the date the claim is issued by the court. If there is more than one defendant in the case, all defendants must be served within this time frame.

It is extremely important that you conduct searches on the business you are suing prior to issuing a claim. If you do not name a party correctly, it can be impossible to collect the funds due to you. Further, if you make a mistake in naming a party you can get to the stage where judgment can be obtained but you can be forced to amend your claim and basically start the process all over again.

The court office will accept a defence for filing as long as the plaintiff has not noted the defendant in default. If the defendant has been noted in default, the Rules provide that the party cannot file a defence or take any other step in the proceeding. The party will need to make a motion to set aside the noting of default, without leave of the court or the plaintiff’s consent.

To ask a judge to make an order/decision about your case, you must make a motion.

Steps required to making a motion:

1.Fill out a Notice of Motion and Supporting Affidavit form.

2.Explain what you want and why including the facts supporting your motion.

3.Once a hearing date is obtained for the motion from the court make sure to write this date on the Notice of Motion and Supporting Affidavit form.

4.Serve the Notice of Motion and Supporting Affidavit on the other parties. This must be done at least seven days before the court date for the motion.

5.Bring to the court the completed Notice of Motion and Supporting Affidavit and an Affidavit of Service at least three days before the court date for the motion.

6.Pay the court filing fee for the motion. Read the Guide to Fee Schedules for information regarding fees.

The estimated cost of a process server ranges from $85-150.00 in most cases. The cost may vary depending on the location of the party being served and the type of document being served. Most process servers will provide you with a quote before you decide to hire them and will usually include up to 3 attempts in serving the document before they close their file.

You can sue up to $35,000.00 in Ontario Small Claims Court.

The answer is YES. A plaintiff can file a motion to request an order to extend the time for service. You must explain to the judge why you were not able to serve the claim within the six months period.

A motion is a formal request to a judge to make an order about your case. Anyone who is a party to a case can make a motion.

Motions can be helpful towards your matter, however, be mindful it may prolong your matter and cost more money.

Examples of motions in Small Claims Court:

• A defendant could ask the court for more time to send in a Defence or a Defendant’s Claim.
• A party could ask the court to resolve a specific issue in the case, for example to extend time to pay costs ordered by the court.
• A party could ask the court to change an order that has already been made. For example, the defendant could ask the judge for an order to overturn default judgment granted against him or her.
• The defendant could ask the judge for an order stating that the money owed has been paid in full, or goods returned.

If a party did not receive a document that was supposed to have been served on them under Rule 8, or was received after the specified time frame allowed under the Rules, the party can bring a motion to the court for the order they need in the circumstances.

For example: Where a defendant does not receive the claim but receives a default judgment from the court, they may wish to bring a motion to set aside the default judgment and an extension to file a defence. If a defendant receives a notice of motion less than 7 days before a hearing date, they may request an adjournment in order for them to have more time to prepare.

When writing your Small Claims Court it is important to follow these simple rules:

• Keep it simple
• Keep to the facts.
• Number your paragraphs
• No need to recite the evidence you will rely upon
• Use dates and be specific wherever possible
• Explain what lead up to the event, what happened to cause the conflict, Why the other side owes you money, explain attempts to obtain payment, and how do you calculate the amount owing.

The answer is no, if personal service is not required under the Rules. Most often service of documents are sent by mail or by courier, dropping it off at an office, or having someone serve on your behalf.

At times distance may make it inconvenient or impossible for an individual to serve their own documents. It may be an awkward or potentially confrontational situation which may make it uncomfortable. If sending the documents by mail or by courier is not allowed under the Rules, there are professional process servers who will serve the document for you, for a fee. Contact Precision Paralegal if you are looking for a process server.

You may also ask a friend to do it for you. If you have a friend in another town where the other party is located, you may be able to mail it to a friend there and have them serve it for you.

Note: An Affidavit of Service will have to be filed with the court that is signed and sworn or affirmed by the person who served the document

The length of a Small Claims Court trial varies significantly based on the complexity of the issue(s).  Since the monetary jurisdiction of the Small Claims Court was raised to $35,000.00, multi-day trials in Small Claims Court have become more frequent.  While some matters can last just a couple hours, some can last up to several days.  The length also depends on the number of witnesses and how well the parties are prepared.

You may find yourself unable to serve your claim because the party has moved and you cannot find a forwarding address. You might be under the impression that the party knows you are trying to serve the claim and is avoiding you. In either case, you may file a motion to seek an order for substituted service under Rule 8.04.

The Rule States: “8.04 If it is shown that it is impractical to effect prompt service of a claim personally or by an alternative to personal service, the court may allow substituted service”. The method ordered by the court is substituted for the method(s) of service allowed for that particular document and on that particular party in the Rules.

A corporate search can be done by using an online service by third party companies such as ESC (https://www.eservicecorp.ca/) or Cyberbhan (https://cyberbahngroup.ca/) , or you can contact us at PrecisionParalegal (https://www.precisionparalegal.ca) and we can conduct the search(es) for you for a small fee.

Corporate Searches can cost roughly $50 per document and you may be able to claim these fees back in your judgment.

A corporate search or business names search is likely one of the most neglected parts of litigation by a self represented party.

It is extremely important that you conduct searches on the business you are suing prior to issuing a claim. If you do not name a party correctly, it can be impossible to collect the funds due to you. Further, if you make a mistake in naming a party you can get to the stage where judgment can be obtained but you can be forced to amend your claim and basically start the process all over again.

A business names search will tell you if the company you are suing is a corporation, sole proprietorship, or partnership. It is important to know which type of company you are dealing with because the rules of serving the claim will be different for each. Also, you may be able to sue the owner of the business depending on the type of company it is.

A Corporate Profile Report tells you the registered head office address for the company and the names and addresses of all the directors and officers for the corporation. It also can confirm if the corporation is still “active” (being Active does not confirm the company is still operating, just that they continue to have an active company registered with the government). The report will also advise you when the company was registered, in what province, if it’s a federally incorporated company, and if it has any registered business names. All of this information is helpful when deciding who to sue, where to sue, and where to serve the claim amongst other things.

A business search on a sole proprietorship or partnership will tell you the properly registered business name as well as the registered owner or partners in the company. You will want to name both the business and the individual(s) who own the company. The search will tell you the registered address for the business as well as the names and addresses of the owner/partners. The search will also advise if the company is still active and when it was first registered.

If you are attempting to search for a company and you cannot locate it, there may be other options available to you. You should contact a paralegal to assist you in determining the best way to move forward.

Rule 8 for Service must be followed when serving Small Claims Court documents. In some cases it is the clerk of the court who will serve documents by mail. However, most cases it is the party’s responsibility to serve their own documents on the other parties. The rules below outline how specific documents are to be served.

Default Judgment

8.01 (4) A default judgment (Form 11B) shall be served by the clerk, by mail or by fax, on all parties named in the claim.

(4.1) Despite subrule (4), if a plaintiff’s claim was issued electronically under rule 7.04, the clerk may serve the default judgment on the plaintiff by email to the email address provided by the plaintiff for the purpose, if these rules permit it.

Assessment Order

(5) An order made on a motion in writing for an assessment of damages under subrule 11.03(2) shall be served by the clerk to the moving party if the party provides a stamped, self-addressed envelope with the notice of motion and supporting affidavit.

Settlement Conference Order

(6) An order made at a settlement conference shall be served by the clerk by mail or by fax on all parties that did not attend the settlement conference.

Summons to Witness

(7) A summons to witness (Form 18A) shall be served personally by the party who requires the presence of the witness, or by the party’s representative, at least ten days before the trial date; at the time of service attendance money calculated in accordance with the regulations made under the Administration of Justice Act shall be paid or tendered to the witness.

Notice of Garnishment

(8) A notice of garnishment (Form 20E) shall be served by the creditor,

(a) together with a sworn affidavit for enforcement request (Form 20P), on the debtor, by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03; and

(b) together with a garnishee’s statement (Form 20F), on the garnishee, by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

Notice of Garnishment Hearing

(9) A notice of garnishment hearing (Form 20Q) shall be served by the person requesting the hearing on the creditor, debtor, garnishee, co-owner of debt, if any, and any other interested persons by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

Notice of Examination

(10) A notice of examination (Form 20H) shall be served by the creditor on the debtor or person to be examined personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

An interpreter translates communication from one language to another. Small Claims Court provides interpretation services for all court proceedings and written documents from English to French and French to English. If you or your witnesses will need language interpretation in court from French to English or English to French, notify the court office at the outset of the case.

Interpretation from English or French to any other language must be arranged for, and paid by, the party who requires the interpretation. The interpreter must be accredited as being capable of performing that function.  You cannot use a friend or family member to interpret for you or your witness.

Note: If no interpreter is provided at the time of trial, it may result in an adjournment or costs being awarded against the party.

If the person you are looking to sue normally lives in Ontario but is away, for instance, they took up a job in Montreal, you can serve the claim on the person in Montreal just as you would if they were residing in Ontario.

If the person lives or carries on business outside of Ontario, you could serve your claim on the person outside of Ontario just as you would if they lived or carried on business in Ontario. If you request it, the court may award additional costs to you to cover any extra expense involved in serving the claim outside Ontario.

The Defendant has 20 days within service of the claim to respond. There are several ways a Defendant can respond to a Plaintiff’s Claim. The defendant may:

• Agree to pay all of your claim in full or by way of payments;
• Oppose all or part of the claim;
• Make a claim against you and/or another party, called a Defendant’s Claim

If you are serving the claim yourself on a business:

• Do you have a corporate search? If not, you will want this prior to issuing and/or serving your claim. See our video on “suing a business” or “what is a corporate search”
• it must be hand-delivered to the company and left with the person in charge at the time of your attendance.
• If there is only one person in attendance at the time of service, they are assumed to be in charge
• You need to obtain the name and position of the person you leave it with
• You need to take note of the date and time you serve it.
• If the company is no longer at the registered head office address, and you have attempted to serve the claim there, you can send it by regular mail to the address, and to the address of all directors outlined on the corporate profile report

For claims under $3,500, parties who cannot reach an agreement at the settlement conference may ask a judge to decide the case at the settlement conference. If the judge decides the case at the settlement conference, the case ends and there is no trial.

A process server is someone who is trained to serve legal documents. Different types of documents can be served in different ways. A process server knows all the rules of service and determines the proper way to deliver the legal documents.

Once they serve the documents, they prepare all the necessary paperwork required to prove to the court that the legal document was served. This is called an Affidavit of Service. If the process server makes several attempts to serve a document but is unsuccessful, they will generally provide you with a document called Attempted Affidavit of Service. This affidavit can be used to assist you in obtaining an order by the court to serve the document in a different way, not normally permitted by the rules.

Most process servers will attempt to serve the document at varying times of the day and on weekends before they close their file. This is important if the legal documents do not get served and you need an Affidavit of Attempted Service, as the court will want to know that you have tried at appropriate times of the day.

The defendant may file a Defence disputing all or part of your claim. The Defendant may also file a Defence admitting to the full claim, at which time they must also make a proposal on how they will pay the amount to you.

If the Plaintiff’s Claim is disputed in all or part, the Small Claims Court then sets a date for a settlement conference. If the Plaintiff’s Claim is not disputed, and a payment proposal is outlined, the Plaintiff has 20 days to dispute the terms of payment, by requesting that a Terms of Payment hearing be scheduled. If a Terms of Payment hearing is not requested within this timeline, the Plaintiff is deemed to have accepted the offer outlined in the Defence.

If you are serving the claim yourself on an individual:

• obtain the name of the individual in the household that you are giving the claim to, if not the party you are serving – if they don’t provide it to you, that’s ok.
• No signatures are required when serving a claim on your own
• Take note of the date and time of the service
• Do not leave it with someone who appears to be under the age of 16
• If serving them at work, you must hand-deliver it to the person you are suing. You cannot leave it with anyone else at the place of work.
• You cannot leave the claim in a mailbox or at the front door.
• Someone must be home to accept service. If they choose not to accept service you can leave it at their feet, but only after confirming the individual lives at the address with the party, you are serving.

If there is no agreement between the parties, the court will hold a meeting no later than 90 days after the first Defence is filed with the court. This is called a settlement conference. All parties must attend unless the court orders otherwise. This meeting usually takes place in a private room with the judge and the parties sitting around a table.

The goal of this meeting is to find a solution both parties can accept. If it is not possible to find a solution for the whole case, the judge will try to get the parties to agree on some of the issues. If all issues are not settled at this meeting, then a trial will be planned.

If you find yourself unable to serve a document by means of personal service, you may choose an “alternative to personal service.” This means that you are choosing another method of service for instance, serving at a place of residence: permitted by the following rules.

Rule 8 States:

Alternatives to personal service

8.03 (1) If a document is to be served by an alternative to personal service, service shall be made in accordance with subrule (2), (3) or (5); in the case of a plaintiff’s claim or defendant’s claim served on an individual, service may also be made in accordance with subrule (7).

At Place of Residence

(2) If an attempt is made to effect personal service at an individual’s place of residence and for any reason personal service cannot be effected, the document may be served by,

(a) leaving a copy in a sealed envelope addressed to the individual at the place of residence with anyone who appears to be an adult member of the same household; and

(b) on the same day or the following day, mailing or sending by courier another copy of the document to the individual at the place of residence.

Corporation

(3) If the head office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with the Ministry of Government Services, service may be made on the corporation

(a) by mailing or sending by courier a copy of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address and

(b) by mailing or sending by courier a copy of the document to each director of the corporation as recorded with the Ministry of Government Services, at the director’s address as recorded with that Ministry.

If the defendant does not file a Defence within the specified time limits, or contact you to resolve the claim, you can file a Request to Clerk form to note the Defendant in default for failing to file a Defence.  This will prevent the Defendant(s) from filing a Defence after the timeline has expired without first bringing a motion for the courts permission to do so.

If the claim is for a liquidated debt (unpaid invoice, loan agreement, etc.) you may also request the clerk of the court to issue a Default Judgment.  You must complete the form yourself.

If your claim is for damages or an non-liquidated debt (damage to property, injury, etc.) then you can either file a motion in writing to request judgment or request an Assessment hearing so that a judge can decide on the appropriate amount of the judgment and any associated costs you are requesting.

A defence is your response to the claim. The Rules provide for several types of service of a defence. How you serve the defence, and on whom, depends on what type of plaintiff is suing you (whether the plaintiff is a person or a company). The rules state: “8.01(14) The following documents may be served by mail, by courier, by fax, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03, unless the court orders otherwise: 1. A defence. 2. Any other document not referred to in subrules (1) to (13).”

The answer is YES. The parties can also settle the case by talking about it outside of Small Claims Court. There does not have to be a written offer. If the case is settled in this way, the parties should make an agreement in writing and sign it.

The judge will decide what kind of substituted service will be permitted. Types of substituted service you might request are:

• Leaving the claim with a relative of the defendant;
• Mailing the claim to the address of the defendant’s employer; or
• Posting the claim on the door of a particular residence or other place

Before asking for an order for substituted service, several tries should be made to serve the document by the method or methods provided by the Rules. Be prepared to give details of how you tried to serve the claim, what happened and why the method of service you are asking for will succeed.

If the court makes an order allowing substituted service, you must serve on the party the following:

• A copy of the order;
• The notice of motion and supporting affidavit; and
• The claim.

Note: An order made by a judge in Small Claims Court is generally set out in an endorsement record. An endorsement record is the official document that records the judgment or court order.

The most common reason is non-payment of rent.  But a tenancy can also be terminated because the tenant or a guest has willfully damaged the rental unit, is disturbing the quiet enjoyment of other tenants, has allowed too many people to live in the unit, or is impairing the safety of others.  At the end of a tenancy, the tenancy can also be terminated if the tenant has persistently paid rent late.

Back in 1998, the Ontario government set up a tribunal under the Ministry of Housing to handle all issues relating to residential landlord and tenant matters.  This body is now known as the Landlord and Tenant Board.  It administers the Residential Tenancies Act (herein, “the Act”), a law that regulates all residential rentals in Ontario.  The Landlord and Tenant Board has exclusive jurisdiction in the area of residential landlord and tenant law.

You are responsible, firstly, to pay your rent on time.  You are also responsible for ordinary cleanliness of the rental unit, and to repair any undue damage to the unit caused by you, or someone you have permitted in the rental unit.

Yes, but only on 24 hours written notice, and only for specific purposes.  The written notice has to give the reason for the entry, the date, and a time between 8 a.m. and 8 p.m.

The law does not allow a landlord to withhold any vital service that is included in the tenancy agreement.  If this happens, you have the right to apply to the Board with a Tenant’s Application.

This is an urban myth.  The Landlord and Tenant Board sits all year long and can make an order for termination of the tenancy at any time.  The landlord then has the option of instructing the Enforcement Office to carry out an eviction.

Community legal clinics, funded by Legal Aid Ontario, are available in many communities.  They provide advice to tenants free of charge.  They can advise you as to whether you may have the right to bring a Tenant’s Application before the Board.  At hearings before the Landlord and Tenant Board, you can speak with duty counsel, a lawyer provided through Legal Aid, and they can also advise you of your legal rights. Additionally, the Board has skilled mediators available at each hearing location, and they can often help you to work out a solution with your landlord.

This is a valid reason to terminate the tenancy, but you must provide sworn evidence that you require the property in good faith for residential purposes and you must intend to live there for at least one year.  Compensation has to be paid to the tenant equal to one month’s rent, or you must provide an acceptable alternative unit.  There are severe penalties for bad faith applications, so this is something you would want to discuss with a legal services provider before taking any action.

You can give notice to your tenants to terminate the tenancy, but only on certain conditions being met.  You are giving notice on behalf of the purchaser, and the purchaser must, in good faith, require possession of the property with the intention of living there.

An experienced paralegal will be familiar with the provisions of the Act and can assist you by responding to any questions from the Board Member who presides at the hearing.  Additionally, the Board offers mediation services, with mediators who can help “balance” the discussion and find practical solutions to any issues that have arisen between landlord and tenant.  Meeting with your tenant in mediation can help you to avoid a hearing altogether because you can work out a solution with your tenant and keep control of the process.

The landlord has to serve the appropriate notice on the tenant.  There are seven different notices available to landlords on the LTB website. Then the landlord has to apply to the Landlord and Tenant Board on the basis of that notice, and obtain an Order from the Board terminating the tenancy.  A hearing before the Board is scheduled, and both parties have to appear to explain their position to a Board Member, who listens to both sides, and makes a decision based on the evidence presented.

An experienced paralegal can help you move through the process.  The notice given to the tenant is especially important because it has to be “letter perfect” before the Board will act on an application based on that notice.

The most common reason is non-payment of rent.  But a tenancy can also be terminated because the tenant or a guest has willfully damaged the rental unit, is disturbing the quiet enjoyment of other tenants, has allowed too many people to live in the unit, or is impairing the safety of others.  At the end of a tenancy, the tenancy can also be terminated if the tenant has persistently paid rent late.

As long as your tenants continue to pay rent and are not in violation of any of the provisions of the Act they can stay in the property.

You may then ask what is the point of having a lease/tenancy agreement?

The Tenancy Agreement sets out the terms of the tenancy and lets everyone know where they stand in relation to the tenancy.  It will include the amount of rent to be paid by the tenant, the obligations of each of the parties, and any special provisions of the tenancy (for example, whether smoking is allowed in the unit).  It can lay the groundwork for termination of the tenancy should problems arise at a later date.

As of April 30, 2018, there is a prescribed form of Tenancy Agreement that must be used by all residential landlords in Ontario. You can find the Residential Tenancy Agreement here.

A residential tenancy in Ontario can only be terminated in one of two ways: (1) by a mutual written, signed agreement between landlord and tenant(s); or (2) by an Order of the Landlord and Tenant Board.  The Act states as one of its purposes that it tries to “balance the rights and responsibilities of residential landlord and tenants.”

Where situations warrant, a good contractor will properly explore the prospective job site in advance of making a quote or a contract.  Often in these cases, the contractor does not look for more money.  However, some contractors, through accident or design, end up looking for more money part way through the project.  Absent some exceptional circumstances, the contract price put forwarded by the contractor would still apply.

Where we most often see requests for more money are from contractors who were not properly vetted and satisfied all the criteria in our checklist.  Often these are small contractor operations who do not have a lot of money on hand and are either poor at quoting for projects or else are not able to execute them well.  In either event, they find themselves short on money and therefore without the means to finish the project.  This puts the homeowner in a difficult position.

If the work is generally of good quality and the additional amount requested is within 10% of the contract price then the homeowner may wish to pay it.  (It should be repeated that under the Consumer Protection Act a contractor may increase their price by up to 10% of a quoted price.)

If, however, very little work has been done and the contractor is looking for the balance of the contract price then this can be harder to determine how to address the situation.  The contractor has already been exposed to have cash flow issues and there is no guarantee that further payments will result in further work.  In fact, we have seen situations where the contractor took additional monies and then disappeared altogether.  One potential way to manage such a request is to agree to pay for any materials or subtrades directly.  For example, if the work involves a delivery of tiles then the homeowner could pay the supplier directly as opposed to paying the contractor.

If, however, the request is excessive and the homeowner will not acquiesce to it then this will could create a situation where the contractor ends up being in breach of the contract.

There is a saying that good fences make for good neighbours.  We also say that good contracts make for good business relationships.  In order to avoid any confusion or ill will it is highly recommended that any changes to the project be properly discussed, negotiated and committed to writing by way of a change order.  Too often we see situations where a contractor demands payment at the end of a project for changes made by the homeowner and the prices are far more than what the homeowner anticipated. A dispute ensues and litigation sometimes follows.

Technically speaking, the contractor should be putting forward written change orders as they occur and if this is not happening the homeowner should request it or, perhaps, undertake it themselves

Sometimes the work of the contractor is not of good quality and it is discovered either by the homeowner themself, by a building inspector or a third party. This can create a difficult situation.  If the work is being reviewed by a municipal inspector then specific deficiencies may be identified and their remediation monitored and reviewed by the same inspector.  However, in situations where there is no such inspection (and not all work requires municipal inspections) then a homeowner may need to call in another contractor or a specialist.

If the contractor’s work is found to be deficient then technically the contractor has the first to remedy it unless the deficiency is of such an extreme nature that it constitutes a material breach of the contract.  If it is not a material breach and the contractor can and does remedy the deficiency then all is well and good.  It is only in situations where the contractor refuses to remedy the deficiency or it is a material breach that serious problems arise.

In situations where it is not a material breach and the contractor refuses to remedy it then this should be documented in writing.  Specifically, the deficiency should be identified and a deadline for remediation should be set failing which another contractor will be hired to undertake the work and any extra costs will be borne by the initial contractor.

In situations of a material breach the problem should be identified and explained by way of another contractor, expert or engineer and a demand for any additional costs made (or at least have the contractor put on notice for them if they are not readily known at the time).

One of the leading types of home renovation complaints is the contractor has abandoned the job after receiving a significant amount of money and doing very little work. Too often in such cases we are confronted with a situation where very little is known about the contractor (e.g. a first name and a cell phone only).  If there is a written contract and the building renovator has missed the deadline to complete it then the homeowner may wish to put the contractor on notice of the default and afford them the opportunity to return to the job site to finish the work.  This is not necessarily required, however, as failure to complete a project on time may be considered a material breach by the court.  From a pragmatic aspect, however, and if one is looking to avoid litigation, then it may be a prudent course of action.

If the contractor has indeed left, or has neglected to return after being the afforded the opportunity to do so, then the home owner is well within their rights to hire another contractor to finish the job.  Before doing that, however, and in possible anticipation of having it sue the original contractor, the homeowner should obtain three quotes from other contractors to finish the project.  This is because the court needs to be satisfied that the costs of completion that are incurred are actually reasonable.

Any amounts spent over and above the original contract price to finish the job would then become the responsibility of the original contractor.  For example, if a homeowner entered into a contract for a $50,000 renovation with a $30,000 deposit and the contractor then abandoned the project mid-way through then the contractor would be responsible for any costs over and above the $50,000 to finish the job.  Consequently, if the homeowner had to hire another contractor to finish the job for a further $30,000 then the homeowners total expenses are $60,000 which is $10,000 more than the initial contract price.  The initial contractor could then be sued for this amount since the homeowner is entitled to be put into the same position as they would be had the initial contract been competed as agreed.

If you find yourself in a situation where a renovation contract has not been completed as agreed and litigation looks like your only option then we have a few suggestions:

• Take pictures of the incomplete or deficient work.
• Get at least three quotes to fix and/or finish the job.
• Put the contractor on notice that litigation is pending if a resolution is not reached.
• Consult a legal representative before undertaking any legal action.
• Do NOT post any negative on-line reviews as this can interfere with any resolution.

While not always the case, be prepared for the contractor to file a counter claim if you ultimately decide to sue them.  We see this most often in cases of alleged deficiencies.  The homeowner sues for the costs to fix and/or finish the job and the contractor counter sues for the amount left owing on the contract.  It is then left to the judge to determine who is owed how much and why.  Only after such a determination can the claim or counterclaim be properly disposed of.

A paralegal is a trained professional who can assist you in a variety of legal matters.  A paralegal is licensed by the Law Society of Ontario, carries errors and omissions insurance and must follow a Professional Code of Conduct.