Frequently Asked Questions (FAQ’s)

There are generally three things we look at whenever a prospective client calls us about suing in the Small Claims Court regarding a home renovation gone wrong.  Is a case winnable; Is it collectable; and is it affordable to retain us.

Is it Winnable
During our initial consultation we will listen to the fact situation you find yourself in and determine if you have a winnable case based on applicable legal principles, your contract and the Ontario Consumer Protection Act.  Please note that providing an assessment is an ongoing process and our assessment may change as more information becomes available to us during the course of a proceeding.

Is it Collectable
In addition to determining if a case is winnable we also want to explore what are the chances of recovering on a judgment if a matter proceeds all the way to a trial.  If the contractor is a long-established business with many employees and a commercial address then chances of recovery are probably good.  If, however, the contract is a single individual, who has not business address, does not own a home and only has a cell phone for a business presence then collecting on any judgment could be poor.

Is it Affordable to Retain Us
The last thing that we look at is if it is affordable to retain us.  The Ontario Small Claims Court can hear matters up to $35,000 and can award a successful party up to 15% of the claim amount towards their legal fees. The Alberta Small Claims Court can hear matters up to $50,000. Generally speaking, we can offer provide some type of legal assistance for matters greater than $5,000. For matters under that amount it is generally not cost-effective to retain us.

A word of caution: Home renovation cases are among the most difficult and time-consuming type of cases the Ontario Small Claims Court has to hear.  They often involve multiple issues, legions of deficiencies or incomplete work, dozens or even hundreds of photographs and competing assessments from various contractors, inspectors and even engineers.  All of this makes for a very difficult case for a try judge to adjudicate upon.

We say this not to dissuade you from litigation but rather as a cautionary note and something to take into account when looking to settle a matter without the need to go to trial.

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.

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.

Ideally, you wish to avoid having any problems in the first place and many problems can be avoided by hiring the right building renovator.  As a paralegal firm that practices in the Ontario Small Claims Court we are not necessarily specialists in advising what to look for in a home renovation contractor, however, after having dealt with hundreds of such cases over the past 20 years we have naturally developed some insight into this.  Here are some things to look for:

• A building renovator license if so required by your municipality.
• A standards certificate from any manufacturers if so available (e.g. some manufacturers of tiles, siding or stones provide training and certification to those contractors who wish it).
• Business insurance and a WSIB number.
• A registered business name and/or active corporation.
• A registered HST number.
• A physical address listed on their website or business cards (not a post office box).
• A telephone number that is routinely answered.
• References from satisfied customers that can be verified.
• Positive reviews on Google and Homestars.
• A Better Business Bureau profile with a positive rating.
• A written contract compliant with Ontario’s Consumer Protection Act that clearly specifies the scope of work, price and completion date.
• A deposit not greater than 50% of the total cost of the project.
• Payments accepted by credit card or by cheque payable to the business name.

Too often, a potential client comes to us after their contractor has abandoned the job in an unfinished state after taking nearly 100% of the money in cash and all they have is a first name, a cell phone number (which is not answered) and none of the checks listed above.  In such instances there may be very little that we can do.  Consequently, one of the best ways to protect yourself with respect to a home renovation job is to follow the checklist listed above.  While it does not and cannot guarantee a problem-free experience it greatly increases your chances of having one.

Before you commit to any particular contractor, you may also wish to determine if a municipal building permit is required for your scope of work and, if yes, who is going to be responsible for obtaining it.

Ontario’s Consumer Protection Act requires the building renovator to draft and present you with a written contract in advance of any work to be completed.  At a minimum the contract requires the following:

• The legal business name, address and telephone number of the building renovator.
• Your name and address.
• An accurate and sufficiently detailed description of the work to be completed.
• The total price for the aforesaid work.
• A timeline for the commencement and completion of the work.
• The date the contract is entered into.

If the contract is entered into at your home, the contract is also supposed to set out your 10-day cancellation rights under the Consumer Protection Act.

In any event, you are supposed to be provided with a written copy of the contract that you can keep for your records.

If all goes well, the contractor will commence work on the agreed upon date.  While we do not recommend constantly looking over the contractor’s shoulder all the time it doesn’t hurt to ask for updates with respect to the progress of the work.  Sometimes unexpected things come up that could result in the contractor looking for more money.  You should note that if you were provided with an estimate beforehand then the building renovator may only increase their price by up to 10%.  If there was no estimate then, absent exceptional circumstances, the contractor should be bound to the contract price.

If work is going as planned then payments should be made in accordance with any agreed upon payment schedule.  If there are issues then they should be documented in writing.

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.

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).

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.

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.

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.

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.”

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.

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 Upper Canada and carries errors and omissions insurance and must follow a Professional Code of Conduct.  To learn more about what areas of law a paralegal can assist you with click here.

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

Yes, if you retain a paralegal you can claim back some of the fees that you are charged.  The Small Claims Court Rules put a limit on how much you can claim back from the other party and you must be successful with your claim or defence in order to recover those fees.  You can also increase the costs that you recover by showing the court that you attempted to settle the matter prior to going to trial.  There are rules and restrictions around cost orders.  At Precision Paralegal Services we make all attempts to recover as much of your costs as possible.  Contact us for more details.

Not each paralegal will charge the same.  Some will charge by the hour while some will provide you with a flat rate fee.  At Precision Paralegal Services we will charge you a flat rate fee for most of our services so that you will know exactly what you will be charged before retaining us.  For more information on our fees click here.

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.

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.

An individual or corporation may enforce an out of province judgment in the Ontario Small Claims Court per the Reciprocal Enforcement of Judgment Act. You must file a Notice of Motion and Supporting Affidavit to the court along with a certified copy of the Order from the originating Province. In the Affidavit you will need to explain how the process originated and proceeded through the system in the originating Province. You will need to explain how and when the opposing party was served with the Claim and whether they defended the action. After the Motion materials have been filed, the Ontario Small Claims Court will make an order regarding judgment.

• Example: You reside and have commenced an action in the Province of Alberta only to discover that the Defendant now resides in Ontario. You will need to obtain a certified copy of the Order from Alberta and complete and file a Notice of Motion & Supporting Affidavit with the Ontario Court where the Defendant resides or carries on business.

If a Plaintiff’s Claim has been filed within one Ontario jurisdiction but the Defendant is employed in another jurisdiction and you are looking to issue a garnishment, you will need to file a Certificate of Judgment. A Certificate of judgment must be issued by the originating court and filed in the new court where you are looking to enforce the judgment.

• Example: You commenced an action and obtained judgment within the jurisdiction of the Toronto Small Claims Court and now you are looking to serve a garnishment on the Debtor’s employer within the Jurisdiction of the Ottawa Small Claims Court, you will need to obtain a Certificate of Judgment.

Our firm works with different skip tracing companies who can help locate either the Debtor’s current employer, bank account, property, etc. The skip trace company would require as much information as possible, for example current or last known address, previous places of employment or previous banking institutions. With that information they will try to locate any active information on the Debtor so that you may proceed with your Enforcement options.

If the debtor does not pay, you can have their assets seized.

To do this:

1. 1. Fill out and bring to the court a Writ of Seizure and Sale of Personal Property form or Writ of Seizure and Sale of Land and Affidavit  for Enforcement Request.
   2. The court will give you forms to take to the enforcement office.
   3. Give the enforcement office details about the items you want taken and where to find them.
   4. Payment of an enforcement fee and deposit need to be paid to the enforcement office to cover expenses.

The enforcement office will seize the assets or land and sell them at a public auction. The enforcement office will pay the amount received for the goods to the court. Part of this money will be used to pay the court back for costs like storing the goods and advertising the sale. You will receive the money that is left over, but not more than you are owed.

The court can order a debtor’s employer or financial institute (bank) to pay to you instead of to the debtor. This is called Garnishment. For example, if the debtor is employed and receiving wages from their employer or have money in their bank account, you can ask the court to have the debtor’s employer or financial institute to pay that money into court. The court will then hold the first payment for 30 days before the court clerk issues a cheque to you. A Notice of Garnishment remains in effect for six years from the court issued date. Before the expiration date if the debt amount is not paid in full, you can renew the Notice of Garnishment for an additional six years in order to collect.

If you receive judgment in your favour it does not guarantee that you will get money from the defendant. You may find yourself having to enforce the judgment. In order for you to collect, the individual or business must have one of the following:

1. 1. Money (bank account)
   2. Assets that can be sold (property/land or vehicle, etc.), or
   3. A debt that is owed to them such as wages, rental income, accounts receivables etc.

It is best to acknowledge the financial status of the defendant before proceeding with a legal action, in doing so, it will give you a better understanding when it comes time to collecting any judgment received in your favour.

We often say that getting your judgment is only half the battle.  Collecting on your judgment can be difficult, especially if the Defendant is currently unemployed and/or does not own any property.  However, your judgment does not expire, but once it is over 6 years old you will require the courts permission to issue a garnishment.  These orders are generally granted, as long as you can show that you continuously attempted to locate the Defendant or their employment/assets on a continuing basis.  You don’t want it to look like you have abandoned the judgment at any time.

If you obtain a judgment in your favour, you may not be able to collect right away. You may have to enforce the judgment. In order for you to collect, the person/business must have one of the following:

• • Money (bank account)
  • Assets that can be sold (property/land or vehicle, etc.), or
  • A debt owed to them, such a wages, rental income, accounts receivables, etc.

Keep in mind, you may have trouble collecting if the person/business is unemployed, filed for bankruptcy, no income, or owes other debts.

As the creditor you can request an Examination Hearing, whereas the Debtor will need to attend at the Small Claims Court to answer questions regarding their financial situation. The creditor can ask the Debtor questions about their employment, property, assets, or any land that they might own. An Examination Hearing is beneficial because it provides both the Court and the Creditor with information regarding the Debtor’s financial situation.

If you do not agree with the defendant’s payment offer or payment schedule you can request a terms-of-payment hearing in front of a judge to discuss the matter further.

At the terms-of-payment hearing the defendant must show how much they can afford to pay and when. The judge may order the defendant to pay sooner than the defendant wanted. The judge could also order the defendant to pay a different amount than what was offered.

Once the plaintiff is granted judgment, and the defendant (debtor) has not paid the money owing, the plaintiff can ask the court to hold a hearing about the defendant’s finances. This is called an examination hearing.  Although this hearing is not mandatory, it allows the plaintiff to get information about the defendant’s finances in order to collect. The plaintiff files a Notice of Examination form and an Affidavit for Enforcement Request with the court, and serves them on the debtor.

For debtors who are individuals, the plaintiff will have to serve the noted above documents together with a blank Financial Information Form. Upon completion by the defendant (debtor), they must give a copy to the plaintiff and the judge.

At the examination hearing the defendant will provide information regarding their employment, income, property, bank accounts, debts, expenses and reasons for not paying. Once this information is collected, the judge may order the debtor to make payments on certain dates.

If the debtor does not make the payments ordered, there are two options for trying to get the money:

1. 1. Garnishment (e.g., bank accounts or wages)
   2. Seizure and sale of personal property or land.

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.

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 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.

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.

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 you’re suing a company, you must use the proper legal name of that company in order to fill out the claim. We can help you find the correct name of a company by conducting a simple search on the business name. This is called a Business Name Search. There is a small fee involved.

Deciding where to file your claim is an important decision. A claim must be filed in the court office that satisfies any of the following criteria:

• • The court in the territorial division where the cause of action arose (i.e. where the event took place or problem occurred);
  • The court in the territorial division in which the defendant lives or carries on business (if there are several defendants, then it can be the court in the territorial division in which any one of them lives or carries on business); or
  • At the court’s place of sitting that is nearest to the place where the defendant lives or carries on business (if there are several defendants, then it can be the court nearest to the place in which any one of them lives or carries on business).

By any means if you are unsure of where to file your claim after reviewing the criteria, you can call the court house where you believe the claim should be filed and speak with the court clerk to confirm.

The Small Claims Court can handle any action for the payment of money or the recovery of possession of personal property where the amount claimed does not exceed $35,000, excluding interest and costs such as court fees. This includes the value of all goods that the plaintiff is asking for in total, no matter how many defendants are involved. If the amount of your claim is more than $35,000, you can still proceed with Small Claims Court. However, you will have to forfeit the amount of money over $35,000, as well as any future right to get this money in any other court.

You cannot divide the amount of money you are claiming into separate cases. You cannot, for example, divide $40,000 into a $35,000 claim and a $5,000 claim in order to have the total amount dealt with in two cases.

Examples of claims that Small Claims Court handles include:

Claims for money owed under an agreement (liquidated):

• • unpaid accounts for goods or services sold and delivered
  • unpaid loans
  • unpaid rent
  • NSF cheques

Claims for damages (non-liquidated):

• • property damage
  • clothes damaged by a dry cleaner
  • personal injuries
  • breach of contract

There may be a time limit on how long you can wait before making a claim, which is set out in the Limitations Act. In most cases this is 24 months. If you are uncertain about what limitation period applies to your case, you should contact us.

Yes, you will be required to form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.  It is very important to retain and attach any documents that you have to support your claim.  The more evidence you have the greater chance of success.

Examples of evidence that would help for a successful case include:

• • Invoices
  • Returned cheques
  • Photographs pertaining to your matter
  • Record of payments
  • Email exchange

Remember, the other party is able to respond to your claim and may give evidence that will affect the judge’s view of your entitlement.

Copies of documents that you intend to use to support your claim must be attached to the Plaintiff’s Claim form if you decide to go ahead. If it is just your word against the other person’s, it may be more difficult to prove your case.

You can only sue for money or the return of personal property valued at $35,000.00 (Canadian) or less, not including interest and costs. If the amount of your claim is more than the current limit, you may still choose to use Small Claims Court because it is simpler and less expensive. However, you will have to give up any future attempt to recover the excess amount over the Small Claims Court limit, even in another court.

Yes, you will need correct information about who you are suing to properly prepare and serve your claim, and to enforce a judgment if you are successful.  If you obtain a judgment against a person or company and the name is incorrect, you will likely not be able to collect your funds.  It’s important to properly prepare your initial Plaintiff’s Claim.

The maximum amount you can sue for in Small Claims Court in Ontario is $35,000.00.  However, if your damages are more than $35,000.00, you are permitted to reduce the amount of the claim in order to proceed in the Small Claims Court.  The maximum amount of $35,000.00 is for the principal portion of your claim only, your legal costs and interest can be claimed over and above the $35,000.00.

If the defendant fails to serve and file a defence within 20 days of being served with the claim, you can ask the clerk to note the defendant in default. When you are calculating the 20 day period, you count the number of days following the date that service was effective by excluding the first day and including the last day. If the last day falls on a holiday, the period ends on the next day that is not a holiday.

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.

The person who served the document must fill out an Affidavit of Service Form 8A setting out who was served, and when and how service was made. Generally, you are not required to file the affidavit of service with the court until you are ready to proceed with your next step, or a judge orders that it must be filed. For example, if you want to ask the clerk to note the defendant in default, you would file your Affidavit of Service of the claim at the time you make the request.

If a copy of a document has been served on more than one person, then you would need to complete an affidavit of service for each person served.

If a document can served by fax, then the document is considered to be served on the day of transmission, if transmission takes place before 5 p.m. on a day that is not a holiday. If it is transmitted after 5 p.m. or on a holiday, it is considered to be served on the next day that is not a holiday. If the document is more than 16 pages long, refer to Rule 8.08 below to find out when you may fax it.

The rules state:

Service by Fax 8.08: Service of a document by fax is deemed to be effective, (a) on the day of transmission, if transmission takes place before 5 p.m. on a day that is not a holiday; (b) on the next day that is not a holiday, in any other case. (2) A document containing 16 or more pages, including the cover page, may be served by fax only between 5 p.m. and 8 a.m. the following day, unless the party to be served consents in advance.

If a document can be served by courier, then the document is considered to be served on the 5th day following the date on which the courier verifies to the sender that the document was delivered.

If you (Plaintiff) served the claim by an alternative to personal service by having it couriered to the defendant, it is considered to be served on the day the signature verifying receipt of the claim was received. You cannot file your affidavit of service until after the date the document is deemed to be served.

The rules state:

Service by Courier 8.07.1: (1) If a document is to be served by courier under these rules, it shall be sent by means of a commercial courier to the last address of the person or of the person’s representative that is on file with the court or known to the sender. (2) Service of a document sent by courier is deemed to be effective on the fifth day following the date on which the courier verifies to the sender that the document was delivered. (3) This rule does not apply when a claim is served by courier under subrule 8.03(7).

Only specific documents can be served by registered mail or courier.  If it can, then the document is considered to be served on the 5th day following the date of mailing.

If you (Plaintiff) served the claim on the defendant by an alternative to personal service by registered mail or courier, you need the signature of the individual, or any person who appears to be a member of the same household, verifying receipt before service is effective. You cannot file your affidavit of service until after the date the document is deemed to be served.

The rules state:

Service by Mail 8.07: (1) If a document is to be served by mail under these rules, it shall be sent, by regular letter-mail or registered mail, to the last address of the person or of the person’s representative that is, (a) on file with the court, if the document is to be served by the clerk; (b) known to the sender, if the document is to be served by any other person. (2) Service of a document by mail is deemed to be effective on the fifth day following the date of mailing. (3) This rule does not apply when a claim is served by registered mail under subrule 8.03(7).

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.

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.

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 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 us 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 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.

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.

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.

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;

To serve a document by means of personal service, refers to you, or someone acting on your behalf, will hand the document to the party (for example, the defendant(s)). The person serving the document must first be satisfied that the person being handed the document is in fact the party. If the party refuses to take the document, you can drop it on the floor at their feet. The person who serves the document would note this in his or her affidavit of service because it is a related detail.

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 defendant has 20 calendar days from the date they were served with the claim to serve and file their defence. After 20 days, the plaintiff can have the defendant noted in default. After 20 days have passed, the defendant may still try to serve and file their defence. The court office will accept a defence for filing as long as the plaintiff has not noted the defendant in default.

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 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.

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.

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 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 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.

A claim is the first official notice of the case that the defendant will have. Therefore, there are special requirements for serving the claim in the Rules. The Rules provide for several specific types of service of a claim. How you serve the claim, and on whom, depends on what type of defendant is being sued, whether the defendant is a person or a company.

The Rules State: “8.01(1) A plaintiff’s claim or defendant’s claim (Form 7A or 10A) shall be served personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.” We can help you determine the best way to serve your claim. Contact us for a free consultation.

You must serve the Plaintiff’s Claim on the defendant. To serve a document means getting it to the defendant. There are different ways to serve a defendant, depending on whether the defendant is a person, a company or an unincorporated business or partnership.

For example: If the defendant is a person, you can serve them by personally handing the Plaintiff’s Claim to them, leaving a copy of the claim with an adult member of the same household as the Defendant and also mailing a copy, or sending it to them by registered mail.

You can also retain the services of a Process Server to effect service on your behalf. Contact us if you are looking for a Process Server.  You can recover up to $60.00 towards the fee you pay to the process server if you are successful with your claim.

Reminder: After the defendant has been served, you must complete an Affidavit of Service to prove how and when the defendant was served.

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.

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.

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.

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

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.

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.

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.

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.