The notice of claim
The first thing Lois
has to do is get a notice of claim form from the small claims court
registry near her, and fill it out. The instructions are all
included with the form.
she takes the form to the registry where a person behind the counter
checks it for her. She pays the filing fee and the clerk gives her
back several copies of the form and a blank reply form. This is
called "filing" the notice of claim.
blank reply form and one of the copies of the notice of claim is for
Norman. This will tell him what the lawsuit is about and will give
him the form he needs to answer it. Lois knows that he is avoiding
her, so she asks a friend to take the papers to Norman. Norman then
has 14 days, from the day he received the papers, to file his
When Norman receives
the notice of claim, he is upset. He does owe Lois money, but it was
supposed to be a no-interest loan and now she says he agreed to pay
10 per cent interest. And $700 of the money she gave him was payment
for repairs he did to her car. He has already repaid $500, so he
figures he still owes her $800. He would pay that now if he could,
but he doesn't have the money.
Norman fills out the reply form. In it he admits that he owes
her $800 but says $700 of the money Lois gave him was payment for
repairs he did to her car. He denies that he owes any interest and
asks for a payment schedule. He says he could pay $100 a month for
Norman takes the completed form to the small claims court
registry where Lois filed the notice of claim. (The address was on
the form.) The staff checks the form and accepts it for filing.
There is a fee for filing the reply.
registry now mails a copy of Norman's reply to Lois. (Norman doesn't
have to give it to her personally because on her notice of claim she
had to give her own address where she could be reached by mail.)
The settlement conference
The next thing that
happens is that Lois and Norman both get a notice in the mail
telling them to come to a settlement conference.
the settlement conference, the judge looks at the notice of claim,
and the reply, and asks Lois and Norman a few questions. The judge
tries to see if there is any chance the two can agree.
eventually agrees that the loan was supposed to be interest-free.
But they can't agree about the $700 for car repairs. Lois also isn't
happy about waiting eight months to get back $800.
judge can make a payment order right then for the $800. There will
have to be a trial about the $700 difference. The judge talks to
them about what sort of evidence each of them will need to bring.
They agree on a date for the trial.
At the trial
the judge lets Lois and Norman tell their own stories and then reply
to what the other person says, and call witnesses. The judge accepts
the evidence of Lois' mechanic that Norman did not do the work he
said he did. The judge's decision is that Norman must pay Lois the
$700 remaining on the loan.
the judge asks Norman how he plans to pay the judgment. Norman says
that $100 a month is still all he can afford. Lois says she doesn't
believe that and she needs the money sooner. They agree to come back
later for a payment hearing.
The payment hearing
the payment hearing, the judge asks Norman questions about his
finances. Lois gets to ask some questions too. Finally, the judge
orders that Norman pay $100 a month plus $500 in April, when he
receives his income tax return.
What if the defendant ignores the whole
This often happens. A person receives a notice of claim
and just does nothing. If that happened to Lois, she would have to
go back to the small claims court registry after the time limit for
Norman's reply had passed. If she could prove that Norman had been
properly served with the papers, she would get an order for payment
against Norman for the amount she was claiming, and pay the filing
fee for this order. This is called a default order. She could then
enforce that order just as if it had been made by a judge following
What will it cost me for my
That will depend on how you handle your case,
how the defendant responds to your claim and how you choose to
proceed if you win your case.
are fees set by the small claims rules for registry services and
sheriff services. .
addition to the set fees, there may be expenses and interest added
on to the total owing. If any costs are to be added to anyone's
case, the judge or registry staff will make the decision.
most situations the fees and expenses can be added to the total
amount the unsuccessful party has to pay. This means the costs the
defendant had to pay may be charged against the claimant if the
defendant is successful with a counterclaim.
you do end up hiring a lawyer to represent you, the fees you pay to
the lawyer can't be added to your judgment.
Anyone who cannot afford the registry fees may make an
application to the registrar to be exempted from paying the fees.
If I win my case am I guaranteed to
get my money?
Unfortunately, no. The court can give
you tools you can use to collect your money - such as a payment
hearing or a garnishing order. In the most extreme cases, when
someone deliberately ignores a court order, a judge can send a
debtor to jail. But some people will not pay and some cannot.
frustrating to spend time and money to prove a claim in court and
then still be unable to collect what is owing to you. If you are
thinking about making a claim in small claims court - or in any
court, for that matter - you should first consider what your chances
are of collecting, if you should win.
What if I don't like the judge's
A small claims court decision can be
appealed to the Supreme Court. But an appeal will cost money, take
time and the result might not be any different.
How can I get more
This is one in a series of booklets
available from any small claims court registry.
titles in the series are:
IS SMALL CLAIMS COURT?
TO A CLAIM
READY FOR COURT
FOR CLAIMS BETWEEN $10,000 AND $25,000
RULES - For more detailed information you may want to look at
the small claims court rules themselves. The rules have been written
people behind the counter at any small claims registry are helpful.
They cannot give legal advice and they cannot fill out your forms
for you, but they will gladly answer many of your questions about
small claims court procedures.
|The information contained in this booklet is simply an
overview of the significant provisions of the Small Claims Act and Small
Claims Rules. It is not intended as a substitute for
the Act or the Rules, which should be examined for specific
information. Also, the information is not intended to be legal
advice. If you have any legal questions, you should see a