What to consider before going to Small Claims Court

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What to consider before going to Small Claims Court
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Filing a lawsuit in Ontario Small Claims Court can be an effective way to recover money or damages, but before you proceed, you should carefully evaluate whether it’s the right course of action. You should ask yourself if it will be worth it. There are a number of factors you have to consider before making a claim in Small Claims Court and a number of pieces of information you will need to collect.

IMPORTANT: Remember, court staff cannot provide you with legal advice or help you to complete all necessary forms. Do not relay on information from relatives and friends, unless they are lawyers or paralegals.

Here’s what you should consider:

  1. Is Your Claim Within the Small Claims Court Limit?

Small Claims Court in Ontario handles claims up to $35,000 (excluding interest and court costs). If your claim exceeds this amount, you can:

  • Abandon the excess and sue for $35,000 maximum.
  • File in the Superior Court of Justice, which involves a longer and more complex legal process.

Tip: If your claim is slightly over $35,000, you may want to limit your claim to avoid the extra costs and complexity of Superior Court.

  1. Do You Have a Valid Case?

Small Claims Court is not for every dispute. Your case should be:

  • Legally valid – You must have a clear legal right to claim money from the defendant.
  • Provable – You need evidence to support your claim (e.g., contracts, invoices, receipts, messages, or witness statements).
  • Within the limitation period – In most cases, you must file your claim within 2 years from when you knew (or should have known) about the issue.

Common Cases in Small Claims Court:

  • Unpaid debts (e.g., loans, invoices, rent arrears)
  • Breach of contract (e.g., service provider did not deliver as promised)
  • Property damage (e.g., car accident repairs, tenant damages)
  • Unreturned security deposits
  • Defective products or services

Not Suitable for Small Claims Court:

  • Family law disputes (e.g., child custody, divorce)
  • Employment disputes (handled by Labour Relations Board)
  • Criminal matters

Tip: If you’re unsure whether your case qualifies, consult a lawyer or paralegal.

  1. Have You Tried to Settle the Dispute?

  • Court should be the last resort – Judges expect plaintiffs to try resolving disputes informally before suing.
  • Send a demand letter – A formal letter requesting payment or resolution can often lead to a settlement.
  • Consider mediation – A neutral third party may help both sides reach an agreement without legal costs.

Tip: Many cases settle before trial, saving time and money.

What to consider before going to Small Claims Court

  1. Can You Locate and Serve the Defendant?

Information you need to have about a person or business you want to sue:

You will need the correct legal name of the person or business and a current residential or business address. Before going to Small Claims Court, you must have the exact name of the person, or of the corporation, or the Ontario corporation number, or the exact name of the registered business. For information on how to search a corporation or registered business name, you may contact the Ministry of Public and Business Service Delivery and Procurement. Please note that there is a fee for the search and the search will not be conducted over the phone.

  • You must serve court documents in person or by registered mail.
  • If the defendant cannot be found, you may struggle to proceed with the case.

Tip: If the defendant is a business, confirm their legal name and registered address using Ontario’s business registry.

  1. Are You Prepared for Court Costs?

Even though Small Claims Court is affordable compared to higher courts, there are costs involved:

  • Filing fees: $108 for online filing or $102 for in-person filing
  • Service fees: If you hire a process server to deliver documents.
  • Legal fees: If you hire a paralegal or lawyer (optional but recommended for complex cases).
  • Enforcement fees: If you win but the defendant does not pay, you may have to enforce the judgment (e.g., garnishing wages or seizing assets).

Tip: If you win, some court costs may be reimbursed by the defendant.

What to consider before going to Small Claims Court

  1. Can the Defendant Pay?

Winning a judgment does not guarantee you’ll get paid. If you obtain a judgment in your favour, you may have to enforce (attempt to collect) the judgment. In order for you to collect, the person/business must have one of the following:

  • money,
  • assets that can be sold, or
  • debts (e.g. bank account, employment income) that can be garnished.

Does the person/business owe others money? You may be able to find out by contacting your local credit bureau, enforcement office, land registry office, and/or Small Claims Court (a fee may be payable). You may find that there are other creditors who are already waiting in line to collect their judgments. Even if the person/business does not have money now, you may be able to collect your judgment in future.

  • If the defendant has no assets or income, collecting money may be difficult.
  • If the defendant files for bankruptcy, your claim may go unpaid.
  • You may need to take additional legal steps (e.g., wage garnishment, seizing assets) to enforce payment.

Tip: If the defendant is unlikely to pay, suing may not be worth your time and expense.

What to consider before going to Small Claims Court

  1. Are You Prepared for the Legal Process?

Information you need to have to support your Small Claims Court case

You will have to prove your case. Consider what witnesses and/or documents you have to support you. If it is just your word against the other person’s, it may be difficult to prove your case. Consider if you have the following:

  • Any written evidence or documentation: copies of documents (for example, contracts, N.S.F. cheques, record of payments), photographs and other that you intend to use to support your claim must be attached to the claim form if you decide to go ahead.
  • A record of any payments, returned cheques, etc. and/or a clear recollection of what happened and when: you will be required to write in the plaintiff’s claim form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
  • Witnesses that can support you

Taking a case to court requires time and effort.

  • Paperwork: You need to correctly complete and file Form 7A (Plaintiff’s Claim).
  • Court Hearings: You must attend a Settlement Conference and possibly a trial.
  • Evidence Presentation: Be ready to present contracts, emails, invoices, receipts, and witness statements.

Tip: Stay professional and organized – Judges favour those who present their case clearly.

What to consider before going to Small Claims Court

  1. Time You Have to Spend

There may be a time limit on how long you can wait before making a claim in Small Claims Court, which is set out in the Limitations Act. Under the law, the time you have to sue may run out. Check the time limits for your type of case. If you aren’t sure about whether you are still in time to make a claim, talk to a lawyer or paralegal.

Can you take days off at work to file your claim, deliver documents, and attend in court for a trial? Are you willing to spend hours and hours for:

  • researching all guides on filing your claim;
  • researching all applicable Small Claims Court procedures and steps;
  • reading legislation on-line, for example the Limitations Act?
  1. Consider Other Options to Resolve the Issue

To keep your costs low, you might want to try to reach an agreement out of court. This is called settlement. You may consider mediation, which is a less formal method of resolving a dispute through a neutral third party. Mediation can be less time-consuming, more flexible, and less expensive than proceeding in court. It can also help you find your own solution to the dispute and preserve your relationship with the person/business.

What to consider before going to Small Claims Court

  1. Do You Need Legal Help?

You don’t need a lawyer to go to Small Claims Court, but hiring a paralegal or lawyer can:

  • Help you complete paperwork correctly.
  • Improve your chances of winning.
  • Assist in negotiating a settlement.

Tip: If your case is complicated (e.g., involving legal defenses or counterclaims), legal advice is highly recommended.

Final Decision: Should You Sue?

You Should Proceed If:

  • You have a valid, provable claim.
  • The amount is $35,000 or less.
  • You have tried negotiation but failed.
  • The defendant can be found and is likely to pay.
  • You are willing to go through the legal process.

You May Reconsider If:

  • Your case is weak or difficult to prove.
  • The defendant cannot be found or is unlikely to pay.
  • The costs of suing outweigh the potential recovery.
  • A better alternative exists (e.g., mediation, consumer protection complaints).

Decided to Go? Then Get Prepared!

You should prepare your case as thoroughly as you can.

Think of what the defendant will say and what evidence they could bring to Small Claims Court. It is also a good idea to go to the court where your claim will be heard and watch a couple of small claims court cases so you will know what will be required of you.

Be neat while filling in forms in small claims court.

These are court documents. All court forms must be typed, handwritten or printed legibly. It may cause delays if your forms cannot be read. Forms are available at court offices and at the following website: www.ontariocourtforms.on.ca

Count days for timelines according to the Rules of the Small Claims Court:

When calculating timelines, count the days by excluding the first day and including the last day of the period; if the last day of the period of time falls on a holiday, the period ends on the next day that is not a holiday. If New Year’s Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday. If Christmas Day falls on a Saturday or Sunday the following Monday and Tuesday are holidays, and if Christmas Day falls on a Friday, the following Monday is a holiday.

Sign an affidavit. The affidavit must be signed in the presence of the person before whom it is sworn:

  • a Small Claims Court staff member who has been appointed a commissioner for taking affidavits (there is no fee for this service);
  • a lawyer who is entitled to practice law in Ontario;
  • a notary public; or
  • any other person who has been appointed a commissioner for taking affidavits in connection with court documents

If your address for service changes, you must serve written notice of the change on the court and all other parties within 7 days after the change takes place.

Going to Ontario Small Claims Court can be a great way to recover money, but it’s important to evaluate your case, potential costs, and the likelihood of success. If you’re confident in your claim, prepare well and follow court procedures to increase your chances of winning.

Guides for Small Claims Court Matters

The Ministry of the Attorney General has a series of guides to Small Claims Court procedures which are available at court offices and online.

For more details, visit the Ontario Small Claims Court website

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