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Filing a Small Claims Suit
Small Claims Solutions
No matter how careful we are, occasionally everyone gets taken by a deadbeat or stuck with shoddy merchandise or products. Invoices go unpaid. Collection letters and phone calls are a waste of time. Sometimes people just won't pay your bill. So what can you do?
How to take someone to small claims court: Sometimes, the only way to collect what is owing you is to sue. So when all else fails, don't just write off that debt, take them to small claims court. But first make sure they have assets or an income. There is no point suing if you cannot collect.
Small Claims Court, with a claims limit of up to $25,000, (limit varies by province) is an easily accessible self-help remedy designed to make it worthwhile for individuals and small business to pursue accounts without a lawyer. It is important that you do your homework and learn how best to use this valuable tool.
WHAT IS SMALL CLAIMS COURT ABOUT?
Generally, Small Claims Courts in Canada provide a way for the average person to resolve simple disputes concerning money or property with a neighbour, a merchant and even a customer for amounts up to $25,000, (varies in each province) without having to hire a lawyer. They are quicker and cheaper than regular courts and are run fairly informally.
However no court is quick. It will take you the better part of a year to go through the entire Small Claims Court process and have your trial and get judgment. Then you still have to try to collect. Getting a judgment is fairly easy. Collecting is an entirely different story.
SMALL CLAIMS COURT ARE INFORMAL,
BUT THEY ARE STILL COURTS.
Never forget that you are in court for a minute. Be respectful even if you think it is not deserved. Judges are often temperamental. Try to be calm, courteous and avoid calling the other party names. Stick to your facts and you will go a long way to impress the judge.
DO YOUR HOMEWORK
In order to successfully sue in Small Claims Court in your province, you must do your homework. You need to look at the rules concerning procedures for filing claims, defences, and counterclaims. You must meet the stipulated time limits, obey the rules for service and proof of service of documents. You will need to know a little about default judgments and proceedings. Usually there will be a pre-trial conference which may lead to an offer to settle. A rejected offer to settle will have cost consequences at trial.
You need to have all your evidence available at trial. Read up on trial procedures (watch that man hating, megalomaniac, Judge Judy for tips). You will also need some understanding of what costs you can ask for, the reimbursement of costs, and the enforcement of judgments and orders.
Small claims trials are adversarial in nature which means that there will be a winner and a loser. Judges usually permit very informal procedures and take an active role in questioning the parties to get to the facts. Judgments are awarded on the balance of probabilities.
THE SETTLEMENT CONFERENCE
All cases hold a settlement conference or a pre-trial hearing.
Both sides meet behind-closed-doors with a deputy-judge or a mediator.
The parties try to settle with the assistance of the judge who will hear both positions, give each side a reality check on the merits of their cases.
It is well worth settling to avoid a trial at a later date, Be realistic. Do not throw good money after bad.
CAN YOU PROVE YOUR CLAIM?
HOW TO LOSE IN SMALL CLAIMS COURT:
Follow these simple instructions and you will get your head handed to you by an annoyed and impatient Small Claims Court judge.
Show up unwashed, unshaved and in dirty work clothes or showing too much cleavage looking like a bum or a harlot.
Do not have your important documents with you. Leave receipts and bills of sale or warranties and other essential original documents at home, and tell the judge you can get them later.
Interrupt and get into a shouting match with the other party when they are presenting their case to the court.
Don't bring your witnesses to court. Try and tell the judge what they told you.
Be unprepared. Stumble over your testimony and make up details on the spot which will impress the judge.
Text or make cell calls while you are waiting your hearing
Bring food or drink into the court room, or chew gum
To Sue or Not to Sue that is the question
ABOUT THE JUDGE'S DECISION
When the judge is satisfied s/he has heard all that is necessary, s/he will either render a decision right then and there or reserve the decision to a later date. If the decision is reserved it means the judge wants to think about the decision and you will get a notice informing you if you won or lost in the mail in the near future.
STUDY JUDGE JUDY:
As repulsive as she is, Judge Judy provides a good example of what to expect in any Small Claims Court, although few judges are as sexist, obnoxious, arrogant or rude as that megalomaniac. Perhaps all that plastic surgery has affected her mind too. Watch several of her shows. Watch how the witnesses present their evidence and what happens to those who are not prepared or talk over the other party.
WHAT CAN I SUE FOR?
Usually you can sue for damages in auto accidents, property damage, some landlord tenant disputes, broken verbal or written contracts, bad cheques, unpaid wages, or the collection of personal debts. This is a partial list and rules vary by province.
HOW MUCH TO SUE FOR?
These are set by the province in which you are suing. The highest amount you can sue for in Small Claims Court varies from province to province. Alberta is currently $50,000.00. Since when is $50.000.00 a small claim?
WHERE TO SUE?
You must sue in the court in the jurisdiction of the person being sued. If the party you are suing is located in Kingston and you are in Montreal, you must sue in Kingston
WHO CAN SUE?
Adults can sue any other adult and/or any business in Small Claims Court. If children caused the problem you sue their parents.
Any individual, business or corporation may sue in Small Claims Court for the recovery of money only.
WILL THE COURTS HELP ME?
The clerks in the Small Claims Courts offices will not tell you HOW to prepare your case or provide legal help. If they are not too busy, they may assist you in correctly filling out the forms, but don't count on it.
You will have to get their information booklets and forms and actually read them and follow the instructions to the letter or your case may be tossed out.
HOW TO IMPROVE YOUR CHANCES OF WINNING
Dress up. Wear conservative, clean clothing in good repair. You do not need to wear expensive clothing, but you are in court. Show the proper respect and you will get respect. Dress your best. Be well groomed. Clean your finger nails. Get rid of the gigantic sluttish press on nails. Get rid of the piercings, the purple hair and the leather, biker look or the grubby look. Dress as if you are going to church. (is it politically correct to say "church?")
Prepare in advance. Consider writing down all the points you want to make so they are clear and in a logical order. You will not be permitted to read the list, but you can use it as a guide to ensure you cover everything.
Bring all your evidence with you. Gather all the documents relevant to your case, including cheques, invoices, receipts, photographs, expert reports, contracts, warranties, broken objects or whatever is needed to show your losses and establish what the loss is worth in dollars as best you can.
If you wish witnesses to be heard, bring them with you. Do not coach them or give them memorized speeches. Simply ask them to tell what they know in their own words about the matter. The judge can and probably will question them and you.
Take your time. Speak clearly, slowly and be direct. Tell the court what damages you have suffered and what they have cost you. Be prepared to prove the damages with receipts, estimates, photos or other proof.