Procedurals Tips for Small Claims Court Actions (2008)
This article is written for those interested in commencing Small Claims Court actions.
Having spent enough time in that court and watching what goes on, I can say without hesitation that most litigants are unrepresented and have not sought a legal opinion on their case. I believe that people think they are saving money by not hiring a lawyer or agent to provide an opinion. I disagree vehemently with that premise and will explain why.
Some cases started in Small Claims Court fail because the law does not provide any relief in the circumstances. Sometimes, there is a legitimate claim but no evidence to support it. At times, plaintiffs sue the wrong people or companies, to name just a few difficulties. Despite what you see on television, prosecuting a claim even in Small Claims Court, is not easy. Lay people do not know the law, procedure or rules of evidence.
I highly recommend that before you start an action in Small Claims Court, you obtain a legal opinion from a lawyer. Most lawyers will meet with you and review your situation for a consultation fee. Even if you have to pay $500 for such a consultation, this could in the end save you much more in court costs and your time. You know the saying…penny wise, pound foolish.
If the lawyer you consult believes that you have a legitimate claim, you have several options as to how to proceed. You can retain that lawyer to act for you throughout the matter or you can retain the lawyer to draft the statement of claim but not act for you in the proceeding. I have done this a few times for clients of mine with cases worth less than $10,000. A properly drafted statement of claim is the road map that assists the Deputy Judge in knowing what the case is about and how you plan on proving it. The statement of claim will assist you in knowing what evidence you will need at trial. When you speak with a lawyer, ask him or her, which documents you will need at trial. Not every document you have in your file is necessary to prove your case. Most unrepresented litigants adduce far too many documents because they do not understand the issues and hence the documents needed to respond to the issues.
If you intend on using documents at your trial, there are two basic principles you should remember. Firstly, all the documents you intend to rely upon at trial should be bound in a document brief with tabs and a spine. The entire document brief can then served on the opposing side no later than 14 days before trial. At trial, you can submit into evidence the document brief as “Exhibit 1”. What you should absolutely not do, is go into the witness box with a file of loose papers not having thought about your documents beforehand and then start fishing around for them as you give your testimony. This does not leave a good impression on the Deputy Judge. I have seen many judges become very frustrated with this behavior because it is a waste of the court’s time. The court time in this province is too hard to come by and is not there to be squandered by the public.
If your claim involves unpaid rent for example and you have a series of NSF cheques that you intend to submit into evidence, make photocopies of your cheques. The photocopies along with the tenancy agreement if there is one, should go into your document brief. In addition to that, set out on one piece of paper for the judge’s use, the cheque numbers and the amount of each cheque that went NSF. The amount column should be tallied at the bottom of it so that there is no question as to how much you are claiming for at trial. Don’t make the judge take out a calculator and do the math for you.
At any level of court, the litigants or their representatives must understand that their primary task is to educate the judge. While it is true that judges have a command of the law, they will not do your job for you. You must present your evidence and your damages in an organized manner so that the judge does not have to work at figuring out your case. The judge’s role is to make a finding of fact as to liability and damages. You should be doing everything you can to make the judge’s job easier so that he or she can find in your favor.
If you need advice on a matter that you are intending to take to Small Claims Court, please contact me.
