Updated: Nov 1, 2021
There are several misconceptions that exist when it comes to the Small Claims Court
litigation, as this court is not that small how it looks. It has a monetary jurisdiction to consider
and to resolve matters pertaining to the property recovery or payment of no more than $35,000.
Court also has a limit on the amount of legal costs that might be awarded. All these
considerations together left no space for hiring lawyers and most people prefer to start litigation on their own.
In most cases, participants believe that their case is clear-cut, and the trial will be a
formality they need to go through to receive a judgement. The forms required are simple and there is plenty of information available on how to start the action. However, the reality reveals only at trial when it is too late to change something. The bar for introducing new evidence in a trial, limitations imposed on the examinations in chief, the necessity to claim the relief sought clearly, the necessity to prove their case by evidence instead of words are only some problems most litigants are facing.
Paralegals are designed to support litigants through the small claims process. It is
recommended to use a paralegal to draft your claim, defence or motion. They may help you to structure your pleading correctly, outlining the cause of action or relying on defence in a clear and precise language that is understandable for the Judge. For a relatively small fee, your pleadings or motion will be drafted properly, whether you will be claiming in contract or in tort.
A paralegal may provide you with valuable legal advice, as in many cases the success
depends on how you structure your pleadings or how do you plan your litigation. In our firm, we are spending a lot of time on strategy and planning as we want our clients to succeed.
I would like to show you this simple and very common situation, so you can understand
what this is all about. Let’s say we have a client who is willing to claim from the ex-contractor
money he paid to another contractor to remediate the deficiency in work. Ex-contractor is a
corporation with the only person, let’s say, Joe, who is an owner and a director of the corporation and a person who actually performed a work. It was a Joe who talk to the client, who sent an Invoice, who actually performed work and who refused to fix the problem. The client always dealt with Joe and did not pay attention that he got an Invoice from Corporation. The payment was done in cash or by e-transfer. So, how to claim in this case? And more important, how to claim?
Client decided to proceed on his own. He went to the court, took Plaintiff’s claim form,
and fill it up. Small claims court forms are only asking some simple questions like who you are, who is a defendant, what happens, when and where. Client fill out this simple form and put Joe as a defendant. He also stated that he had a contract that has an express or implied term of the contract that the work will be done in good workmanship, in fact, it was not and therefore he had breached the contract and damages were asked to be awarded. At trial, Joe will say that he never contracted with the client, and it was a corporation who shall bear the liability and the claim shall fail. Such mistake happens often, and it is sad to see plaintiff fail due to the technicality with an otherwise valid claim.
It might be a case when the same person will advance a claim against both, Joe and his
corporation, and will claim the same way as it is shown above. In this case, Joe will say the same thing and will be acquitted. Plaintiff will receive his judgement against Corporation, which might have no assets at all, and plus Joe will be entitled to his legal costs, as technically he won his case in his personal capacity. So, what is the point of winning a case and still having to pay Defendant for his legal costs the amount that is considerably more than the client may pay for proper legal advice?
The client also may file a negligence claim, if there are sufficient grounds, and the breach
of contract against both, Joe and Corporation and still lose due to lack of evidence or being
unable to prove some elements of the claim. However, in the client's situation, this way of structuring is most likely to be successful not only in terms of winning a case but also in terms of holding Joe personally liable and securing the future recovery.
What would be reasonable in your case? Which strategies are available for you? You may
ask right here. Our Paralegals serve Toronto and GTA and are always available for a quick chat.