The Court Process and our Fee Structure
Professional Small Claims Court Services Toronto, Ajax, Brock, Clarington, Oshawa, Pickering, Scugog, Uxbridge, Whitby, Etobicoke, Mississauga, Oakville, Brampton, Richmond Hill, King City, Whitchurch-Stouffville, Vaughan, Markham, Oak Ridges, Aurora, Newmarket and North York and surrounding areas.
The party wishing to sue is called the Plaintiff. The document used to file against the Defendant is called the Plaintiff’s Claim. This document must be filed with the court, and served on the defendant(s) within 2 years of when the action arose, so that the limitation period is not breached. All evidence being relied upon should be attached to the claim, but may be filed at a later date, well in advance of a trial.
Service of the Claim
Serving the claim is often a difficult part of the process in laying a claim. Individuals must be served personally. This requires the services of a process server. They charge fees which we pass along to you as a disbursement. Disbursements are not part of our flat fee process, as the exact costs to complete service can often only be determined once the service has been completed on your behalf.
Occasionally service can be perfected using more cost effective measures such as a courier or registered mail. This is often the case when serving corporations. Small businesses on the other hand, still often require personal service.
Defendant’s Opportunity to Respond
The Defendants served have 20 days to respond to the claim. If they fail to respond, they may be noted in Default.
To obtain a Default Judgment one of two methods are available:
On Clerk’s Order – a clerk may be able to enter a default judgment if the claim is plainly ascertained, such as unpaid invoices.
The second method to obtain a Default Judgment is by way of an Assessment Hearing. This is conducted before a Judge of the Small Claims Court. Evidence must be presented to support the claim, so that the Judge may award the amount of damages you are seeking.
If one or more of the Defendants served replies by filing a defence the court will automatically send notice of Settlement Conference. The settlement conference is a mandatory stage intended for the parties to discuss the issues and if possible reach a resolution. Representation at the settlement conference is beneficial as effective negotiation and an understanding of the laws at issue will better prepare you to achieve the best results from this opportunity to mediate. If the matter is not settled, it must be set down for trial in order to proceed.
Often, between the stages of laying a claim and setting the matter down for trial, letters of correspondence may be required, as well as additional consultations.
Trial in Small Claims Court
It is necessary to file a document called a Request to Clerk in order for the matter to be set down for trial. The trial takes between 3 and 5 months in most court locations to be scheduled. Notice is usually given within 2 and 4 weeks of the request being filed.
Preparing for trial is vital. It is important to ensure that all the witnesses you require will be able to attend the trial. Expert witnesses may need to be paid in advance of their attendance. All documents being used as evidence should be provided to the court and the Defendants well in advance. The trial file should be organized and ready to be presented. Preparing you for trial is just as important as your representative being prepared. You need to know what possible questions the Defence will ask you, and how you will respond to uphold the credibility of your evidence.
For various reasons trials may be adjourned to another date. These reasons often could be; absence of a key witness, lack of court time, evidence not served in advance, unforeseen circumstance, etc.
The party that is successful at trial is usually awarded what is referred to as ‘costs’. These costs usually include the filing fees paid by the party, a portion of the cost to prepare the documents filed, some portion of the costs of serving the claim, as well as costs towards your costs of representation fees. These costs towards representation fees are based on a percentage of the amount claimed.
When we win your judgment, you will also be entitled to pre and post-judgment interest, from the date the action arose, until the date of judgment. The post-judgment interest will continue to accrue until the total amount owing is paid. These interest rates are governed by the Courts of Justice Act, and follow the Bank of Canada rates.
Getting Paid $
Once you have your judgment, the next step is getting paid. SW Legal Services will generate a statement and provide it to the Debtor. This statement will inform them of the total balance owed to you including costs and interests. The purpose of the statement is to obtain payment arrangement from the Debtor.
If they do not pay voluntarily, post-judgment enforcement steps will then have to be taken in order to obtain funds.
Do you know where the Debtor works?
A Garnishment of their wages entitles you to 20% of their net income. You will be paid each time their employer pays them. This process is very effective in obtaining funds after judgment.
Does the Debtor own real estate?
A Writ of Seizure and Sale may be filed against the Debtor to secure your position as a creditor. It is possible to force the sale of personal property and real estate in order to satisfy a debt. It is also often wise to allow a writ to remain as a lien against a property that must be paid upon any transaction of the property.
Is the Debtor refusing to pay and you don’t know if they have money?
If the Debtor is refusing to pay, but you believe they still have a source of income, then an Examination of the Debtor must be conducted. This is a court hearing intended to examine the Debtors ability to pay you. They must provide documentation to support their financial situation, and if they assert they cannot pay, must show why. The Notice of Examination must be served personally on the Debtor. This is done by using the services of a process server.
EMAIL: INFO@SWLEGALSERVICES.CA
95 Mural St. Suite 600
Richmond Hill
Ontario, Canada
Postal Code: L4B 3G2
TEL: 905-747-3315
1504 Markham Rd
Scarborough
Ontario, Canada
Postal Code: M1B 2V9
TEL: 416-335-0546