Thursday, January 7, 2016


The first - and perhaps most important - decision anyone is faced with when contemplating pursuing a civil claim against someone else is: which court should I be proceeding before? If life and the law were simple, there would only be one court that would deal with all problems. 

But unfortunately as most of us have discovered by adulthood, life is never as simple as our younger selves hoped it would be. And those who need to brave the court system likewise soon discover that there are a complex multiplicity of courts and tribunals out there, any one of which might be "the place" you're supposed to go to seek a solution to your particular legal problem. Showing up at the wrong one can be like arriving at the wrong birthday party, where you're told there's no cake for the likes of you!

Although Ontario also has criminal and family courts in addition to a plethora of administrative tribunals, for the purposes of any "civil" claim the sole choices are between the Small Claims Court and the Superior Court of Justice (unless the claim is one of the few going to the Federal Court). Confusingly, the Small Claims Court is actually an arm of the Superior Court, but where "Deputy Judges" preside over a less complex procedure involving less risk for the losers and also lesser rewards for the winners. 

The key things to know about the Small Claims Court are that:

1. You can only demand damages up to $25,000. You can still bring a claim worth potentially much more than that before the Small Claims Court, but you'll be required to "abandon" the excess. 

2. You can only demand the return of property up to a value of $25,0000. 

3. You can't demand any other kind of remedy, like declaratory or injunctive relief, meaning you can't ask the court to force another person to do or not do something, or declare that something is or is not the case - like that a law is unconstitutional. 

4. You can only obtain "costs" (sometimes awarded to the winning party) of 15% of the value of all claims pending before the court, even if you spent much more on legal fees. 

5. Your legal fees charged by a lawyer will be much, much cheaper in Small Claims Court than in the Superior Court of Justice, because of the simpler and quicker procedure involved. 

What this means to choosing between civil courts is that if you're definitely seeking a remedy other than money or property, you've got no choice - you're going to the Superior Court of Justice. If you're seeking money or property worth less than $25,000, then again the choice is a no brainer - you're going to the Small Claims Court. 

The zone of claims where the choice gets tricky is for those worth a bit (though not a massive amount) over $25,000. My rule of thumb is that any claim worth under $40,000 should choose to go to the Small Claims Court, since you're probably going to spend at least another $15,000 in legal fees going to the Superior Court of Justice. Even claims up to $50,000 might wish to consider cutting their numbers in half to go to Small Claims. 

Over $50,000, and Superior Court of Justice is likely the way to go. If you claim $100,000 or less there, you're entitled to take advantage of what's known as a "simplified procedure" - though it's still a lot more costly and time consuming than Small Claims Court procedure. 

But before you settle on the Superior Court of Justice route for what you're convinced is your very valuable claim, get some legal advice about claim valuation. You might very legitimately believe that you've suffered a great injustice at the hands of the plaintiff, but the burden rests solely on you as plaintiff to present proof on a balance of probability of quantification of damages. This means proof of what you've lost, and what is a fair amount payable by the defendant to "make you whole" again. 

Figuring out damages numbers is easiest when you're fighting over a thing - like a vehicle - with a well known value. Damages are more difficult to quantify for less well agreed upon numbers, like the value of a broken arm. Damages can become very difficult to put a number on when they are intangible - like damage to reputation due to defamation. 

You definitely don't want to "win" after a lengthy and expensive trial, only to be awarded $1 - or any figure that is less than the amounts you've spent on pursuing the case. 


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