Michael Ford (post until Oct. 31/19)
Civil Litigation

Preparing for your small claims court journey: part 2

In this second instalment of a three-part series on how to be successful in small claims court, Toronto litigator Stefan Rosenbaum discusses how to prepare for the process.

You don’t have to be a lawyer or paralegal to go to small claims court, but you should understand the process before launching your case, says Toronto litigator Stefan Rosenbaum.

Rosenbaum, an associate with Shibley Righton LLP, says participants can represent themselves in small claims court, which is an advantage for some but not all.

In part one of the series, he laid out the basics of taking your case to small claims court and whether to hire a lawyer or paralegal for the entire process or to just guide you along the way while you do all of the legwork and appear in court alone. 

The action begins when the plaintiff files a claim that outlines the issues and tells the court what they are seeking in compensation and why, explains Rosenbaum.

“Unlike Superior Court, there are no discoveries or affidavits,” he tells AdvocateDaily.com. “It’s pretty stripped down.”

The defendant then has 20 days to file a response, Rosenbaum says.

“When served with a claim, it’s best that you contact a lawyer or paralegal quickly, within one or two days, so you don’t leave it to the 19th day to show up in my office,” he says. “That causes problems.”

You’ll need to provide a list of witnesses you intend to call, though Rosenbaum generally advises against bringing in paid expert witnesses.

“In most cases, the cost of expert witnesses in small claims court isn’t worth it,” he says, adding that plaintiffs should also file their claims before the statute of limitation expires in two years.

All documents should be in digital form, and you’ll need to know the name and address of the defendant, says Rosenbaum. Then it’s a matter of serving the claim on the defendant.

The next step, says Rosenbaum, will be a settlement conference where a judge — not the one who will ultimately hear the case — brings the parties together to see if a resolution is possible.

It’s here, he says, both parties should consider the cost of a trial and the likelihood of recovery or liability.

“At this point, you should have your witness list and all your key documents as well as your story and the key issues you plan to argue,” he says. “This will save time during the conference because then you can focus on settlement discussion rather than procedural matters.”

The settlement conference is meant to be a “safe space” where all parties can say anything without fear that it will be recorded or used against them later, he says.

“It’s all confidential, and nothing you say can be brought up at trial,” Rosenbaum says. “So, if you say you’d accept $10,000 in the settlement conference, they can’t bring that up in the trial to argue the claim isn’t worth $25,000.”

At some point, it may be prudent to take an offer and move on, he says, but if there’s no resolution, the matter will be set down for trial.

“Generally, in the Greater Toronto Area at least, you’ll get a call from the court asking about your trial readiness a couple of weeks before it's set to be heard,” Rosenbaum says.

“This means that you have your list of witnesses finalized, and you will be prepared to proceed. By now, you will have given the defendant all the documents you intend to rely on and received all of theirs," he says.

"Both sides should collaborate to create a single 'book of authorities,' which lists various cases and other points of law they will refer to during the proceedings," says Rosenbaum.

At trial, the onus is on the plaintiff to tell their story and prove the defendant caused a loss, why they should be compensated, and with how much, he says. The defendant will then tell their story and bring evidence to show they aren’t liable for any loss or payment.

“If the plaintiff makes an offer to settle — let’s say for $11,000 — at least seven days before trial and the award against you is for more — say, $18,000 — then you can claim double the standard legal costs of 15 per cent of the claim,” Rosenbaum says.

If there are no offers, then the loser pays the legal costs, up to 15 per cent of the claim.

“That’s why it’s always important to make a reasonable offer to settle,” he says.

There is an appeal route through Divisional Court, but Rosenbaum says it gets very expensive and out of proportion with the $25,000 cap on small claims court cases, even when costs are lumped in.

“Costs to go to Divisional Court are probably a minimum of $10,000,” he says. “And if you lose, you pay at least 60 per cent of the other side’s legal fees.”

Stay tuned for part three, where he will explain how to collect on a judgment.

To read part one, where he discusses how to be successful in small claims court, click here.

To Read More Stefan Rosenbaum Posts Click Here
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