The default question in determining which court to start a claim in is often simply – what amount is being claimed?
The Small Claims Court deals with claims for $35,000.00 and under. Claims for damages between $35,000.00 - $100,000.00 can be commenced in the Ontario Superior Court of Justice under the Rules of Simplified Procedure, and claims $200,000.00 and above are commenced in the Ontario Superior Court of Justice.1
However, actually determining which court to commence a claim in can depend on a myriad of considerations and can have significant consequences to the claimant. Choosing which court to commence a claim can drastically affect the amount spent on legal fees, the time involved in litigating a matter, and the required steps to be taken under the applicable rules.
The process to be followed varies depending on whether a claim is commenced in the Small Claims Court, under the Rules of Simplified Procedure or under the regular Superior Court of Justice process. Generally speaking, the process becomes lengthier and more costly going from Small Claims to Simplified Procedure to the regular Superior Court process. It is important, at the outset, to carefully assess which court and under which process to commence a claim for many reasons, including avoiding incurring unnecessary legal fees.
All too often self-represented or underrepresented claimants will only become aware that they have commenced a claim in the wrong court when it may be too late to correct this error.
As a junior litigator in our civil litigation department, I often deal with our clients with claims on the ‘lower’ end of the spectrum. Often these are claims with damages between $15,000 - $100,000.00.
One of the first discussions we have with clients with these types of claims (particularly claims around the $30,000-$40,000.00 mark) is which court to commence the claim in. The question becomes whether we commence a claim in Superior Court under the Rules of Simplified Procedure, or do we bring a claim in Small Claims and abandon any amount over the $35,000.00 jurisdictional limit.
Bringing a claim in the Small Claims Court can be beneficial for a few reasons, namely: the process can be more expedient, less costly, often involves fewer procedural steps, and the rules of evidence tend to be more relaxed.
However, one of the major downfalls of bringing a claim in Small Claims Court is the limit on cost awards for legal fees. Section 29 of the Courts of Justice Act R.S.O. 1990, c. C. 43 limits the cost award in Small Claims Court to 15% of the amount claimed (although the court can use its discretion to award a higher amount in certain circumstances). The legal fees involved in starting or defending a claim in Small Claims Court can be substantial compared to the amount claimed. Although parties almost never recover all their legal fees regardless of which court their claim is in, this limit on costs often means that parties are recovering a very small portion of the legal fees they have spent in this process. This factor can be a major consideration in choosing which court to commence a claim in.
Further, there are no discovery obligations in Small Claims Court. Therefore, the parties are not granted the procedural right or opportunity (compared to Superior Court) to inspect the other party’s relevant documents. This factor often plays into the strategic decision of choosing Superior Court over Small Claims Court, or vice versa, depending on the goal of the litigant.
Where a claim is for somewhere around the $40,000.00 mark we also want to discuss what portion of those damages the claimant is going to be able to actually prove in court. A claim may be for $40,000.00 but if $20,000.00 of those damages are too remote or simply without the proper evidence to back them up, then commencing a claim under the Rules of Simplified Procedure can have significant cost consequences for the plaintiff.
In the 2013 Ontario Superior Court decision May v. Hutchinson, 2013 ONSC 7712 (CanLII) the court refused to allow the plaintiff to transfer her claim from Superior Court to the Small Claims Court.
In May, the plaintiff had brought a claim under the Rules of Simplified Procedure for $100,000.00 for damages resulting from a car accident.
Following the car accident, the plaintiff suffered from two separate workplace accidents. As the claim for the car accident progressed, there was concern that a portion of her ongoing pain and suffering may be attributable to the workplace accidents rather than the car accident.
As a result, the plaintiff brought a motion to transfer the claim from Superior Court to Small Claims Court to claim for an amount of $25,000.00 or under. At the time that the motion was brought, the parties had already spent a great deal of time and money proceeding with steps that would not have been required had the action been commenced in Small Claims Court (including exchanging Affidavits of Documents and attending examinations for discovery).
The court dismissed the plaintiff’s motion to transfer the claim to Small Claims Court and accepted the defendant’s argument that he had conducted his defence and implemented his litigation strategy on the basis that the claim had been commenced in Superior Court to be tried by a jury.
The plaintiff’s concern in having the claim continue in Superior Court would be that if she was unsuccessful in obtaining damages above $25,000.00 (the Small Claims limit at the time),), there would likely be significant cost consequences awarded against her for not starting the claim in Small Claims Court initially.
The decision in May provides an eye-opening lesson to litigants and enforces the importance of properly preparing and collecting the necessary information and documentation at the beginning of the process to substantiate any amount claimed. It also enforces the need to thoroughly review the costs and benefits of choosing one court over the other.
Another question relevant to determining which court to commence a claim in is: ‘what is the goal or objective of the plaintiff?’ Usually, the answer to this question is that the plaintiff wants to recover money or property they believe they are entitled to.
However, occasionally what the plaintiff is looking for is an equitable remedy. A common equitable remedy that a party may seek is a declaration from the court that they are not liable to a party for an alleged debt. This often happens when a creditor claims that there are monies owing but hasn’t taken any legal action (i.e. commenced a claim) to collect a debt. In these circumstances, the debtor is often concerned that the creditor can affect his or her credit score or will send a collections agency after them. Where this happens, the debtor is not given a real opportunity to dispute these charges. One of the possible forms of recourse for the debtor in these situations is to bring an action or application for a declaration that the debtor is not liable to the creditor for this debt.
Sometimes the amount impacting a credit rating can be as low as $1.00. This is an extreme example, but it can happen.
Where the debtor is seeking this type of declaratory relief, the debtor must proceed by way of Superior Court action or application. This is due to the fact that the Small Claims Court does not have the jurisdiction to grant a party this type of relief (see Sections 96 and 97, Courts of Justice Act, R.S.O. 1990, c. C.43).
This can mean that the debtor is bringing an application or action through Superior Court to dispute a debt of an amount that is less than $35,000.00. Often, it is not proportionate for the party to spend the time and money bringing an action or application in Superior Court to dispute what may be a relatively small amount.
More and more often we are seeing claimants walking through the door looking for legal advice regarding claims for amounts in the ‘ambiguous range’ of $15,000.00-$45,000.00.
While it may seem counterintuitive to the desire to avoid unnecessarily increasing legal fees, it is important to spend the time considering the costs, benefits, and strategic concerns of pursuing a claim in Small Claims Court or Superior Court and the relief that can be obtained in either jurisdiction.
1 1 The maximum monetary claim permitted in the Small Claims Court was raised from $25,000.00 to $35,000.00 and the maximum monetary claim permitted in the Ontario Superior Court of Justice – Rules of Simplified Procedure was raised from $100,000.00 to $200,000.00 effective January 1, 2020.