What to do if you are sued in Small Claims Court
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SMALL CLAIMS FORMS RELATED TO THIS SUBJECT
- Reply (SCR Form 2)
- Application to the Registrar (SCR Form 16)
- Statement of Finances
- Application to a Judge (SCR Form 17)
DEFEND OR NOT – THAT IS THE QUESTION
If you are being sued in Small Claims Court, you have many choices. You could:
- Admit part of the claim or all of the claim.
- Negotiate a settlement.
- Defend the claim (in which case you must file a Reply within 14 days of being served with the Notice of Claim).
- File a Counterclaim.
- File a claim against someone who is really responsible for what the Claimant is suing for. This is done by filing a Third Party Notice.
Each of these options are more fully described below.
ADMIT THE WHOLE CLAIM
You could admit the full amount of money demanded by the Claimant. You could then pay the money directly to the Claimant. If you do, be sure to get a receipt. Also, be sure to write to the Small Claims Court to say that the claim has been paid in full.
If you do not want to deal directly with the Claimant you could go to the Small Claims Court where the lawsuit was started and pay the money to the registry staff. They will then forward the money to the Claimant. The registry will take cash. It will also take certified cheques or money orders may payable to the Minister of Finance.
IF YOU CANNOT AFFORD TO PAY THE WHOLE CLAIM
If you cannot afford to pay the whole amount claimed right away, you could request the court to approve a payment schedule. To do this you should use the Reply form that you received with the Notice of Claim or click here to obtain a blank Reply form. Fill in your name and address and the name and address of the Claimant. Then fill in the part of the form called “Request for Payment Schedule to be set by the Court.” After the words “I could make the following payments” you should write the amount you propose to pay, such as “$50.00 per month starting on December 1, 2000.” Click here to view a sample of a Reply form filled in to request a payment schedule.
The Reply should then be filed at the Small Claims Court. The court will set a date for a Payment Hearing where your proposed payment schedule can be considered by a Judge and the Claimant.
It may be possible to come to an agreement with the Claimant for less than the Claimant is claiming or indeed is owed. This is because the Claimant’s claim may be difficult to prove, or because the Claimant may want to avoid the hassle of going to Court, or because the Claimant may want to accept an immediate payment now rather than waiting until trial. If your negotiations are going to take longer than 14 days from the day you were served the Notice of Claim you should file a Reply to prevent the Claimant from obtaining a Default Order against you. A Default Order allows the Claimant to win the lawsuit without going to trial.
If you reach a settlement you may prepare a Consent Order which will set out the terms of your agreement. The Consent Order should be signed by both parties.
Once the Consent Order form is signed it should be filed at the Court Registry.
Usually the place to start is to determine whether there is any legal basis upon which to defend the claim. To find out you may need legal advice. You may obtain advice from:
- A lawyer in private practice;
- A lawyer you are referred to through the Lawyer Referral Service (where you can speak to a lawyer for up to 30 minutes for a fee of $25);
- If you are eligible, from a Legal Services Society office. Click here for a list of Legal Services Society offices.
If you have received a Small Claims Court Notice of Claim and have decided to defend, you must act quickly. If you do not, the person suing you can obtain a Default Order against you without a trial.
The cost for filing a Reply is $25.00. But if you cannot afford to pay the $25.00, you may be able to get the Court to allow you to file a Reply without paying $25.00. The way to do this is described below.
WHAT IS A REPLY?
A Reply tells the Court that you intend to defend the lawsuit. It must also tell the Court what the basis for your defence is.
PREPARING A REPLY
Click here to view a sample of a completed Reply form which sets out a defence.
To complete a Reply form insert:
- The Court File No. which appears in the upper right hand corner of the Notice of Claim.
- The location of the Registry where the lawsuit was begun.
- The name and address of the Claimant as it appears on the Notice of Claim.
- Your name as it appears on the Notice of Claim.
- The grounds on which you are defending the lawsuit. Rule 3(1)(d) of the Small Claims Court Rules requires you to list the reasons why you are opposing the claim. This probably means that you cannot merely fill out a Reply by saying “I deny the claim” or “I don’t owe the money.”
TWO TYPES OF REASONS
There are two types of reasons that you could list. The first is, that the Claimant has the facts wrong. For example, the Claimant may be saying you caused an accident by going through a stop sign. In your Reply you might say that you did stop at the stop sign and the accident was caused by the Claimant who was speeding and not paying attention.
A second type of reason for opposing a claim is that the law is on your side. If you seek the advice of a lawyer as suggested above, the lawyer may tell you the legal basis on which you can oppose a claim.
For example, suppose you are being sued because you signed an IOU when you bought a membership in a fitness club. Suppose you found out that the club did not have all the services it promised and you want to end your contract. And finally, suppose the fitness club is now suing you on your IOU. If the IOU did not contain the words “consumer purchase” as required by the Bills of Exchange Act, the IOU might be void (that is, it might not be used as a basis to prove a debt). So in your Reply you might say:
- “The IOU given to the Claimant was for a consumer transaction and did not contain the words ‘Consumer Purchase.'”
- “According to s. 190 of the Bills of Exchange Act, the IOU is void.”
- “The Claimant promised that its fitness club would have 10 exercise machines and it has none. I signed the contract because I wanted to use exercise machines and I told the Claimant that before I signed the contract.”
WHAT IF YOU DO NOT GIVE REASONS FOR OPPOSING THE CLAIM
The Small Claims Court Rules are silent about what happens if you do not give reasons for opposing the claim. However, there are a number of things that a Claimant might try to do. These include:
- The Claimant might make an application to the Court for a Default Order. Factsheet 7 describes the procedure which a Claimant can use to attempt to obtain an Order to win the case without going to trial when a Defendant fails to file a Reply. Since the rules specifically state that a Reply must include reasons, a Claimant might successfully argue that a Defendant who filed a Reply without reasons failed to file a valid Reply. If successful, a Claimant might then ask for a Default Order.
- The Claimant might ask a Judge to dismiss the Reply at a Settlement Conference. Under Rule 7(14)(i) a Judge, after reviewing the filed documents and discussing the matter with the parties, may find there is no reasonable defence, and may dismiss the claim.
- Since the policy behind making a Defendant state reasons for opposing the claim is to narrow the issues in dispute when it comes to trial, a Claimant might object to a Defendant raising any defences at trial which were not expressly stated in the Reply. For example, suppose a Claimant is suing a Defendant for hitting him. The Defendant in her Reply merely denies she hit the Claimant. She does not go on to say that if she did hit the Claimant, it was in self-defence. In this case when it comes to trial the Defendant may be stopped from giving evidence of self-defence. She may therefore, lose the case if a Judge merely finds she hit the Claimant.
WHAT TO DO IF YOU CANNOT AFFORD THE $25.00 FILING FEE
As mentioned above you must pay $25.00 to file a Reply. However, the Small Claims Rules say that the Registrar can make an order exempting you from paying Court fees. But you must meet the test. The test is that you “cannot afford the fee payable.” To apply to the Registrar you must:
- Complete an Application to the Registrar
- Complete a Statement of Income and Expenses
- File both forms at the Registry
Click here to view a sample of a completed Application to the Registrar.
Click here to obtain a blank Application to the Registrar.
Click here to obtain a Statement of Finances in support of a fee exemption.
The key to succeeding is to accurately show your income, expenses, assets and debts so the Registrar can decide that you cannot afford to pay.
It does not cost anything to make an application to be exempt from paying fees. So if you think you cannot afford to pay, you have nothing to lose by trying.
APPEALING A REGISTRAR’S DECISION
If you do not succeed and you think the Registrar was wrong, you can appeal to a Small Claims Judge. To appeal you must:
- Fill in an Application to a Judge. Click here to obtain a copy of an Application to a Judge.
- File the Application to a Judge at the Registry.
You will then be given a date when a Judge will consider your appeal.
CHANGING YOUR REPLY
If you want to change your Reply, you can. Suppose you get legal advice after filing your Reply and you learn of an additional defence. Rule 8 of the Small Claims Rules tells you how to change your Reply. If a Settlement Conference has not yet occurred, all you have to do is prepare a new Reply including the changes. The changes must be:
- initialed; and
Click here to view an example of a changed Reply form.
The fourth possible response to a Notice of Claim is to file a Counterclaim. A Counterclaim can be made when the Claimant owes a Defendant money. The Claimant could owe the Defendant money for something related to the Claimant’s claim. For example, let’s suppose the Claimant is suing for injuries from a motor vehicle accident that the Claimant says the Defendant caused. The Defendant could Counterclaim against the Claimant for injuries to the Defendant that the Defendant says the Claimant caused.
A Defendant can also Counterclaim for money owed for a different matter. For example, let’s suppose a Claimant sued Defendant for the return of a guitar worth $500. The Defendant could in the same lawsuit make a Counterclaim against the Claimant for $1,000 lent by the Defendant to the Claimant that the Claimant owes and has failed to repay.
If a Counterclaim is for more than $25,000 the Defendant can Counterclaim in Small Claims Court or can start a lawsuit in Supreme Court. If the Defendant Counterclaims in Small Claims Court the amount (except or interest) over $25,000 must be abandoned.
A Counterclaim is made by filling in the Counterclaim section of the Reply form. The Counterclaim should contain enough facts so that a Judge will understand what the claim is for. It should be written in clear, simple English. Each important point can be numbered and set out in a separate sentence.
The Counterclaim should say how much money is being claimed. If the Counterclaim is for more than $25,000 and the excess (except for interest) is being abandoned, write on the Counterclaim section of the Reply form words like “Except for interest and court costs, I abandon my claim against the Claimant which is in excess of $25,000.”
Click here to view a sample of a completed Counterclaim section of a Reply form.
There is no cost for filing a Counterclaim if it is included with the filing of a Reply. But if you decide to file a Counterclaim after you file a Reply, you will have to pay $150 if the Counterclaim is for an amount of $3000 or less, and $156 if the Counterclaim is for more than $3000.
FILE A THIRD PARTY NOTICE
If you believe someone else is really responsible for what is being claimed by the Claimant, you should file a Reply. You should also make a claim against the person really responsible by filling in and filing a Third Party Notice. For more information about Third Party Notice see Factsheet 9 called “Third Party Procedure.”
Prepared by Glenn Gallins
Revised March 2008, links checked 2019
Funded by the PLE Program of the Legal Services Society