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I Have Been Sued in Small Claims Court. What Can I Do?

Maybe you run a small business. Maybe you sold your house and someone is claiming that it is damaged. Maybe someone claims that you owe them money. Maybe you have no idea what the claim is. In any event, someone is suing you in Small Claims Court, and you're not sure where to start.

Even though Small Claims court is designed for non-lawyers, being served with legal papers can be a frightening experience if you are unfamiliar with the process. In this article, I hope to shed a little bit of light on what your experience might be if you are named as a Defendant in a Small Claims lawsuit.

First, you should ensure that you have been named correctly on the Notice of Claim. While a minor typo is not likely to jeopardize a lawsuit, naming you personally when you own an incorporated company that actually was involved in the matter might be more significant.

No matter what, once you have been served, you have 14 days (from when you were served, not from the date stamped on the claim) to file a Reply at the court registry shown on the Notice of Claim. This is extremely important. If you fail to do so, the Claimant can seek a default judgment against you, which entitles them to the entire claim. Although it is possible to overturn a default judgment, this must be done by applying to a judge, and having a good reason as to why you didn't file a Reply.

Your Reply should respond, concisely but completely, to the claims against you. If you agree with part, but not all, of the claim, the Reply provides a section to fill out setting out exactly what you agree with.

You do not need to serve the Reply on the Claimant; the court will do that for you. Usually around this time the court will also give you a date for a Settlement Conference. This date might not be for three or more months in the future, which will give you time to prepare any relevant documents, which must be provided to the other party.

A Settlement Conference is not a trial. It is more like a mediation held in front of a judge. If you go to trial, you will have a different judge. At the Settlement Conference, the judge should ask you questions about the dispute in the hopes of steering all parties towards settling the matter without going to trial. Some, but certainly not all, disputes are solved at this stage. If you make an offer in a Settlement Conference, the other party cannot use that against you at trial. For instance, if you are sued for $10,000, and you offer $5,000 to settle the matter, the Claimant cannot tell this to the judge at trial.

If your matter is not settled, the judge will order that a time be set for trial of the matter. Occasionally, you may have to return to the courthouse another day for a Pre-Trial Conference. There, you will be asked about how many witnesses you will call, and how long you expect the trial to be. A judge might also make orders setting deadlines for when you have to provide the other parties with your documents (if you haven't already) and any legal cases that you might rely on for precedent.

A Small Claims trial is structured very similarly to a Supreme Court trial. First, the Claimant will have an opportunity to bring the evidence before the judge supporting their case. This involves examining witnesses, introducing exhibits, and perhaps testifying themselves. Once this is done, you will have the opportunity to bring your own case in defence. The judge will likely ask both sides a number of questions. Once you have presented your evidence, each side will get a chance to provide closing submissions, which is where you recap the main points of your evidence, explain the law, and argue as to why the law supports your position. The judge will either give a decision immediately, or else reserve judgment, which means that they will take time to consider the facts and law and give judgment at a later date.

Should I get a lawyer?

Even though Small Claims court is designed for non-lawyers, many people choose to hire a lawyer to represent them. Several considerations must go into this decision:

  • How much is the claim for?
  • Do I have the time to defend a claim myself?
  • Are there complicated legal issues that I don't understand fully?
  • How good am I at presenting a case logically?
  • Even though much of the procedure in Small Claims court is controlled by the parties to a lawsuit, the length of proceedings (and therefore the cost) can still be dependent on the actions of the parties.

    If you have been sued in a Small Claims matter, and wish to get more information, call Eric Heath at (604) 853-5401 to schedule a consultation.

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