Does someone owe you money? Has someone hurt you and you think you should be financially compensated for your damages? Have you lent money to someone and they haven't paid you back? Suing someone can take a lot of time, effort and be a costly endeavour, and there is never a guarantee that you will win your case.
There are many factors that you should consider before starting a legal claim in Ontario.
Jurisdiction
In law, the term jurisdiction refers to two general things. The first being the physical geographic location where the claim needs to be started, and the second is the legal branch that your matter belongs to.
Where is the geographic jurisdiction of your matter?
There are two options for deciding what court location you choose to file your claim outlined in the general legal Rules. Either where the action of the matter took place, or in the location of the Defendant. If you want to file your claim at a different court, then you would need to make a special request for this with your reasoning.
For example, if you, the Plaintiff, were beaten up by the Defendant in a bar in Ingersoll, you could file your claim with the Woodstock (Oxford County) Courthouse because this is where the incident occurred that instigated your claim. However, if the Defendant lives in Kincardine, you could also file a claim at the Walkerton (Bruce County) Courthouse.
If you reside in Kitchener, you could request the jurisdiction be set at the Waterloo Region Courthouse, but you would need to do extra work to make this request. This could involve getting the written permission of the Defendant to change the jurisdiction, as well as completing additional legal paperwork with your justifications of why the court should consider your request of venue.
Post Covid, most legal claims are now available to be heard online through Zoom, so the question of geographic location is less of a concern than previously.
What is the legal jurisdiction of your matter?
You need to be careful to ensure you file your claim with the correct legal section or there is a risk that it may be dismissed.
If you are requesting damages less than $35,000, then you can file your claim with the Small Claims Court. This system is more user-friendly for the non-represented, and there are less steps involved in the process than with a larger claim amount. If your claim involves an amount higher than $35,000, then you would need to file in the Superior Court of Justice. At this upper level, you are expected to hire a legal representative as the system is quite complicated to maneuver.
The general public cannot start a claim in the Criminal court, as this is reserved for law enforcement. However, the families of the victims do have an option to start a parallel claim in Civil court, depending on the offence.
If you are requesting a divorce or child custody, you would need to file a claim within the Family Law jurisdiction.
For some legal claims, there may be a specific Board or Tribunal that you would raise your issue with. If you have an employment complaint, you should raise your matter with the Ministry of Labour. If you are disputing your Insurance company, then you might file a claim with the Financial Services Regulatory Authority of Ontario. If you are a landlord looking to evict a tenant, then you would raise your claim with the Ontario Landlord and Tenant Board. However, if a tenant has already moved out of a landlord's property and is looking to collect money for damages, then the jurisdiction switches to Small Claims Court.
If you are in doubt of which jurisdiction to file your matter, a simple Google search may help point you in the right direction.
Do I need to hire a lawyer or paralegal?
Legal representatives have education and experience that may assist you to be successful in winning your case. However, they also may charge extensive fees, not have the proper time available to focus on your matter, and not necessarily have your best interest in mind.
Should a person wish to represent themselves in Small Claims Court or with the Landlord Tenant Board, there are clear step-by-step instructions provided online to follow. With the Landlord Tenant Board, there is often duty counsel provided for assistance during the hearing, should the claimant want help.
The Family Law court system can be incredibly confusing to maneuver and you will still need lawyers involved to complete the final steps of a Separation Agreement or Divorce Order. Considering the personal emotions involved in this jurisdiction, it is highly recommended a lawyer be hired. Note that paralegals are not permitted to work in Family Law.
Paralegals have strict rules of what legal areas they are permitted to work in. These include Landlord Tenant, Small Claims Court, Traffic Court, and some Boards and Tribunals. Although retaining a paralegal can save costs in some matters, you need to ensure they are permitted to work in the jurisdiction of your case, or there is a risk your claim will be thrown out by the court.
Where do I find a legal representative?
All lawyers and paralegals in Ontario are governed by the Law Society of Ontario. There is a directory on their website that can help you find the right person for your matter. Use the advanced search option to narrow down the list by areas of law / legal services. www.lso.ca 1-800-668-7380.
As with hiring any professional for a service, it is a good idea to look at the online reviews of each legal representative that you are considering using. The average fee of a Paralegal in Ontario is between $100-$200/hour; the average fee of a Lawyer in Ontario can range from $150-$300/hour.
Who are the parties?
If you are the party starting the claim, then you are the Plaintiff, Applicant, or Claimant. The person you are filing your claim against is the Defendant or Respondent.
You need to ensure that the proper legal names of the parties involved are written on your claim. If a name is not correct, this may give the Defendant a reason to ask for your claim to be thrown out. If you need to include several 'AKA's ('also known as'), then it is better to do so than risk entering a name incorrectly. Sometimes a person may use a completely different everyday name than their given name, so it is worth doing the research ahead of time.
For example, if you are suing David Gary Smith, then you may also wish to say aka Dave G. Smith, or D. Gary Smith (should you discover he often goes by his middle name). Maybe you discover that David Gary Smith also uses the name 'Jerry'. If this is the case, again, ensure you include this as an AKA on your claim.
If you are suing a company, then you may need to find the proper legal name of the business. For example, you may know a business as 'Central Park Lodges Ltd.' but their true legal business name is '2871637 Ontario Inc.'. If you do not include both of these names on your claim, it could hurt you when you go to collect on a judgment because their bank account may only be registered in the Ontario numbered company name.
What is the burden of proof?
It is up to the Plaintiff who started the claim to prove their case through evidence. In criminal court, the person is required to be found guilty beyond a reasonable doubt. This translates to an understood 90% assurance of certainty. In the small claims court, this measurement is much lower. The plaintiff is only required to prove their case as more likely than not, meaning they are 50% correct.
How strong is your claim?
If there is a written contract involved in your claim, then it should be straightforward as you are asking for the agreement to be enforced. For example, if you have a landlord-tenant lease where the monthly rent is clearly stated as $2000 and your tenant has not paid you for three months, then the judge will be able to understand the $6000 that you are requesting.
If you have physical evidence to back up your claim and you have included this in your paperwork, then this will also provide strength to your matter. For example, if you are suing someone for stealing a chair off your front porch and you have photos showing them physically taking the chair, then your evidence is clear.
What is circumstantial evidence?
You can think of circumstantial evidence as pieces of a puzzle. If you have 3/4 of the parts of the full picture that make logical sense when put together, then a judge may be convinced of your argument. For example, if money is stolen from your house and you know that there was only one person who had access to it during the time frame that it was stolen, logic says that it was most likely that person who took it.
What is an affidavit?
An affidavit is a written statement by a witness to your case, which is sworn before a commissioner who confirms it is true. A written affidavit is the equivalent of a person physically being a witness in court. This can be a vital piece of evidence to support in a Small Claims Court matter.
What is case law?
The written laws of Canada are referred to as statutes. These are the general rules that the government has provided to act as a guideline when deciding if a law has been broken. Case law, or common law, is used when there is a question of interpretation of a statute. The verdicts of previous similar cases are examined and considered to rule on a current claim. Sometimes case law may even override or contradict a written statute, making it archaic.
The general public has access to case law through the website: www.canlii.org
Costs
Before starting a claim, you need to remember that there are many costs involved regardless of the final outcome. For example, in the Ontario Small Claims Court, there is a cost of $108 to simply file your claim. You may need to pay a process server to give this to the other party, which costs an average of $100. If the other side does not respond to your claim, you can request default judgment at a cost of $94. Should you proceed to trial, there is an additional $308 cost. Then if you do hire a legal professional to assist you, you need to factor in those charges. If you win your case, you can request for an order of reimbursement of costs from the Defendant, but this is not always guaranteed.
If you follow any long, involved legal cases in the media, you will often hear how the only winners of a case are the lawyers because all of the money won just went to pay for legal costs.
Collection after judgment
What most Caimants do not realize is that just because you obtain a judgment or order against someone, this does not mean you get your money immediately. You may need to proceed further with the legal system by issuing a garnishment against them to intercept wages from their employer if you can confirm where they are working. You do have the option to place a lien on owned property, but this may only come into play when the debtor goes to sell that property at a far future time.
Should the debtor also owe other people money, then your judgment may get pushed down in order of payout, depending on the priority of these debts. For example, if someone has an order against them from the Family Responsibility Office (FRO) to pay child support, any available income earned by the debtor will likely be directed there first.
Is it worth it?
Due to the costs involved in filing a claim, it may not be worth suing someone if they owe you less than $2000. You also need to consider if the person will have the funds to give you should you obtain a judgment against them.
If the defendant is currently on ODSP, residing in subsidized housing, or has no confirmed assets for collection, then it may just be a waste of your time, money and efforts to get a judgment. The old expression holds true: You can't squeeze blood from a stone.
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Agent K Private Investigations Inc. can locate your debtor and confirm assets for collection to enforce your judgment. With over 14 years of experience in the legal industry, Agent K will also go above and beyond to ensure your enforcement paperwork is correct so you can get your money.
