Wednesday, November 2, 2011

The Small Claims Court: In Theory and Practice

The Small Claims Court is envisioned as an efficient, inexpensive process for relatively low-value matters.

But now having a jurisdictional limit of $25,000, the Ontario Small Claims Court is hearing matters with much more importance to the parties.  And while the process hasn't changed much, and so is theoretically still simple and efficient, the parties tend to take greater steps to protect their procedural rights, dealing with so much money.

Lawyers get hired.  Documentary production becomes more elaborate - lawyers will insist upon it, and while the technical Rules of documentary production are relatively relaxed in the technical sense, lawyers are not unjustified in asking for documentary production from the other side.  (Acting for an employee on a Small Claims matter, I once sent the employer's counsel a list of documents and particulars I would insist upon, the list itself being about four pages long.  It looked absurd, at a glance, but I could make a solid case that I was entitled to production in respect of each and every one of the documents I asked for.  There were complex issues - the employer was arguing just cause and I was arguing condonation - and I was going to insist on a full and fair hearing, despite the relatively low dollar value.  This was a major factor in pressing for a settlement which was favourable to my client.)

Every Small Claims Court file I've acted on has at least one of two factors making them expensive:  Sometimes the legal issues are complex, as in wrongful dismissal matters, requiring lawyers.  (Self-represented litigants are very poorly situated to argue about reasonable notice periods.)  Other times, there are factual questions requiring an expert witness.  And experts are expensive, too.

These aren't a small sampling of cases.  A great many matters before the Small Claims Court have complex legal or factual issues.  And the process is being increasingly unsuitable to self-represented litigants.

I've successfully defended actions simply on the basis that the plaintiff was unwilling to incur the expense of getting an expert witness that would be necessary to establish its case.  I've also successfully represented plaintiffs suing for services rendered where the defendant alleged defects in the work product, but the defendant was unable or unwilling to present expert evidence establishing the defects.  (You might be surprised by the frequency with which witnesses or litigants will say "I've been told that this is the case".  In Small Claims Court, the rule against hearsay is somewhat relaxed, but I usually cross-examine in such a way as to highlight the hearsay nature of the comment, and then argue in my submissions that little-to-no weight should be given to it.)

The Court of Appeal released a case this past May, Krawchuk v. Scherbak, highlighting the need for expert evidence in cases where professional negligence is alleged.  (Incidentally, this was released just a couple weeks after I wrapped up a trial in which the precedent would have been helpful.  Doesn't matter - my client was still successful.)  Unless the subject matter is one that would be understood by the ordinary lay person, or the conduct complained of is so obviously below the applicable standard that you don't need to know the specifics of the standard to recognize the work as being deficient, an expert is required in these cases.

Lawyers, experts, and additional productions all add a lot of expense to a proceeding.  As the Small Claims Court evolves to deal with its increased jurisdiction, it is quickly becoming the not-so-Small Claims Court.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

No comments:

Post a Comment