Beginning an action in Small Claims Court can be intimidating. Often, the cost of a lawyer may be more than the amount that the individual is claiming, and the court process can be confusing. This document explains how to start an action in Small Claims Court and provides information to help you understand the process.
While this document will summarize the rules that both the individual suing and the individual being sued should follow, the reader may wish to review the Small Claims Rules.
Small Claims Rules refer to the rules of procedure in Small Claims Court. These rules include certain requirements for starting an action in Small Claims Court.
In the Province of Newfoundland and Labrador, Small Claims Court hears civil actions where the value of the claim is no more than $25,000
Civil actions: They deal with disputes between private parties including: individuals, corporations, companies located outside of the province, partnerships, municipalities, young persons, unincorporated associations, trade unions, and the Crown (meaning government).
Judges are aware of the fact that many individuals who represent themselves are not familiar with legal rules and procedures and will allow, within the limits of the law, for these limitations. However, neither the judge nor the court staff can offer legal advice to parties in a civil action.
The Public Legal Information Association of Newfoundland and Labrador (PLIAN) can provide general information and education about the law to all Newfoundlanders and Labradorians. PLIAN also has a Lawyer Referral Service that offers consultations with practicing lawyers at a reduced cost. (See our lawyer referral page)
Often, a lawyer can cost more than the amount the plaintiff is claiming. For this reason, many people, known as self-represented litigants, will represent themselves in court.
The following are a few helpful guidelines for bringing a small claims action
I want to bring someone to Small Claims Court:
The Court has set a date for the settlement conference:
We were unable to settle:
It’s the day of the trial:
The judge has decided in my favour, and I want to I collect my money:
The judge did not decide in my favour, and I want to appeal:
The Court can hear claims for debt or for damages, which may include breach of contract. The Court can also hear actions for unpaid municipal taxes
Damages: the court may award damages to an individual who has suffered a loss or injury. Typically, this award is money.
Common cases are actions for damages arising from car accidents, failure to pay for services or goods, failure to repay loans, and failure to perform services adequately (i.e. roof repair, car repairs, plumbing, or carpentry).
Many of these actions involve oral contracts which means that they were never written down but are still enforceable in law. With these cases, the Court has to determine what the actual terms of the contract were.
What kinds of actions will small claims court NOT hear?
A claim or counterclaim in relation to
Other claims that will not be heard include…
Malicious prosecution: where the defendant intentionally pursued a legal action against the plaintiff without reason.
False imprisonment: where the defendant imprisoned the plaintiff, physically or mentally, without the legal authority to do so.
Defamation: where the defendant has damaged the plaintiff’s reputation.
The plaintiff must only bring one claim to court at a time. However, if the plaintiff OR the defendant appears to be bringing more than one claim, they can decide which of the claims they would like heard and which they would like to abandon. This must be done in writing and signed by him or her. In this event, they will be unable to recover for those other claims later in a separate action.
If there is a counterclaim that the court cannot hear, a party can apply to transfer that claim to the Supreme Court, Trial Division. This is a court separate from Small Claims Court which can hear a number of different matters.
Actions are started in Small Claims Court by filing a statement of claim with the court and paying a fee. If the plaintiff wins their claim, the court will usually order the defendant to pay back this fee to the plaintiff.
A plaintiff (the person filing the statement of claim) shall file their statement of claim and pay the required fee at the court nearest to where…
After the statement of claim has been filed with the court, the plaintiff is required to serve a copy of the statement of claim to each defendant named in the statement of claim.
Making a claim…
If a claim is against more than one defendant:
A plaintiff may name more than one defendant in a statement of claim where the claim against each defendant is related to or connected with the original subject matter of the claim.
If a claim is for more than $25 000:
A plaintiff who has a claim of more than $25, 000 may abandon that part of the claim that is more than $25, 000.
If you choose to abandon part of a claim:
A plaintiff who abandons part of a claim may not at any time sue for the abandoned part of the claim unless the entire claim is withdrawn and is brought to the Trial Division.
If you are making a motor vehicle collision claim:
A plaintiff whose claim is based on damage to his or her vehicle, resulting from a motor vehicle accident, must attach to his or her statement of claim either an estimate of damage from a qualified mechanic or a receipt for repairs completed by a qualified mechanic.
If you wish to make a claim against a deceased person:
A plaintiff making a claim against a deceased person must contact the Probate Registry ((709) 729-2569) to determine whether or not there has been someone chosen to a represent the estate
And their estate has a representative:
If there is an estate representative, a claim against the deceased person must be made against the representative. The statement of claim must state that the claim is against the representative.
And their estate has no representative:
Where a representative of a deceased person’s estate has not been selected, a plaintiff must apply to the Supreme Court of Canada to have a representative appointed before proceeding with a claim.
A statement of claim will expire if it has not been served within 12 months after it was filed with the court. However, the plaintiff may apply to have the statement of claim renewed
The statement of claim may be served on an individual in Newfoundland and Labrador by either:
Service of a statement of claim where the individual is outside the province
A statement of claim may be served on an individual outside the province where…
Time limits on a statement of claim served outside the province
Before a statement of claim is served outside the province, the plaintiff shall write the time limit for filing a reply from outside the province on the statement of claim and file a copy with that time limit on the statement of claim at the court.
Where there is difficulty finding a defendant
Where a statement of claim cannot be served, the plaintiff may apply to the court who may…
Where a defendant does not reply to a claim
Where a defendant does not file a reply within the time limit, the plaintiff may ask the court for a default judgment. This means that the court will make a judgement in favour of the plaintiff simply because the defendant has not met the time limit.
A reply to a statement of claim must be filed by a defendant
How to ask for a default judgment
To ask for a default judgment, a plaintiff must complete Form 5 and file it at the court where the statement of claim was filed with a copy of the certificate of service for the statement of claim.
How to serve
An individual over 19 years of age:
The plaintiff must file a printout of a corporation search showing the most recent address of the corporations registered office on file with the Registrar of Companies and the document must be served by…
A company based outside of Newfoundland and Labrador:
Where the defendant is a corporation outside of Newfoundland, a document will be served…
A document must be served…
A document must be served by…
An individual under 19 years of age:
An unincorporated association or trade union:
A document must be served by…
The Crown (the government):
If you are suing the Government of Newfoundland and Labrador, or any individual Government department or agency, this means you are serving “Her Majesty in right of Newfoundland and Labrador.” You must also make sure you comply with the Proceedings Against the Crown Act and documents must be served on the Minister of Justice or the Deputy Minister of Justice.
There are responsibilities for both parties involved in a claim
In Small Claims court, the individual who is bringing the action forward is known as the plaintiff. The defendant is the individual who the action is being brought against.
As the claimant, you will be responsible for proving your case on a balance of probabilities. This means that you must convince the judge that your case is more probable than the respondent’s case.
Where a plaintiff does not attend the trial, the judge may dismiss the claim.
In Small Claims court, the person who is being sued is known as the defendant. It is up to the claimant to prove their case on a balance of probabilities.
Where a defendant does not attend
Where a defendant or third party does not attend the trial, the judge
What are a defendant’s options after they receive a statement of claim?
A defendant who receives a statement of claim may take one or more of the following actions…
How does a defendant reply?
A defendant who intends on taking an action must complete a reply in Form 2
Where does a defendant file a reply?
A defendant must file a reply at the same court where the statement of claim was filed.
Who shall the defendant serve a reply on?
A defendant shall serve a copy of the reply on all parties named in the statement of claim
Time for replying
A reply to a statement of claim shall be filed by a defendant
A counterclaim is a claim made by a defendant against a plaintiff that can be heard in court at the same time as the plaintiff’s claim. A defendant may make a counterclaim against a plaintiff in the reply following the instructions on Form 2
Where a defendant who has filed a reply thinks another person should be responsible for paying all or part of the claim against the defendant, they may make a claim against the other person by
Filing a third-party notice
A defendant must file a third-party notice at the court where the statement of claim was filed.
How to serve the third party
A defendant shall serve the documents on a third party in the same way as required for service of a statement of claim.
Notifying the other parties
A defendant must serve a copy of the third-party notice on each of the other parties within 21 days after it is filed.
What a judge may do
Where a third party has been named, a judge may make an order involving any of the parties.
Another settlement conference shall be held
Where a third-party files a reply after a settlement conference, another settlement conference will be held, unless a judge orders otherwise.
When proceeding to court, various documents can be filed
What should be filed with the court
Where a claim has been scheduled for either trial, application or settlement conference, the parties must file a list of documents that they are going to use at trial, application or settlement conference to the court. These could include contracts, written records, photographs, or any other evidence the party wants to use in court. Where a party has filed and served his or her list of documents and realized the list was not correct or was incomplete, that party can file another list and provide the other party with copies of the documents not included in his or her first list.
When should documents be served?
A list of documents and a copy of each document must be served on the other party at least 3 days before a trial, application or settlement conference.
Can the court order a party to file documents?
Where a party does not file their list of documents with the court or serve copies of the documents on the other parties named in the statement of claim, the court may order that party to do so.
Before the case is set for trial, the rules require that the plaintiff and defendant attend a settlement conference to see if there is any hope of settling the case without the need for a trial.
A settlement conference is a meeting between the parties where they attempt to reach a solution or compromise without having to go to court. Even if the parties do not agree to a settlement, the conference is useful as it allows the parties to discuss the issues involved in the case and may even shorten the length of the trial.
Either party can offer to settle one or more claims by serving on the other party an offer to settle in Form 8, and by filing a copy with the court in a sealed envelope, marked, “OFFER TO SETTLE”.
Scheduling and meeting for settlement conferences
Before a trial date is set, a settlement conference will be held at the time and place set by the court, unless the court orders otherwise.
Notice of settlement conference
The court will inform the parties of the conference by serving them with a notice of settlement conference at least 14 days before the date that it is set for.
Who will attend?
All parties to a claim must attend the settlement conference. A judge may dismiss a claim or decide against a party who does not attend a settlement conference.
What to bring
Each party must bring all the documents and reports that they wish to use at the trial. If a document or report cannot be brought to a settlement conference, that party may apply to the court for an order postponing the conference as long as the application is filed at least 7 days before the date set for the conference.
Expenses for attending settlement conferences unprepared
Where a settlement conference cannot be conducted properly because a party is not prepared for it, the judge may order that party to pay the reasonable expenses of the other party or parties.
How to change a settlement conference date
A party may change a settlement conference date in three ways:
Where the date of the settlement conference is changed, the court shall notify the parties of the place and time of the rescheduled conference.
Where damage to property is involved…
The person hearing the settlement conference might be a judge, but is not required to be one:
If a judge sits in on the settlement conference, they may
If the person hearing the settlement conference is not a judge, they may
Where a party does not comply with a settlement agreement
Where either party does not comply with a settlement, either party may apply to the court for an appropriate remedy and the court can make an order that it considers just.
If the matter cannot be resolved by settlement conference, the matter will usually go to a trial. The judge who hears a settlement conference will not hear the matter if it goes to trial unless the parties both agree to have the same judge at the trial.
Notice of trial date
Where a trial date is set at a settlement conference and a party is not there, the court can serve a notice of the trial date.
Where a plaintiff does not attend Court
Where a plaintiff does not attend at the time set for a hearing, the judge may cancel the hearing, but the plaintiff may ask the court to reschedule it.
If you believe you have a necessary witness that you would like to give evidence at trial, you can subpoena them. However, a subpoena is not necessary if a witness agrees to attend court voluntarily
If the person who was served with a subpoena decides, for no valid reason, not to come to the trial, the judge may issue a warrant to bring that person before a judge to give evidence.
To tell a witness that they must attend court, they must be subpoenaed.
The subpoena may be cancelled
Where a person who is served with a subpoena to witness…
That person may apply to a judge who may cancel the subpoena, or make another order, including an order to change the date.
Where a witness does not obey a subpoena
A judge may issue a warrant for the arrest of a witness who does not attend court as required by a subpoena to witness where the judge is satisfied that
To require a witness to attend court, a party must
At the time the subpoena is served, the party subpoenaing the witness must offer the witness reasonable estimated travelling expenses and the required witness fee ($4/day).
Change of address
A party shall notify the court and all other parties to a claim in writing of a change in address.
What the judge may do when a witness appears
Where a witness is brought to court under a warrant for arrest or attends voluntarily, and the witness’s evidence is still required, a judge may…
All verbal evidence shall be given under oath or affirmation. The judge shall ensure that a complete record of the evidence at a trial is taken in writing or by a sound recording machine
How evidence will be heard at a trial
A judge may conduct a trial without complying with the formal rules of procedure, meaning it can be carried out in a more relaxed, informal way and in doing so may…
In a Small Claims trial, each party will be called upon to present its evidence to the Court. In Canada, each witness (including the parties themselves) will be asked to give evidence from the witness stand under oath or affirmation. The plaintiff will present its case first and ask the witness questions. The plaintiff will have to explain in his or her own words the nature of the claim to the judge. After each witness has testified, the defendant will be permitted to cross-examine the witness in order to clarify or verify the account. You must frame your queries to each witness in the form of a question and you should avoid an argument with the witness.
Once cross-examination is complete, the person calling the witness may be permitted to conduct a re-direct examination and ask any questions about the evidence arising out of the cross-examination. The evidence of each witness will be heard in this way. Once all the evidence for both parties is before the Court, the parties will each have an opportunity to make their final submissions and try and convince the judge to find in his or her favour.
During direct examination, the plaintiff and the defendant will question their own witnesses. This is done in order to support the case that is being made. During cross-examination, both the plaintiff and the defendant can question each other’s witness in order to challenge or extend the testimony already given.
Types of Evidence
Oral Testimony of Witnesses
Documents -> Photos, diagrams, cheques, letters, etc
The judge may either give an oral decision when the trial has ended, or wait and file a written ruling at a later time. This is usually done when the judge sees the need to research a point of law. When the decision is filed, the court clerk will notify the parties and each party will be given a copy of the decision.
The judge shall give a decision in court orally at the end of the trial or on a later date or in writing. Where a judge’s decision is to be given orally on a later date, the court will notify the parties of the date.
A judge’s written decision is effective on the date it is filed at the court.
If you are not satisfied with the decision
Both the plaintiff and the defendant have the right to appeal to the Supreme Court of Newfoundland and Labrador (General Division) if they are dissatisfied with the result.
If either party is dissatisfied with the result at to the Supreme Court of Newfoundland and Labrador, they may appeal to the Court of Appeal and then if necessary with leave, to the Supreme Court of Canada.
Where an appeal is taken, the appellant must give written notice of the appeal within 30 days of the judgment or order to the court and to the other parties in the proceeding.
The judge has decided in your favour. Now what?
How do I collect the money I’ve been awarded?
Register your judgement: If you have applied for a judgment by default, you may already be registered.
However, you may want to register a judgment you received from a judge after your trial. To do this you will need to fill out a Judgment Registration Form and file it with the Court. There is a $15 fee to do this. Give instructions to the Sheriff’s Office about how to get the money you’re owed. Contact them directly at (709) 729-4646.
To determine if the debtor is able to pay the claim owed, a creditor can serve a questionnaire on them. It must be completed and returned to the creditor within 15 days of service.
The creditor must provide the sheriff with a copy of the completed questionnaire at the time he or she issues first instructions to the sheriff.
If the creditor does not wish to serve the questionnaire themselves, they may have a Sheriff do so for them. In this case, the questionnaire must be completed and returned to the sheriff within 15 days of service.
The purpose of a payment hearing is to allow a judge to assess the debtor’s ability to pay and consider whether a payment schedule should be ordered.
A payment hearing will be held where it is requested by the creditor, requested by the debtor or ordered by the judge.
How a creditor asks for a payment hearing
To ask for a payment hearing, a creditor shall complete Form 11 and file it at the court.
Service of the summons
A person named in a summons to a payment hearing must be served by the person requesting the hearing at least 5 days before the date of the hearing. Proof that it was served must be filed with the court by the person requesting the hearing at least 2 days before the hearing takes place.
What happens at a payment hearing?
At any payment hearing under these rules, evidence may be heard about any of the following:
Judge may order a payment schedule
After hearing the evidence and submissions by the parties, and after receiving a report from the enforcement registry which says there is no instalment order in place against the debtor, the judge may order a payment schedule specifying…
Where a creditor does not attend
Where a creditor does not attend a payment hearing, the judge may hold the hearing, cancel it or postpone it.
Where someone summoned or ordered to attend does not attend
Where a creditor asks, a judge may issue a warrant for the arrest of a person who does not attend a payment hearing and who was
and a good reason is not shown for the failure or refusal to attend.
Creditor may apply for payment hearing at another place
The creditor may apply to the court to have a payment hearing at a court in another location from where the file is located where that court is nearest to where the debtor lives or carries on business or is temporarily employed.