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Summary

This article provides a comparative review of the two venues to commence your legal action in Ontario.

Overview

If you have suffered a wrong (i.e. breach of contract) you may commence a legal proceeding in an Ontario court. You may do so in Small Claims Court (“SCC”) or in the Superior Court of Justice (“SCJ”). This article provides a comparison of both procedural paths and concludes with the benefits and drawbacks of each. The substantive law (i.e. the interpretation of the contract) is the same in both the SCC and SCJ.

Comparison Chart – Small Claims Court and Superior Court of Justice

Procedural Item

Small Claims Court

Superior Court of Justice

Monetary Limit

$25,000.00.[1]

$25,000.01 – Unlimited.

Non-Monetary Limits

Cannot grant certain relief relating to declarations and specific enforcement (i.e. to require a party to perform the contract).

N/A

Pleading Stage (i.e. claim/ defence, etc.)

The content of the pleadings is the same for SCC and SCJ.

Additional and more extensive pleadings options are available.

Discovery – Documentary and/or Oral Examination

Only documentary discovery required. Each party required to produce a copy of the documents it intends to rely on at trial.

Documentary and oral examinations occur in two stages. Each party required to produce every document relevant to any matter in issue in the action.

Motions (i.e. a request made to the court)[2]

Rare.

Common, depending on the amount in dispute (i.e. request for production of documents, etc.).

Pre-Trial/ Settlement Conference

Party required to appear.

Party required to make a written submission and appear.

Expert Reports

Required if necessary to prove certain issues.

Required if necessary to prove certain issues.

Trial

Less formal – Usually 1 day

Formal – Multiple days/weeks

Costs/Legal Fees – Loser Pays the Winner Some but Not All[3]

15% of the amount awarded + reasonable disbursements (i.e. 15% of a $25,000.00 claim is about $4,000.00).

Partial indemnity which is usually 50% of the fees incurred by the winning party + reasonable disbursements (i.e. if the winning party’s legal fees to their lawyer are $10,000.00, they would seek 50%/ $5,000.00 from the losing party).

Time Period – From Start to the Trial Date[4]

8-12 months.

2-3 years.

Self-Representation

Permitted for individuals and corporations.

Permitted for individuals only. A corporation must be represented by a lawyer unless the court orders otherwise.



Note, a proceeding filed with the SCJ that seeks damages of $100,000.00 or less is governed by a “simplified procedure”. This requires the litigating parties to comply with stripped-down procedural rules. The objective is to ensure cost and time savings for the parties and the court.

The goal of the SCC is to deliver justice in a summary manner that is timely, cost effective, and is accessible to the public.

While the goal of the SCJ is similar to the SCC, stricter and more comprehensive procedural and evidentiary rules result in a slower and more expensive process.

The SCJ is occupied by mostly lawyers, whereas the SCC includes a substantial number of self-represented parties.

Conclusion

What court you choose to commence your proceeding is often influenced by the following factors:

  • What are you asking the court to give you (i.e. damages (how much?), a declaration, etc.)?
  • Will you retain a lawyer?
  • What is your risk threshold for paying legal costs?
  • Is there urgency to getting the matter resolved?

The decision to commence a claim in SCC or the SCJ should be made after a comprehensive analysis of the material facts and applicable law. That exercise should be undertaken by a lawyer. This article does not constitute legal advice. The reader should seek the advice of a qualified lawyer.

Cole Vegso is an associate lawyer and member of Siskinds’ Commercial Litigation Law group. He has a broad civil litigation practice that covers commercial related disputes. If you have any questions about this article or require informed, timely, and cost-effective legal advice, please contact Cole at 519-660-7755 or [email protected].


[1] Claims for amounts greater than $25,000.00 can still be commenced in SCC. The excess amount is waived. For instance, if you are owed $40,000.00 and you commenced your claim in SCC, you would be required to waive $15,000.00 so that your claim was for $25,000.00.

[2] A motion is a request made to the court by one party to the action asking the court to issue a ruling or order on a legal matter related to the action.

[3] Costs are always within the discretion of the judge hearing the matter. The above statements reflect what is typically awarded.

[4] This assumes that there is no unnecessary delay. This could be longer if there are multiple parties involved. A complicated SCJ matter will likely involve more interim steps and take longer to prosecute.

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