Bringing an Employment Claim in Small Claims CourtWritten on behalf of Peter McSherry
Court System Generally
Ontario’s legal system allows for cases to be started in Superior Court at different levels of complexity depending on the amount claimed by the plaintiff. Superior Court cases allow for a process known as “Simplified Rules” for claims up to $100,000. These cases have limits on the time spent for discovery and basically try to expedite the process and minimize legal costs. The maximum time allowed for discovery for each side is two hours.
Small Claims Process
A further division of this court is Small Claims Court. This court has a monetary limit of $25,000. Interest and costs may be awarded on top of the $25,000 cap.
There are some real advantages of using Small Claims Court, as laid out below. Sometimes a plaintiff may choose to limit a claim for, say, wrongful dismissal, to this cap to avoid having to sue in the normal Superior Court.
No Pre-Trial Examinations
There are no discoveries allowed in this process. Discoveries are a pre-trial procedure by which either party may question the opponent under oath to understand what evidence at trial will be led by the other side. These examinations are completely eliminated in Small Claims Court which means fewer legal fees and there is no need to pay for the transcript of the examination of discovery. Both these expenses can be considerable. Keep in mind in the usual process, the loser pays both sides.
This may be also a disadvantage as neither side will know in advance of the expected evidence of the other side.
In addition, the regular court process in Guelph or Kitchener-Waterloo does not have a mandatory mediation or settlement meeting. Only Toronto, Windsor and Ottawa forces this process, which can be very effective in settling cases. In municipalities where mediation is completely voluntary, if one side says no to this it will not happen.
Settlement conferences in Small Claims Court are similar to mediation but conducted by a judge. These are mandatory in this process. It is very hard for either side to delay this as these meetings are set by the court and attendance is mandatory.
Once the case is started, the court office will book this date. Normally this event will take place within two to three months after the defence has been filed.
There is much less opportunity to delay the case as there are no discoveries, which is usually a built-in delay and often used by one side to stall the progress of the case. Courts are usually quite forgiving of delays and a party intent on delaying the case can take advantage of this and often do. This is not a factor in Small Claims Court.
Legal Costs and Disbursements
It is cheaper to start the court process as the filing fees are much lower. Just as in the normal court process, the losing party pays the winning party legal costs, to roughly two-thirds of the actual costs.
The concept of “winning” and “losing” is not straightforward. Winning means winning the case and also recovering more than a settlement offer. This is a big inhibitor to trials in the normal process as the costs can be very significant and often not worth the risk of going to court.
In Small Claims Court, the same concepts apply but the costs liability is much less, usually capped around $3,750. This makes the risk much more manageable. For this reason, there is much more possibility of taking the case to trial from the plaintiff employee’s view, which then, ironically, increases the settlement potential as the company understands that the case is more likely to proceed to trial.
Small Claims Court is faster, easier, cheaper and less risky. Even if your case is above $25,000 recovery, it may be worth considering this process.
Understand Your Rights
Get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to a human rights violation and how to deal with it. Contact us online or by phone at 519-821-5465 to schedule a consultation.