Hurdles for Self-Represented Litigants in Small Claims Court - LawNow Magazine

Hurdles for Self-Represented Litigants in Small Claims Court

The rules and processes at Small Claims Court were designed to be simple and flexible, so that everyday people could have their disputes resolved without hiring lawyers or paralegals. However, the reality is that many self-represented litigants continue to face significant hurdles in accessing the justice system through Small Claims Court without professional help.

..the self-represented litigant must remember that a courtroom is probably the only place where what matters the most to a judge is the strength of a party’s argument and the relevant evidence. This problem has become significant in the last few years, as more and more people are representing themselves in Small Claims Court. Due to the significant rise in self-representation, one hopes that the court system will evolve to better meet the needs of self-represented litigants. In the meantime, here are answers to some of the common issues that the self-represented litigants are currently facing.

Where to Begin: does your case belong in a Small Claims Court?

Monetary Jurisdiction

Each Canadian province has enacted specific legislation for small claims matters. This legislation deals with various relevant procedural matters. For instance, the legislation will confirm the monetary jurisdiction of a provincial small claims court or lay out the procedure for determining which specific court office location to choose when commencing a court action in a small claims court. In Alberta, for example, a claimant can seek monetary remedy of up to $50,000 in the Provincial Court – Civil (commonly known as Small Claims Court), whereas in Ontario, the monetary limit is $25,000 in small claims court. Self-represented litigants must check the applicable provincial legislation to ensure that their claim is commenced in the appropriate court.

Subject Matter of the Claim

Sometimes, when a case is within the monetary jurisdiction of a small claims court, a litigant may still not be permitted to issue a claim there. For instance, in Ontario, when a case is specifically related to a human rights discrimination matter, the only place a litigant can file his case is with the Human Rights Tribunal. Similarly, the majority of landlord and tenant matters cannot be commenced in Small Claims Court in Ontario, but only in the respective provincial landlord and tenant tribunals. In Alberta, on the other hand, landlord-tenant disputes are properly adjudicated before the small claims court. Therefore, it is important for self-represented litigants to consider whether the subject matter of their claim properly belongs to a small claims court.

Court Location

..our court systems do not allow “trials by ambush”. This means that each side is entitled to know the full extent of the other side’s case well before the commencement of trial. Many self-represented litigants in Ontario assume that they can simply commence their claim in a small claims court near their home or place of work. This is not true. A claim in small claims court must be commenced in a specific court office based on Small Claims Court Rules.  Based on these rules, a self-represented litigant can choose the appropriate court office in one of the three ways: a court office in the territorial division where the disputed events occurred, where the defendant lives or carries on business, or the court office that is nearest to where the defendant lives or carries on business.

Preparing for Trial

Persuasive presentation at trial requires a lot of preparation. A self-represented litigant must remember that a Judge will make his/her decision based solely on the facts and supporting evidence presented at trial. Broadly speaking, before attending at trial, self-represented litigants must know the legal test they need to meet at trial to win the case. This will ensure that the self-represented litigant will organize the facts and supporting evidence in the same fashion. One way to organize the evidence at trial is by preparing a table of facts and evidence where each fact that needs to be proven is listed along with the evidence (oral, documentary etc.) that would prove that fact.

Self-represented litigants must check the applicable provincial legislation to ensure that their claim is commenced in the appropriate court.

Sometimes a party may introduce evidence at trial that was not shared with the other side before-hand. When faced with a surprising evidence at the commencement of a trial (or during a trial), self-represented litigants often don’t know how to respond. In this regard, it is important to note that our court systems do not allow “trials by ambush”. This means that each side is entitled to know the full extent of the other side’s case well before the commencement of trial. When faced with a new piece of evidence at trial, a self-presented litigant (or for that matter any party) can object to the inclusion of that evidence especially if the new evidence is harmful to her case, or ask the judge for an adjournment till the party can consider the evidence and prepare an appropriate response.

Leveling the Odds

Going against an opponent who is represented by a top-tier lawyer or paralegal may be daunting to a self-represented litigant. Many self-represented litigants feel that despite the merits of their case, the legal fire-power on the other side puts them at a significant disadvantage. In such a situation, the self-represented litigant must remember that a courtroom is probably the only place where what matters the most to a judge is the strength of a party’s argument and the relevant evidence. A self-represented litigants must, therefore, focus on presenting their own arguments in simple terms to a judge backed by credible evidence. Focusing on what really matters to a judge inevitably levels the odds for the self-represented litigant and provides an opportunity to succeed on the merits of the case.

Authors:

Amer Mushtaq
Amer Mushtaq: Amer Mushtaq is a Toronto lawyer and the founder of Formative LLP, YouCounsel and YouCounselForums. YouCounsel provides online legal courses in easy to follow steps for everyday people whereas YouCounselForums provides a platform for everyone to share legal knowledge and experience with the judicial system.
 


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