Some key considerations in preparing for and conducting trials in Small Claims Court, from the perspective of a trial lawyer:
Rule 13.05 presents a lot of opportunity to seek orders at the settlement conference helpful to the case and trial. Orders from the settlement conference should be complied with.
If a case does not settle at the settlement conference, it is time to make your best offer (with rule 14 in mind) and turn your mind to trial preparation. Self-represented parties may want to consider getting an opinion on their case from a lawyer paralegal.
There are a number of important deadlines 30 days before trial:
– Amending a pleading – rule 12.01(1)
– Serve documents, audio and video – rule 18.02(1)
– Serve written statements, if any – rule 18.02(1)
It is recommended that pleadings, documents and witness lists be reviewed at least 60 days before trial to make sure that everything is in order. Anything that needs attention can be touched up in the next 30 days. Marking 60 and 30 days before trial in one’s calendar is advisable.
Written statements under rule 18.02 present a great opportunity to get evidence in at trial cost-effectively. But bear in mind that despite this rule, a witness appearing in person is more persuasive. The recipient of a written statement should consider summonsing for cross-examination. When it comes to experts, please click here for a template expert report for Small Claims Court.
An offer to settle made 7 days before trial can have costs consequences. See rule 14.
Mediation the Day of Trial
The Small Claims Court has good mediators. If you’re not at the top of the trial list, you may as well spend your waiting time trying to settle the case. If the case cannot be settled, discussing what can be done to speed up the trial is useful. Obvious admissions and an agreed statement of facts can drastically reduce trial time.
Courts of Justice Act and Hearsay
Section 27 of the Courts of Justice Act permits hearsay at trial so long as it is relevant. The party wishing to advance hearsay evidence should try and get first hand evidence instead. The party who would otherwise prefer no hearsay evidence should ask the Deputy Judge to give the hearsay as little weight as possible, especially if there was a better source.
Small Claims Court Trial Procedure
Opening statements, if any, should be brief as the Deputy Judge will have read the pleadings. Get right to the point.
The plaintiff will call its witnesses first and enter its exhibits into evidence. The defendant will get to cross-examine all witnesses. There is a right for a redirect examination only on new issues raised in cross-examination. Do not try to simply repeat evidence.
The defendant will then get to call its witnesses and enter its exhibits into evidence. The plaintiff can cross-examine and there is a limited right to redirect.
The plaintiff will have a limited right to call reply evidence on new issues raised by the defence, so long as they could not have been anticipated by the plaintiff. Calling reply evidence is usually rare and the plaintiff cannot split its case by calling new evidence it should have called earlier.
Closing statements should heavily focus on persuasion using the facts to tell a story. The Deputy Judges knows the law well, it is the application of the law to the facts and a persuasive story that can give parties an advantage.
Costs will generally go to the successful party, but are limited to 15% of the claim by section 29 of the Courts of Justice Act. Consider the outcome of both the claim and any counterclaim, which can increase the amount of money at stake to more than $35,000.
This article is courtesy of the Ontario Civil Trial Manual
Click here for the Ontario Civil Trial Manual
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