June 29, 2023
You start a law suit in Small Claims Court for damages under $35,000.00.
Later, you realize that:
- Damages are not an adequate remedy. You need perhaps an injunction, or specific performance, or rectification of a contract. These are equitable remedies not available in Small Claims Court.
- Or maybe you simply discover that your damages are greater than $35,000.00 – enough so that you would be foolish to limit your recovery to the Small Claims Court limit.
- Or maybe you require relief under the Business Corporations Act, which is available only in Superior Court.
- Or maybe you need the procedural advantages of the more fulsome and formal Superior Court process.
What do you do?
If you are within the limitation period, it is likely easiest, cheapest, and simplest to discontinue that Small Claims Court action and start a fresh action in Superior Court. You may have to pay some modest costs to discontinue in Small Claims action, but those will be less than other methods to transition to Superior Court. You could try to avoid costs by starting a Superior Court action, and bringing a motion within that action to consolidate your Small Claims Court action – but that motion will likely be just as expensive as paying court costs to discontinue.
If you are past your time limit to start a fresh action, it gets tricky. Then you need to bring an application in Superior Court to transfer your Small Claims Court action to Superior Court.
This is not a cheap or easy step. There is not one standard test. Each case depends upon its own facts, considered within an overarching goal of the fair and just resolution of the case.
Cases have considered factors such as:
- The complexity of the litigation;
- The role and importance of pre-trial discovery and expert evidence; and
- Whether the case raises issues of general importance.
The leading case, Segura Mosquera v. Rogers Communications Inc., points out that the decision to transfer is discretionary, thus not likely to be overturned on appeal, and not automatic. It says that “the discretion to transfer should be exercised rarely.”
Why is this?
To avoid undermining the “jurisdictional legitimacy of the Small Claims Court.”
The simpler process in Small Claims Court is often more appropriate, cheaper, and quicker than Superior Court. Small Claims Court is an important tool for advancing access to justice.
The Court of Appeal reviewed this decision, and upheld it, in a brief judgment emphasizing that transfers are permitted only where the claim cannot be fairly resolved in Small Claims Court.
A more recent decision also points out that:
A transfer can engender negative consequences. SCJ actions expose the parties to higher costs of pre-trial discovery and trial, both in terms of counsel fees and potential costs awards. If the application to transfer is made just before trial, it may result in duplication of work.
- Selecting the correct court is an important decision.
- Superior Court may have procedural advantages over Small Claims Court.
- But the simplicity of Small Claims Court can have a different sort of advantage:
- A quicker process
- Less complexity
- Less cost
- Greater access to justice
- These countervailing factors must be carefully considered. If in doubt, seek legal advice.
- Beware of the costs consequences of being in the wrong court.
WHAT WEILERS LLP CAN DO TO HELP YOU
If you have a claim you wish to take to Small Claims Court or have been served with a claim and need to prepare a defence, you are entitled to be self-represented. The cases discussed above show a few of the reasons why this is not always the best choice.
If you want or need help telling your story or making sure than your legal bases are covered, Weilers LLP is here to help. Our experienced litigation team offers a variety of options, from a single consultation to full representation, that offer you control over your costs.
If you are unsure which court to sue in, or need advice about any other litigation questions, give Weilers LLP a call. We may be the right lawyers to help you.