Pleadings in Small Claims Court

June 20, 2022

By Mark Lahn

Pleadings in small claims court do not have to reach the same degree of sophistication as pleadings in the Superior Court of Justice.

Pleadings are the documents in which the parties set out their claim and their defence. In the rules that apply to Superior Court cases, there are detailed provisions with respect to what must be in pleadings. A pleading which does not comply may be struck out.

At trial, the pleadings are what the judge reads in advance to understand what your case is about. They also set the boundaries of the issues and facts that the parties must prove through evidence. In Superior Court, the courts are very strict about not allowing new theories to be advanced at trial that ambush the other party. For that reason, Superior Court pleadings tend to be very detailed and set out not only the facts to be proven, but the legal theories that apply.

Even with the increase in the Small Claims Court limit to $35,000, and the resulting increased frequency with which we see lawyers appearing on cases, the Small Claims Court is much more flexible than Superior Court with respect to the content of pleadings. This means in most cases that as long as you set out the facts of your story sufficiently and accurately, the deputy judge hearing the trial will attempt to identify and apply the appropriate legal theories.

A somewhat higher standard may be expected of pleadings prepared by a lawyer or paralegal, according to a 2018 Divisional Court decision which held that where both parties were represented by paralegals, a trial judge should not raise an issue not in the pleadings. That leaves open the question of what happens when one party is self represented. Given the obligation of judges to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation, will the self represented party’s pleadings receive a more liberal approach, or will both?

A liberal approach might still apply, if it does not involve a new issue, if a 2017 Small Claims judgment (that is, prior to the 2018 Divisional Court decision) is still good law. In that case, the deputy judge ruled that “the plaintiff in this case ought not to be saddled with the shortcomings of the paralegal” and determined that a poorly pleaded cause of action was nonetheless a cause of action and found in the plaintiff’s favour. As that judge points out, Small Claims Court is first and foremost expected to rule in a manner “just and agreeable to good conscience”.

There are some specific exceptions to how far this liberal approach will extend. For instance, a claim of defamation must contain certain specific elements and in a 2021 case the Divisional Court dismissed a plaintiff’s defamation claim on appeal because it did not disclose the proper cause of action. Defamation is one of the types of claims expected to be increasingly common in Small Claims Court, as many situations cause damages less than $35,000.00 but higher than the prior limit.

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. If you want or need help telling your story, or making sure than your legal bases are covered, Weilers Law is here to help. We have a variety of options, from a single consultation to full representation, that offer you a choice of price options. We would be happy to discuss these options with you.