Should You Represent Yourself in Small Claims Court?

December 29, 2021

By Brian Babcock

Small Claims Court is intended to be a simple source of access to justice. For decades, that has meant that many, if not most, parties (other than debt collectors) represented themselves.

But this idea started when Small Claims were truly small. For much of the province, that meant $400.00. In Thunder Bay and other districts, the limit was $1000.00.

At that time, the monetary jurisdiction of the District Court was $25,000.00. District Court judges were federally appointed full time judges who happened to reside in Thunder Bay, or other locations with courthouses. Through legal sleight of hand, they could sometimes sit as “local judges of the Supreme Court”, and hear any size of case. To appear in District court, almost everybody hired a lawyer. The Rules were strict and technical.

But even then, District Court judges seldom sat in Small Claims Court. It was the turf of “deputy judges” – local lawyers appointed to sit part time.

In 1990, District Courts were merged with the Ontario Supreme Court (not to be confused with the Supreme Court of Canada) in the Superior Court, which sits regionally. Magically, those District Court judges became Superior Court judges, with no limit on their monetary authority.

Now the Small Claims limit is $35,000.00. But, at least in the Northwest region (Thunder Bay, Kenora, Fort Frances and smaller communities) the cases are still heard by deputy judges.

Small Claims Court is still supposed to “hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.”

The Rules of Small Claims Court are simpler and more flexible than Superior Court. The forms are more user friendly.

So lots of people still represent themselves. But we also see more lawyers appearing. Because, if the amount is what 30 years ago deserved having a lawyer deal with it, that much has not changed.

How do you decide what is right for you? Here are ten things to think about before you make that decision. There are no doubt more, some of which are specific to your case.

  1. Should you be in Small Claims Court at all? The remedies in Small Claims are limited to the return of property of payment of money. If you want something else, you need to be in Superior Court. A lawyer understands the proper remedy choice.
  2. How much is your claim really worth? Lawyers can estimate that better than you can. Even if your claim is potentially higher than $35,000.00, you still might want to go to Small Clams court which is faster and cheaper, but you need to ‘abandon’ the amount over $35,000.00. We often tell people this is a good idea, but deciding that depends on an objective look at your case’s true value.
  3. Are you good at paperwork? The forms may be simpler, but sometimes winning your case depends upon telling the story well in writing. And not filing the correct forms can still cause you to lose without a hearing.
  4. Are you good at public speaking? In most cases, you will need to tell your story twice – at a settlement conference, and at trial. Most lawyers love to tell stories. The rest do real estate. Just kidding. But seriously, advocacy is not for everybody.
  5. In addition to telling your story, you may need to call witnesses, and cross-examine opposing witnesses. This is a skill good lawyers take time and training to develop. It is not easy, but it is often important.
  6. Do you know what witnesses you need?
  7. Do you know what documents you need? These two points go together. Each case has essential things you have to prove. Lawyers are trained to spot those issues, and plan how to ‘fill the holes’. With higher amounts in issue, the need for expert evidence is taken more seriously.
  8. Is there a limitation issue? If you are the defendant, you need to spot it, and raise it. If you are the Plaintiff, you need to understand how to argue that you started your claim on time. Limitations law is very technical. Arguing technicalities is what lawyers do.
  9. Does the case turn on a legal argument? The simpler procedure in Small Claims is ideal for fact based disputes, but with the higher limits, there are more complex arguments. Lawyers not only love to argue, they know how to do it well.
  10. Does the other side have a lawyer? This is not a deal clincher, but it is always nice to have a level playing field.

Costs for legal representation in Small Claims may be ordered based upon the amounts in dispute. If you win, and have a lawyer you will often get judgment for a representation fee of fifteen per cent of the claim amount. At $35,000.00, that is $5,250.00. That would go a long way towards paying a lawyer.

I sometimes explain why lawyers, like other professionals, are worth it by saying “would you perform brain surgery on yourself?” Well, Small Claims might not be brain surgery, but it is a lot more than bandaging a cut.

Even if you do not need a lawyer to represent you, we are often willing to help you sort out some of the issues such as those raised in this article, on a limited retainer, for a modest fee.

How do you know if you need a lawyer? Probably the best way to find out is to speak to one. At Weilers Law, we are here to help you. We are happy to speak with you. Just give us a call.