Author: Heather Douglas
This article originally appeared in “Heather Douglas. Law and Innovation”, November 17, 2019.
Litigation Help thanks Ms. Douglas for her permission to reproduce her article here.
Litigants who started a claim in the Superior Court can seek to transfer their case to the Small Claims Court if the amount sought is worth $35,000 or under.
Under the Courts of Justice Act, section 23, a litigant may transfer their case to the Small Claims Court by: filing with the local registrar of the Superior Court of Justice a requisition with the consent of all of the parties. To succeed, the claim must be for (a) money or the recovery of personal property and (b) the amount claimed must be equal to or less than $35,000. The requisition form can be found on the Ontario Court Forms website.
There is no requirement for litigants to transfer their case. However, plaintiffs have an incentive to transfer their claim to the Small Claims Court if they are seeking an amount for $35,000 or under. Under Rule 57.05, of the Rules of Civil Procedure, the court may order that the plaintiff shall not recover any costs if they recover an amount within the monetary jurisdiction of the Small Claims Court.
I anticipate that if you started your lawsuit but haven’t had your trial yet, you may be able to seek more money, up to $35,000. Under Rule 12 of the Rules of the Small Claims Court, “A plaintiff’s or defendant’s claim and a defence to a plaintiff’s or defendant’s claim may be amended by filing with the clerk a copy that is marked “Amended”, in which any additions are underlined and any other changes are identified.”
Filing and service of the amended document should take place at least 30 days before the originally scheduled trial date, unless, “(a) the court, on motion, allows a shorter notice period; or (b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1).” The Ministry of the Attorney General will likely post a bulletin on this matter in the coming months.
(Views are my own, and do not reflect the views of any organization and are not intended to be legal advice.)