Small Claims Court
Small Claims Court provides a simpler and less expensive way to resolve disputes. It is designed so people can take their cases to court without the help of a lawyer, although individuals may still choose to have a lawyer represent them. The information in this booklet is designed to guide you through the small claims court process.
Information and the required forms can also be found at www.sasklawcourts.ca under the heading "Provincial Court." The court staff at Small Claims Courts can provide information and assistance as well.
If you are starting your case in Saskatoon you will find detailed instructions specific to Saskatoon and the required forms at www.sasklawcourts.ca under the heading "Saskatoon Small Claims Project." It is important to look at these special instructions for Saskatoon because additional documents and lengthier notice periods are required in some cases.
This booklet, information on the Saskatchewan Courts website and Small Claims Court staff can only provide general legal information. If you require legal advice about your situation you should contact a lawyer.
Choosing Small Claims Court
Although Small Claims Court offers a simpler and less expensive means of resolving disputes it cannot be used in every situation. Things like the monetary limit, the type of claim and limitation periods must be considered. As well, not every case that can be taken to court should end up in court. Settling the matter outside of court can be less expensive, less time consuming and allows the parties, not a judge, to find an acceptable solution. Another factor that needs to be considered is whether you are going to be able to collect on a judgment and the effort and expense of collecting.
In Small Claims Court there is a limit to the amount you can recover. This amount is called the monetary limit. The monetary limit is currently $30,000. You may claim in excess of the monetary limit but the maximum that can be awarded is still $30,000. If you use Small Claims Court to claim for the maximum amount you cannot start another action in Small Claims Court or any other court to recover more money related to the same claim.
Types of Claims Heard in Small Claims Court
|Small Claims Court cannot be used to deal with every type of claim.|
Small Claims Court deals with claims for debts or damages, recovery of personal property and consumer claims. Typical cases may include claims arising from...
- motor vehicle accidents
- real estate transactions
- NSF cheques, or other debts owing, including failure to pay where goods are sold on credit or services are performed on credit
- defective goods, workmanship or services
- loss of or damage to goods
- insurance policies
- breach of contract
Certain claims cannot be heard in Small Claims Court, including...
- claims where the title to land is brought into question
- actions against a bankrupt
- actions for libel or slander, malicious arrest, malicious prosecution or false imprisonment
- family law matters including actions concerning family property, child support or spousal support
There are time limits on when a court action can be started. Usually it is two years from the time the loss or injury is discovered. For debts it is usually two years from the time the last payment was made or the debtor acknowledged the debt in writing. Determining limitation periods can be difficult and the rules are not the same for every kind of lawsuit. If you have a question about time limits you should consult a lawyer.
Alternatives to Court
|There are ways to settle a matter without going to court that may be less time-consuming and less expensive.|
Out-of-court options can be considered before a court case has been started and they can also be considered at any time during the court case - up until judgment, as a way to avoid any further court proceedings.
Make a Proposal for Settlement
|Either party can make a proposal to the other party for settling the matter at any time.|
If you are being sued and you agree with the claim against you there is no need to go to court. You can contact the other party and simply pay the claim. If the claim is for something other than money, such as the repair or replacement of defective goods, you can make a satisfactory arrangement with the other party.
If you are the person who is suing someone you can offer to stop the lawsuit if the person pays you some or all of the money owed or agrees to do something else, such as repair the defective goods.
If either party wants to suggest a compromise to the other party they can do this without affecting the outcome of the case in the event it does go to court. To do this the party can put the suggestion in a letter to the other party and mark it "without prejudice."
Parties do not have to agree on all matters. They can agree on some parts of the claim and have the rest decided by the court. If the claim is to be paid over time but the parties are unable to agree upon how that will be done, they can go to court and have the judge help them work out a payment plan. If installment payments are agreed upon, any court proceedings that have been started may be adjourned provided that the payments are being paid on time.
If you and the other party are able to come to an agreement it is important to put the agreement in writing, referring to the court proceedings by number (if proceedings have been started). Having the agreement in writing can help prevent misunderstandings concerning what was agreed to. Settlement agreements should be dated and signed by each party, in the presence of a witness if possible.
If court proceedings have been started and the matter is settled, advise the court of the settlement immediately, so that the claim can be discontinued and court dates may be reassigned.
If the parties to a claim cannot come to an agreement on their own they may want to try mediation. Any party to the dispute may suggest mediation. In order for mediation to proceed, both parties must agree to participate.
You can talk to a mediator before deciding to go ahead with mediation. They may be able to answer your questions and help you decide if this is the right process for you. A mediator does not replace a lawyer. If you need legal advice during the mediation process you will still need to go to a lawyer. In some areas, such as Saskatoon, a mediator may be provided at no charge.
If you think you would like to try mediation you can find a mediator by contacting the Dispute Resolution Office (www.justice.gov.sk.ca/disputeresolutionoffice), talking to friends who have used a mediator or looking in the yellow pages of the phone book or searching online directories.
To start the mediation process either you or the mediator can contact the other party to see if they are willing to participate in mediation. The parties and the mediator can then agree on when to meet and start the process. Any court proceedings that have been started may be adjourned while you are in mediation.
A mediator will meet with all parties and help you discuss the issues and identify options for resolving the conflict. You have the chance to work out a solution that is agreeable to both sides in a less adversarial setting. You are in control of the terms of that agreement.
If you reach an agreement as a result of mediation you have a number of options with respect to any court proceedings that were started before mediation. Before agreeing to any of these options you should talk to the court staff. After mediation the parties may agree to...
- adjourn the case until the agreement is carried out
- take any remaining unresolved issues back to court
- file the agreement with the court and ask for a consent judgment
Consider Collection before You Sue
It is important to consider your chances of collecting on a judgment before you go to the trouble and expense of starting a court action. It is also important to remember that collecting on the judgment will be up to you and at your expense. The Court of Queen's Bench, not Small Claims Court, deals with enforcing judgments.
You will want to consider the financial situation of the person you are thinking about suing. Consider whether the person has a job, owns land or has other things of value. Also consider if the person owes other people money. In some cases other debts will be paid before any money will come to you.
You may also want to look at whether the person will have more money or assets in the future. A judgment is valid for ten years and, if registered with the Court of Queen's Bench, may be renewed for further ten year periods. If the person later gets a job, has a better year in business, inherits money or buys assets, you can take enforcement action based on your judgment at that time.
For more information on how to collect on a judgment see PLEA's booklet Debts and Credit, available at plea.org.
How to Start a Small Claims Action
To start a Small Claims action you have to go through the steps outlined below. These steps include filling out forms, gathering documents and filing the claim with the court.
Before you even go to Small Claims the first step is to send a Demand Letter. This is a letter explaining to the other person what they would need to do to settle the matter. It can be sent by regular mail. It should include...
- name and address of the person you want to sue
- your name and contact information
- nature and amount of the claim, including important background facts
- what the person would have to do to settle the claim
- deadline for compliance with your demand
- statement that if the claim cannot be resolved satisfactorily, you intend to file a claim in Small Claims Court
If the person does not respond to your demand letter, or does not agree to what you require to settle the matter, you may decide to start an action in Small Claims Court.
Statement of Plaintiff's Claim
|A Small Claims Court case is started with a Statement of Plaintiff's Claim that outlines the reasons you are suing and what remedy, like payment of a certain amount of money, you are requesting. The claim should only contain enough information to identify why you are suing and what compensation you want. It should not contain evidence or tell a story.|
You will need the correct name, and address for the person you are suing. It is helpful if you also have phone numbers and email addresses for the parties.
At the top of the page put the heading "Statement of Plaintiff's Claim."
Then organize your claim into paragraphs containing the following information:
- Describe the Plaintiff. Use your full legal name with no initials. Include where you live (city, town, RM etc.).
The Plaintiff, Mary Ann Jones, resides in the Town of Leask, Saskatchewan.
- Describe the Defendant. Use their full legal name with no initials. Include where they live (city, town, RM etc.)
It is very important to properly name the person you have a claim against. If you do not name the right person in your claim you may get a judgment that cannot be enforced against the person who owes you money or services.
If you are claiming against an individual you must use the person's legal name. Do not use nicknames, shortened versions or initials. If your claim is against more than one individual you must correctly name everyone you are claiming against. You may claim against more than one individual in the same action if the claims are related.
The Defendant, Jane Marie Smith, resides in the City of Saskatoon, Saskatchewan.
- Corporate Defendants
The defendant may be a corporation. If a business is a corporation you can usually tell because the company's name will end with "limited," "corporation," "incorporated" or an abbreviation for one of these names like Ltd., Corp. or Inc. If you are claiming against a corporation you must use the corporation's correct legal name and confirm that it has a registered office in the province, as well as the address of the registered office.
A Profile Report on the corporation from the Corporate Registry will have this information. Some courts require you to file the Profile Report with your claim. Profile Reports can be printed from the Corporate Registry website (www.isc.ca/corporateregistry) if you have the correct name and entity number of the corporation. They can also be ordered by phone (306-787-2962) or fax (306-787-8999). A fee is charged by the Corporate Registry for this information.
The Defendant, ABC Repairs LTD., is a company incorporated in Saskatchewan with a registered office at 123 Anywhere Place, Saskatoon, Saskatchewan, and carries on business in Saskatchewan.
- Unincorporated Businesses
The defendant may also be an unincorporated business carried on under a different name than its owner. If you are claiming against a business that is not incorporated you should name both the business and the individual who owns the business.
The Defendant, John Richard Black resides in the
City of Regina, Saskatchewan, and carries on business under the name of Black's Autobody.
- Give a brief outline of the original purchase, agreement or contract and describe what went wrong and why you are suing.
- Describe what steps you have taken to resolve the issue. Refer to the demand letter by date and state what was demanded of the defendant and what (if anything) the defendant did in response to the letter.
- Outline, in point form, what you are asking the court for, including...
- judgment in the sum of (the amount of money you are asking for)
- interest pursuant to the Pre-Judgment Interest Act or an agreement (the court can order the defendant to pay you interest for the time between when the defendant first owed you the money and when you get judgment)
- the filing costs of your proceedings (your filing fee)
- such other costs as the Honourable Court may deem just
You must sign the claim and print your name below your signature. You must also include an address where court documents can be served on you.
Filing the Claim
Once you have prepared everything you need to pursue your claim, take your documents to the Provincial Court nearest to where the incident happened. If you cannot tell where the incident occurred, for example, the goods were ordered over the internet, take your documents to the Provincial Court nearest to where the other party lives.
A list of the Provincial Courts offices can be found at www.sasklawcourts.ca under the tab Provincial Court/Court Offices or in the blue pages of the phone book under Government of Saskatchewan "Courts."
Provincial Courts are open from 8:30 am to 4:30 pm. Although appointments are not always required it is a good idea to phone the Court first and make sure a Small Claims Clerk will be available.
The clerk will fill out an intake form. You will need to provide the name, address and phone number of the person(s) you are suing. If you are suing a corporation you should bring a copy of the Profile Report.
You will also need to list any supporting documents by date with a brief description of each one and file a copy of all your documents. You keep the originals for presenting in court. Supporting documents could be things like a bill of sale, an agreement between you and the defendant or a repair bill. You should also have a copy of your demand letter.
There is a fee for filing. It may be paid by cash or cheque. Credit cards are not accepted. Cheques are payable to Small Claims Court. The fee is based on the amount of your claim:
|$2,000 or less||$20|
|$2,001 - $9,949||1% rounded to nearest dollar|
|$9,950 - $30,000||$100|
|The Summons is issued by the court and sets out a court date.|
Once you file your claim the court will issue a Summons. The Summons tells the defendant that they are being sued, and the place, time and date the defendant and you are required to go to court. Your claim is attached to the Summons.
After the court issues the Summons, one copy is kept on file and two copies are mailed to you or may be picked up at the court house. You must then serve the documents on the other party.
Service of Court Documents
When you make a claim you are responsible for notifying the other person of the claim. You do this by serving the claim on them after you have filed it with the court. You must then prove to the court that you have served your claim on the other party. The court will not proceed with your claim unless you prove that you have served the other party.
What to Serve
To make a claim you must serve...
- Summons (tells the defendant when and where to appear in court)
- Statement of Plaintiff's Claim
- additional information and documents as required by the Small Claims Court office
When to Serve
You must serve the above documents on the other party at least 10 clear days before the court date. The Saskatoon Small Claims Court recommends that documents be served 20 clear days before the court date. "Clear days" means you do not count the day you served the document or the day the person has to appear in court.
The earlier you serve the defendant the better. The defendant may need time to prepare a response to your claim. If the defendant has not had enough time to prepare they may ask for and receive an adjournment of the court date.
If you are unable to serve the defendant at least 10 clear days in advance, you must advise the court. A new date will be given and a new Summons prepared at no additional cost, so that you will have more time to serve the defendant. If you do not contact the court to change the date your claim could be dismissed.
How to Serve Documents
|You can serve the documents any way that allows you to prove service, including registered mail, fax or personal delivery by yourself or a process server.|
If you are suing more than one person for the same claim you must serve each party to the claim separately. Even if the people are married to each other they must be served separately.
Personal delivery service may be made by any person 18 years of age or over. Service is made by giving the person a copy of the documents. It is not necessary to obtain a signature from the person. You can just hand the documents to the person and tell them they are being served with court documents. If the person refuses to accept the documents you should tell them that they are being served with court documents and explain what the claim is about. You should then leave the documents as close to the person as possible.
You can hire a process server or the Sheriff's Office to serve the court documents for a fee. Process servers are listed in the yellow pages under Bailiffs and Sheriff's Offices are located in Queen's Bench Courts.
Special Considerations when Serving Documents
|There are special rules for serving certain people or organizations.|
You can serve a minor (a person under 18 years of age) by giving one copy of the documents to the minor and another copy to the parent, guardian or any other adult person at the address where the minor lives.
Special rules apply to serving government bodies. The court staff will explain the requirements for serving a Crown Corporation, a municipality or the Government of Saskatchewan.
Serving a Corporation
Service on a corporation can be carried out by leaving a copy of the court document with any officer or director of the corporation. You can also serve a clerk, manager, agent or other representative at, or in charge of, any office or any other place where the corporation carries on business in Saskatchewan.
You may also serve a corporation by registered mail by delivering a copy of the document to the registered office or any attorney of the corporation appointed pursuant to section 268 of The Business Corporations Act.
The corporate "Profile Report" will provide you with the necessary information about the names of the officers and directors of the corporation, the address of the registered office, as well as the name of any attorney appointed with respect to an extra-provincial corporation, pursuant to section 268 of The Business Corporations Act.
Serving a Lawyer
A court document may be served by leaving a copy with a party's lawyer if the lawyer accepts service by signing a copy of the document, indicating that they are the lawyer for that person.
Service Outside of Saskatchewan
A document may be served outside Saskatchewan, without the necessity of a court order, in the same circumstances in which it would be allowed in the Court of Queen's Bench. More information may be obtained from the court staff.
Problems with Serving Documents
You may be unable to serve documents. This could happen if you do not know where the person you want to serve lives and cannot locate them. It could also happen when you know where the person lives but you still have not been successful in serving them, perhaps because they are avoiding service.
In these cases you can apply to court for an order allowing substituted service. This order will allow you to serve the person through different means.
When applying for an order for substituted service you need to prepare a statement for the court outlining why you cannot serve the person. This should include all the steps you have taken to locate and serve the person and the costs to you so far in taking these steps. It should also include a proposed alternative way you think would work to serve the person such as...
- serving a family member or someone else with whom you believe the party is in regular contact
- delivering the documents to the last known address of the party
- publishing a notice in a newspaper
If you think an application for substituted service is necessary, speak to the court staff.
You must prove that the other party was served by completing an Affidavit of Service. An Affidavit of Service must be sworn before a Commissioner for Oaths or a Notary Public. You can find these individuals in the yellow pages of your local phone book or through online directories.
The Affidavit of Service will vary depending on how the documents were served.
- If the documents were served by registered mail you must attach a Signature Copy to the Affidavit of Service. The Signature Copy shows that the other party signed for the documents and is available for no charge at Canada Post's website (www.canadapost.ca) or for a fee by calling customer service at 1-888-550-6333.
- If the documents were served by fax the transmission record must be attached to the Affidavit of Service.
- If the documents were served in person the Affidavit of Service must be filled out by the person who served the documents. If you served the documents yourself you can testify in-person instead of preparing an Affidavit.
- If someone from the Sheriff's office served the documents they will fill out a Certificate of Service instead of using the Affidavit.
- If the documents were served on the other party's lawyer service is proved by producing the documents signed by the lawyer accepting service and an Affidavit is not required.
If you will be asking the court to make a judgment, even though the other party did not respond or appear, make sure that you can show the court that they actually received the documents. In these cases fax service may not be the best method.
It is important to file your proof of service with the court as soon as possible. This allows the court to know if all the documents have been served in time for the court date or whether an adjournment will be required.
Keep a copy of the court documents that have been served and filed, as well as proof of service, for your records.
Costs of Service
|If you are successful in court, you may be reimbursed for the reasonable costs of service.|
Keep receipts or invoices that show costs you incurred when serving documents. You can present these to the court when your costs are being discussed. If the costs of service were increased due to the distances travelled or the number of attempts before service was successful, this may be explained in an affidavit or invoice and may be referred to when seeking an order for costs.
The judge will want to be satisfied that the costs are reasonable having regard to all of the circumstances, including the amount of the claim and the methods of service available. For example, if you used a process server instead of registered mail you will have to justify the extra cost.
Responding to a Claim
If you are sued in Small Claims Court, there is a process you need to follow to dispute the claim. You can also make a counterclaim of your own. Either way it is important to respond to the claim because if you do nothing the other party can win the case and receive a judgment against you without you even being there.
If you are interested in settling the matter without going to court see Alternatives to Court for some suggestions about how to do this.
Disputing the Claim
If you want to dispute the claim you must complete a Dispute Note, sometimes called a Statement of Defence, and file it with the court at least 3 days before the court date. You should also serve the Dispute Note/Statement of Defence on the other party before the court date to give the other party time to consider your defence and avoid the case being adjourned.
The Saskatoon Small Claims Court asks that the Dispute Note be served on the plaintiff and then filed with the court at least 10 clear days before the court date. Clear days mean you do not count the day you served the documents or the court date when calculating the number of days.
For more information see How to Serve Documents.
The Dispute Note/Statement of Defence explains why you disagree with the claim. Fill in the name of the plaintiff (the person suing you) and your name (the defendant.) Respond to the plaintiff's claim paragraph by paragraph. Number your paragraphs.
If you are relying on documents to support your defence you also need to number your documents in the order of occurrence and make a numbered list of them. File the document list and copies of the documents with the court when you file the Dispute Note.
|If you believe that the plaintiff owes you money you can make a counterclaim as well as disputing the claim or instead of disputing the claim.|
The judge will look at the counterclaim and the plaintiff's claim at the same time and decide who owes money to whom. The amount of one claim is set-off against the amount of the other claim. For example, you may be sued by someone for an unpaid repair bill for your car. You may want to defend the claim because the work was not satisfactory. If you paid someone else to fix the car properly, you could start a counterclaim for that cost.
You can counterclaim for more than the monetary limit, which is currently $30,000, but you cannot get a judgment for more than the limit. This could happen if, for example, the plaintiff sues you for $30,000 and you claim they owe you $40,000. If the judge upholds both claims you would get a judgment for $10,000. However, if the judge found that you did not owe the plaintiff anything you could only get a judgment of $30,000 not the full $40,000 you were asking for. If you get a judgment for the maximum amount in Small Claims Court you cannot sue in Small Claims or any other court for the rest. If you decide not to use Small Claims Court for your counterclaim you can sue in the Court of Queen's Bench for the whole amount.
Notice of Counterclaim
The Notice of Counterclaim and Statement of Defendant's Counterclaim are contained in one document. The Notice of Counterclaim must contain the following (found in the Summons)...
- name and address of each plaintiff
- date and time of the court date (same as on the Summons)
- your name and address
Statement of Defendant's Counterclaim
In numbered paragraphs, provide a concise outline of the circumstances that support the counterclaim, containing dates, times, locations, etc. State the exact amount you are claiming by counterclaim.
Number each page and date and sign at the bottom of the Statement of Defendant's Counterclaim. Print your name under the signature line.
Provide the address for service if different from the address indicated in the Summons issued and served with the Plaintiff's Statement of Claim.
Service of Counterclaim
You should serve and file the Notice of Counterclaim and Statement of Defendant's Counterclaim on the plaintiff at least 3 clear days before the next court date. The Saskatoon Small Claims Court recommends 10 clear days. Clear days mean you do not count the day you served the documents or the court date when calculating the number of days. See How to Serve Documents for more information.
A counterclaim can be presented orally when the case goes to court. However, the court may adjourn proceedings and may order costs against you if you could have presented the counterclaim earlier and/or the plaintiff is disadvantaged or inconvenienced.
Third Party Claim
|If someone is suing you but you think another person is responsible for the loss you can add them into the claim as a defendant.|
Notice of Third Party Claim
If you want to add a third party as a defendant you must apply to the court for a Notice of Third Party Claim and Statement of Third Party Claim. The clerk will assist you in preparing a concise written statement of the third party claim. A judge will then review the third party claim. If the judge is satisfied that there may be a valid third party claim, the judge will issue a Notice of Third Party Claim and a Summons.
Service of Third Party Claim
The third party must be served with the Notice of Third Party Claim and Statement of Third Party Claim. You may also be required to serve all other documents such as the Statement of the Plaintiff's Claim, Dispute Note/Statement of Defence and any other court documents that have been filed.
This notice and accompanying documents must be served on the third party, as well as any other parties to the action, at least 10 days before the court date. The Saskatoon Small Claims Court requires 20 clear days. In any case, it is a good idea to serve these documents as soon as possible to avoid the party asking for and receiving an adjournment. See How to Serve Documents for more information.
Going to Small Claims Court
|This section outlines the process when you appear in Small Claims Court.|
Case Management Conference (CMC)
|A case management conference is required before a date will be set for trial unless a judge decides it would not be helpful to have one. In most cases the court date in the Summons will be for a CMC. The Summons will indicate whether the court date is for a CMC or a trial.|
The purpose of the CMC is to try to settle some or all of the issues. In some cases this may mean that a trial is not necessary; in other cases it may mean that the trial will be shorter and simpler. If all the issues cannot be settled at the CMC and a trial is necessary the CMC will be used to prepare for the trial.
|The CMC takes place at the court house. All parties to the action must attend the CMC and must have the authority to settle the matter.|
You may bring a lawyer or agent to the CMC. Witnesses are not required and should not be brought to the CMC unless the judge has permitted it. You may bring a support person with you but it will be up to the judge to decide who remains in the case management conference room.
If you do not attend the CMC, your Claim, Counterclaim, Statement of Defence/Dispute Note or Third Party Notice, as the case may be, may be dismissed and/or judgment may be entered against you.
Preparing for a Case Management Conference
All documents that you will rely on to support your case should be filed with the court and served on the other party well before the CMC. Serving the documents ahead of time can prevent delays that may be required if one party has not been fully informed about the case before the CMC. You must organize and bring all documents to the CMC even if you have already served them on the other party or parties.
Review your case and the other party's case and try to anticipate the questions you may be asked. If the other party does not attend the case management you may be in a position to obtain judgment or have the case dismissed, so be prepared to present your case and produce relevant documents to support your case.
If the judge directs that the matter proceed to trial a date may be set at this time. Bring your personal calendar and be familiar with the availability of your witnesses.
Case Management Procedure
At the CMC both parties tell the judge about their case and the judge talks to them about their case, the law that applies and possible solutions. Sometimes the judge will meet with each party separately. The procedure for a CMC can vary from case to case. You will be encouraged to discuss the issues in an open but courteous manner. Direct your remarks to the judge rather than the other party.
A CMC may be continued to another date if one or both parties come unprepared or the judge decides that further discussions or actions may assist in possible settlement. It can also be continued if more discussions are needed before the parties are ready for trial.
There are rules that are designed to allow the parties to speak freely during the CMC without fearing that they are prejudicing their case should it proceed to trial. The judge who conducts the CMC will not be the trial judge if the case goes to trial. All settlement discussions, including the opinions of the judge, are "off the record" so they cannot be used as evidence if the case goes to trial. The only things that will be communicated to the trial judge are any points of agreement between the two parties reached during the discussion.
During the meeting the judge may give the parties input concerning their case including the judge's...
- assessment of the strengths or weaknesses of each party's evidence
- opinion of the law that might apply
- suggestions for a possible resolution
Settling a Case at Case Management Conference
|After receiving input from the judge, the parties may choose to settle their claim on any terms that they agree to.|
Your settlement may be recorded as an agreement or as a final judgment of the court. If lawyers are involved, the judge may ask them to complete the necessary settlement documents. Court proceedings may be adjourned until the settlement is complete.
Preparing for Trial at Case Management Conference
|If the parties do not agree to a settlement the CMC will be used to set a trial date and prepare for trial.|
The trial judge may award certain costs if the matter could have reasonably been settled in the CMC but was not.
The parties must give the judge information about the trial including...
- the number and purpose of witnesses each party plans to call
- whether there will be expert evidence or witnesses and the names, occupations, title/position of any expert witnesses
- whether either party will be represented by a lawyer
- if there are documents that need to be exchanged
- how exhibits will be presented
- whether there are any special requirements (for example, an out-of-town witness that wants to give evidence by telephone)
Trial management will also be discussed including such things as...
- determining those issues which you can agree upon and therefore do not require evidence
- employing a mutually agreed upon expert
- agreeing to exchange additional information
- discussing the evidence required including witnesses and documents
- determining the amount of time required for trial
The parties are free to continue to try to settle the matter on their own. If the matter is settled the plaintiff should notify the court in writing. A lot can happen between the case management conference and trial and parties may be required to meet again for case management prior to the trial date to determine if there is a renewed interest in settlement discussions, and to discuss case management and confirm that the parties are ready for trial.
At the trial both parties will have the chance to tell their side of the story. You can present your own case or be represented by a lawyer. You present your case by producing relevant documents, calling witnesses and/or testifying yourself. Once both parties have presented their cases the judge will make a decision based on the law and the evidence admitted in court.
It is the plaintiff's responsibility to prove that the defendant owes the amount of the claim or should pay damages for some wrongdoing. Similarly it is the defendant's responsibility to prove their counterclaim or third party claim.
Preparing Your Case
|Before your trial you should review your case and organize your witnesses and your supporting materials.|
As soon as a trial date is set you should begin your initial preparation. Follow up on anything that arose out of the CMC and comply with any directions from the judge.
Make sure that you will be available and notify all of your witnesses of the trial date. Serve a witness with a subpoena if you have any doubt about them appearing voluntarily. Call the court for advice, immediately, if you discover that...
- you or a witness will not be available on the trial date
- you overlooked a document that you intend to rely upon at trial and it has not been filed with the court or served on the other party
Review all of the information that has been filed with the court and served on the other party, including the Statement of Plaintiff's Claim, the Statement of Defence/Dispute Note and any documents.
Based on your review of the court documents and the facts of the case make brief notes of the important points that should be covered during your testimony, the testimony of your witnesses and the testimony of the other party or its witnesses. It is a good practice to meet with your witnesses to go over their testimony before the trial. Try to anticipate questions from the other party or the judge. You may refer to these notes at trial, however, you may not read from them during your own testimony.
Getting Witnesses to Appear
It is the plaintiff's and the defendant's responsibility to notify their witnesses of the date, time and place of the hearing. If a witness does not want to appear voluntarily, a subpoena may be issued. A subpoena is an order issued by the court stating that the witness must appear in court on the trial date. There is no charge for issuing a subpoena. Disobeying the subpoena is against the law.
If a witness who has not been subpoenaed fails to appear for court you are not likely to receive an adjournment.
It is the responsibility of the plaintiff and the defendant to serve the subpoena on their witnesses and to offer to pay the witness fee prescribed by law. The subpoena must be served personally by delivering a copy of the subpoena and the prescribed witness fee.
The witness fee for a professional or a consultant is currently $40 and for other witnesses it is currently $15. Witnesses who live more than ten kilometers from the urban municipality where the court is located are also entitled to travel, accommodation and meal expenses. Court staff can provide you with the current rates for these expenses.
Witnesses Testifying by Phone
Sometimes witnesses may be permitted to testify by phone. If you want to have a witness testify by phone you need to get permission from the court before the trial date. This can be requested during the case management conference. If you did not bring it up during case management you can ask the court staff how to get permission before your trial date.
Expert witnesses or witnesses who do not live or work in the city are often permitted to testify by phone. This is done for the convenience of the witnesses, and in order to keep the costs of presenting a case to the minimum.
There may be practical concerns about a witness testifying by phone, particularly if they will be referring to documents or photographs. The practicalities of this may be discussed at the case management conference or with the court staff.
While you may receive preliminary permission to present a witness by phone, the trial judge may later require that the witness appear in person, especially if testimony by phone proves confusing or unsatisfactory. The court usually requires the presence of witnesses at trial if their testimony concerns facts which are disputed.
Expert witnesses can give opinions based on their qualifications. For example, if a judge qualifies a witness to give expert testimony regarding the repair of a motor vehicle, that witness can give an opinion about proper repair procedures, repair work performed and repair work required.
If you want to use an expert witness, you must tell the judge at the case management conference. You must obtain a summary from the expert witness that lists their qualifications, including education, experience and courses attended.
You must also provide the opposing party with either a written report authored by the expert or a summary of the anticipated testimony of the expert. This information must be provided to the opposing party as soon as possible before the case management conference or trial, or as directed by the case management judge.
Both the plaintiff and the defendant should appear in person in court on the day of the trial. The claim may be dismissed if the plaintiff does not show up. If the defendant does not show up judgment against the defendant may be given. A case cannot be adjourned, even if the parties agree, without the permission of the court. In some circumstances the party that causes or seeks an adjournment can be required to pay the costs incurred because of the delay.
Before the trial begins the judge will explain the general procedure. Although Small Claims procedure is less formal than other courts, the judge's concern is to see that the trial is conducted fairly, while still following the rules of evidence and procedure to the extent necessary to provide a fair trial. Throughout the trial, the judge is addressed as "Your Honour."
The plaintiff will speak first and present their case. The judge calls the defendant to present their side of the case after the plaintiff's case is finished.
Your case to the court is presented through evidence. Evidence may be given by witnesses, including you, and by presenting materials to support your case, such as documents, diagrams and photos. It is the quality of your evidence that is important not the quantity. For example, it is usually not necessary to have more than one witness testify to the same facts.
Some evidence may also be presented by agreement. This can happen when certain evidence is not in dispute. For example, both parties may agree on what work or services were requested and the time frame for the work or services, even if they disagree about the quality. Determining which facts can be agreed upon can be discussed at the case management conference or at the outset of the trial. The judge may also invite the parties to indicate their agreement regarding the filing of routine evidence.
The judge will determine whether evidence you propose to submit is relevant and reliable. Relevant means that it would affect the outcome of the case. For example, you may not be allowed to call another dissatisfied customer of the defendant because this would not be considered relevant to your case against the defendant.
Reliable means that the evidence has credibility or is believable. Second-hand evidence is called "hearsay" and is generally not allowed because it is not as reliable as first-hand evidence. If a witness tries to testify about what someone, other than the other party, said about the case it is hearsay. If a document is presented by someone other than the person who created the document this is also hearsay. Hearsay evidence may be admitted if the judge has found that it is both necessary and reliable.
Questions about hearsay evidence should be discussed at the case management conference. If you don't have a case management conference you may wish to raise it with the court staff and ask the judge at the beginning of the trial about presenting hearsay evidence.
If the judge rules that your evidence cannot be presented because it is not relevant and/or reliable you must accept that ruling and move forward.
Most people will have materials to support their case. This could include things like a contract between the parties, an invoice, a diagram you have made to explain your case or a photograph taken of something relevant to the case. All your supporting material should be organized by numbering each document and creating a master list.
For ease of reference and simplicity, the master list with the attached numbered documents may be presented to the judge at the outset of the trial and then presented to witnesses during the course of the trial. Even though your documents have been presented at the outset of the trial with the master list, the judge may still rule that some of these documents may not be admitted as evidence in the trial. This means that the judge will not rely upon those documents when deciding the merits of the case.
When your materials are entered as Exhibits they become evidence in the case. To enter a document as an Exhibit you normally need to call the person who prepared the document, created the diagram or took the photo (or was there when it was taken) etc. as a witness. The original document is shown to the witness who created it and then given to the judge. If the document has not yet been marked as an Exhibit, you should show the witness the document which you intend to have marked as an exhibit. The judge will provide further guidance, as needed.
All exhibits entered into evidence are kept by the court until the appeal period has passed. If no appeal is taken, the Exhibits can be returned by court order.
Normally both the plaintiff and the defendant start their cases by testifying themselves so the judge has an overview of the case. Other witnesses are not normally allowed to be present in the court room until it is their turn to testify. An expert witness may sometimes be allowed to hear the testimony of other witnesses. This may be the case if the testimony of other witnesses will form the basis for the expert's opinion.
Prior to testifying in court, all witnesses must swear an oath to tell the truth or affirm that they will tell the truth. If you give false evidence, having been sworn or affirmed, you may be charged with the criminal offence of perjury. An expert witness must be qualified by the trial judge before testifying. You must also advise the trial judge of the area of expertise of your witness. Questions may be put to the witness, at the trial judge's direction, by the parties and the judge, before they are allowed to give expert testimony.
Each witness will be examined first by the party presenting them (examination-in-chief) and then may be questioned by the other party (cross-examination). The judge may also ask questions of the witnesses at any time.
When questioning your own witnesses, you must let the witness tell the story. Unless you are asking them something that is not in dispute, you should not ask a question for which the answer is simply yes. That is a "leading question." For example, "Did the defendant break your window instead of fixing it?" is a leading question. Instead, the question should be something like "What did the defendant do to repair your window?"
Cross-examination is when you ask the other party's witnesses questions. This is done after they have been questioned by the person who called them as a witness. The purpose of cross‑examination is to allow you to question the witness about testimony you disagree with and to allow you to possibly have the witness give some testimony that would support your case.
Unlike when you are questioning your own witnesses, when you question the other party's witnesses you may ask leading questions, provided they do not exceed acceptable bounds of court etiquette. Remember to frame your questions as questions and keep them as short and to the point as possible.
Once all parties have presented their evidence, each party may be invited by the judge to sum up their position. Arguments must be based upon the evidence presented to the court and any relevant legal point you wish the court to consider. If something has not been presented as evidence, you may not refer to it in argument.
It may be useful to make a list of points you wish to cover for argument. It is often evident to the judge what the arguments will be so your remarks may be quite brief.
When the judge makes the final decision about your case it is called the judgment. The judge may give judgment immediately after both the parties have finished presenting their evidence. In some cases the judge may reserve giving judgment. If the judge reserves judgment, the judgment will be mailed to the parties at a later date. Make sure the court has your current mailing address.
The plaintiff has to prove their claim. A defendant who is making a counterclaim or a third-party claim also has to prove their claim. For the judge to find in your favour, you must be found to have proven your case "on a balance of probabilities." This means the judge finds it is more likely than not that the other party is at fault and should compensate you. The judge may find that you have only proven part of your case "on a balance of probabilities" and only award you partial compensation. The judge may find that you have not proven your claim at all "on a balance of probabilities" and dismiss the case.
In deciding whether a party has proved their claim on a balance of probabilities the judge will consider and weigh all of the admitted evidence. This does not mean that a judge must accept all of your evidence or that of the other party. The judge may not accept some or all of the evidence presented by a witness or in a document, for a variety of reasons, including that...
- a witness may not be believed
- a document may not be clear
- the evidence may not be sufficiently reliable or clear
If a judge orders one party to pay money or take other action such as returning goods to another party, the judge may include a timetable for complying with that order. If a judgment doesn't include a timetable, any party can ask the judge to establish one. Timetables can state that the judgment must be complied with immediately or by a certain date. Where payment of money is involved, the timetable may set out a schedule for installment payments. If these terms are not complied with the entire amount owing becomes due immediately. A party may apply to the court for a Summons to change a timetable.
Each side will receive a Certificate of Judgment along with the judgment. A Certificate of Judgment will be given whether the case was settled in a case management conference or after a trial.
Costs are typically awarded at the conclusion of the trial, although in some rare circumstances they may be awarded at the case management conference. Costs are limited under The Small Claims Act. Lawyer-related costs cannot be awarded.
Costs may be awarded for...
- fee for issuing the summons
- reasonable expenses to serve documents
- witness fees
- telephone charges
- cost of Corporate Registry Profile Report
When deciding on costs the judge has a lot of discretion and can consider things like whether adjournments were necessary because a party was not prepared and whether a party did not comply with a court order.
|This section has information about steps that can be taken after judgment including setting aside a judgment, appealing and collecting on a judgment.|
Application to Set Aside Judgment
|If your claim was dismissed or judgment was given against you because you did not appear on a court date, you can apply to have the judgment set aside.|
Generally this application must be made within 90 days after the date of the judgment. In exceptional circumstances the court can allow the application to be made later than 90 days after the judgment.
You must fill out the Application to Set Aside a Judgment form. If the case was dismissed because you failed to appear you must include an Affidavit explaining why you did not appear. If you are the defendant you must also show that you have a valid defence to the action. A defence will be considered valid if it is based on reasonable grounds and/or if there is an issue that could be resolved by a trial.
The judge will look at the application and decide whether the case should go back to court. If the judge decides the case should go back to court the judge will issue a Summons indicating a new court date. You must prove service before the hearing can go ahead. At the hearing the judge can set aside the judgment and determine if the case should be reheard.
|Either side may appeal the judgment to the Court of Queen's Bench.|
Generally an appeal from a Small Claims Court judgment must be made within 30 days of the judgment. The Court of Queen's Bench can extend this time up to 150 days if the person can show why they did not appeal within the time limit.
Appeals must be based on a legal error the trial judge made. Appeals are not a chance to produce more evidence or to dispute the judge's finding about the facts of the case. The Court of Queen's Bench will review the record of the trial to make a decision. Only in very exceptional circumstances will the court consider new evidence.
Parties are not required to have a lawyer for an appeal unless the party is a company or corporation. There are different procedures for a company or corporation.
To appeal you must...
- complete the Notice of Appeal setting out the grounds for the appeal
- serve a copy of the Notice of Appeal on all the other parties
- obtain a Certificate of Judgment from Small Claims Court
- send a request for a transcript of the trial to Small Claims Court
- file the original Notice of Appeal and proof of service on the other party, Certificate of Judgment and transcript of trial with the nearest Court of Queen's Bench, along with the filing fee
Collecting on the Judgment
The successful person is responsible for collecting the judgment. In many cases, the unsuccessful person will voluntarily pay the amount owing. In other cases, the successful person may need to use legal methods to collect the amount owing. No steps to enforce the judgment may be taken before the appeal period is over or as long as the terms of the judgment are being complied with.
If legal collection is necessary a Certificate of Judgment must be filed with the Court of Queen's Bench. There is a filing fee of $10. Once the judgment is filed with the Queen's Bench Court it can be enforced like a judgment of that court.
For information on collecting debts, see PLEA's Debts and Credit publication, available at plea.org.
For a complete list of the Provincial Courts in Saskatchewan where small claims are heard go to www.sasklawcourts.ca.
In Regina contact:
The Provincial Court
In Saskatoon contact:
ISBN/ISSN number: 1495-8015