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Preparing for a Small Claims Trial

As soon as a trial date is set you should begin your initial preparation. Follow up on anything that arose out of the First Appearance or Case Management Conference and comply with any directions from the judge.

Review all of the information that has been filed with the court and served on the other party, including the Claim, the Reply and any documents.

Make sure that you will be available and notify all of your witnesses of the trial date. 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

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

If a witness who has not been subpoenaed fails to appear for court you are not likely to receive an adjournment.

It is the parties’ 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 a $10 charge for issuing a subpoena. Disobeying the subpoena is against the law.

It is the responsibility of the parties to serve the subpoena on their witnesses and to offer to pay the witness fee prescribed by law. The subpoena must be served personally at least 5 days before the trial 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 20 kilometres 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

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 to keep the costs of presenting a case to the minimum.

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.

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.

See Civil Trials for information about Small Claims trials.

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