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Responding to a Small Claims Case

If someone is going to start a Small Claims case against you their first step may be to contact you. At this point, and at any point before a judge makes a decision about the case, you and the other party can agree to settle the issue. You can settle on any terms you both agree to.

The person starting the case may send a Demand Letter instead of or in addition to contacting you in another way. This is also an opportunity to negotiate a settlement.

If you are served with a Summons and Claim this means a case has been started. However you can still negotiate with the other party to settle the matter. If you agree that you owe the other party money you and the other party can agree on a payment plan. For more information about options to settle a case see Before Going to Court.

Reply

If you think that the party starting the Claim actually owes you money you can make a Counterclaim. If you think someone else is responsible or partly responsible for what happened you can make a Third Party Claim.

If you have been served with a summons and a claim it is important to respond. If you do nothing the judge can rule in favour of the other party and you will then be responsible for paying the amount awarded and costs. The Reply form is how you let the court and the other party know what you dispute and what, if anything, you do not dispute.

At the top of the Reply form you put the other party’s name and the name of the city, town etc. where they live. This information can be found by looking at the other party’s claim. Once the form is completed you date and sign it and include the address where court documents can be served on you.

Agree with Claim

If you agree with all or part of the other party’s claim you fill out Part One of the Reply. You can agree with all or some of what the other party has said in their claim. You write out in numbered paragraphs the statements from the Claim that you agree with.

You then decide what you are willing to pay the other party to settle the claim or the parts of the claim you agree with. You enter the amount and indicate whether it would be in full or partial settlement of the claim.

Disagree with Claim

If you do not agree with the claim you must set out in numbered paragraph the parts you disagree with.

Documents

You need to gather any documents you have to support your case. This could be things like a bill of sale, estimate, contract, invoice or a photograph. You need to make copies of everything. Then make a document and photograph list organized by date. List the earliest one first.

Serving the Reply

You serve the Reply on the other party so they know whether you agree or disagree with the claim.

When to Serve

The Reply must be served at least 10 days before the court date on the summons.

How to Serve

A Reply can be served by any way that allows you to prove service including regular mail, registered mail, personal service, courier, email, fax or by process server.

Proving Service

In some cases you prove service without an Affidavit of Service:

  • 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.

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.

You can also take the Affidavit to the courthouse to be sworn. Do not sign it until you are in front of the Commissioner for Oaths or a Notary Public.

The Affidavit of Service will vary depending on how the documents were served. The Affidavits can be found in the Appendix of The Small Claims Regulations.

  • If the documents were served by email you use the Affidavit of Email Service (Form H) and attach a copy of the email that shows the date it was sent and the email address it was sent to.
  • If the documents were served by fax you use the Affidavit of Service by Fax (Form I) and attach the transmission record.
  • If the documents were served by regular mail you use the Affidavit of Service by Regular Mail (Form G).
  • If the documents were served by registered mail you use the Affidavit of Service by Registered Mail (Form F) and attach the mail receipt.
  • If the documents were served in person you use the Affidavit of Personal Service (Form E). It must be filled out by the person who served the documents.

Filing

Once you have served your Reply, gathered your documents and filled out the Affidavit to prove service you take your papers to the courthouse to file them. You must also pay a $50 filing fee. It can be paid by cash, cheque or credit card.

The location and address of the court will be on the Summons. 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.

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