Overview

Small Claims Court

Superior Court of Justice.

Steps in civil action.

Step 1: start a claim

Before you start a claim

Starting a claim

Serving your claim

Step 2: defend the claim

Step 3: Mandatory mediation.

Step 4: Discovery.

Step 5: set the action down for trial

Step 6: pre-trial conference.

Step 7: the trial

Getting the judge’s decision.

Obtaining a default judgment

Step 1: note the defendant in default

Step 2: move to obtain the default judgment

Court fees.

Getting paid if you win a case.

Prejudgment and postjudgment interest rates

Alternatives to trial

Negotiation.

Mediation.

Overview

A civil case is a lawsuit that occurs between two or more parties when there is a disagreement on a legal matter. The parties can be people, groups of people, businesses or other organizations.

Civil cases can deal with:

  • Disagreements about a contract
  • Claims for personal injuries
  • Claims for damage to your property
  • Claims for damage to your reputation

You can start a civil case by preparing and filing a statement of claim that describes the facts and legal reasons you are entitled to compensation. This is called an action.

You can also start a civil case by preparing and filing a Notice of Application that describes the order you want the court or judge to make. This is called an application. You can only start a case by way of application in certain circumstances if a specific Act or the Rules of Civil Procedure says you can.

If you are claiming damages against the Crown in right of Ontario (Ontario government), you will need to provide 60 days’ notice before starting your claim as outlined in the Crown Liability and Proceedings Act.  

Small Claims Court

If you are suing for $35,000 or less or for the return of personal property valued at $35,000 or less, not including interest and costs. you can start your claim in Small Claims Court. Learn more about suing or being sued in Small Claims Court.

Superior Court of Justice

You should start your case in the Superior Court of Justice if either: you are suing for more than $35,000 you are seeking a specific type of order that only a Superior Court Judge can make Cases involving some areas of law are dealt with by specialized bodies or are governed by specialized procedures.

The information on this page does not cover cases that involve family law, including divorce, matrimonial property division, spousal/child support and parenting time and decision-making responsibility in respect of a child wills, estates and trusts, including

  • Guardianship over mentally incapable adults
  • Complaints about a judge
  • Complaints about a lawyer or disputes about a lawyer’s bills
  • Complaints about a private bailiff
  • Residential landlord and tenant matters
  • Worker’s compensation matters
  • Labour relations

The Superior Court of Justice does not deal with matters where the Federal Court has exclusive jurisdiction, including federal tax matters and immigration matters.

Steps in civil action

There is a general set of steps you need to follow for civil cases started by a statement of claim in the Superior Court of Justice. Each case may vary. Civil cases started by application have different steps. There are also different procedures to follow under certain rules of the Rules of Civil Procedure, including:

  • Rule 76: Simplified Procedure under for claims up to $200,000
  • Rule 77: Civil Case Management for actions and applications started in Toronto, Windsor and Ottawa
  • Rule 24.1 and 75.1: Mandatory Mediation for most civil cases started in Toronto, Windsor and Ottawa

Step 1: start a claim

Before you start a claim

Before you start a claim, it is important to know: the options available to resolve your dispute without going to court there may be a time limit on how long you can wait before starting a lawsuit (in most cases, a claim cannot be started more than two years after the claim was discovered, see the Limitations Act, 2002 to learn more) as the person starting the case, you are the plaintiff and the defendant is the person or business you want to sue the full legal name and address of the person or business you are suing (you can find businesses registered in the past five years using Service Ontario’s online business name search, registration and renewal service) the facts about the case because you will need to start the action by writing a short, clear summary of what happened and why you think you are entitled to the relief you are seeking (for example, why you are owed money or property by the defendant) and provide evidence to support this at the trial

Starting a claim

You (the plaintiff) start your case by:

  • preparing a Statement of Claim (Form 14A or 14B)
  • paying the applicable fees
  • having it issued by the court
  • Learn more about court fees.

Your statement of claim should include a short summary of the key facts that support your case. See the Rules of Civil Procedure to learn more about the statement of claim.

If you need more time to file a statement of claim, you can file a Notice of Action (Form 14C). This will give you 30 more days to file your Statement of Claim (Form 14D).

To have your statement of claim issued by the court, you must file it with a completed Form 14F (Information for Court Use): online in-person by mail

Serving your claim

The court will stamp and date your statement of claim. Once the court issues your statement of claim, you must personally give a copy to each named defendant within six months. This is called serving your claim. In a civil case involving the provincial government, you may need to serve documents on the:

  • Crown
  • Ministers of the Crown (including the Attorney General of Ontario)
  • Children’s Lawyer
  • Public Guardian and Trustee

Learn how to serve documents in cases involving the provincial government.

Once you have served your statement of claim, you must complete an Affidavit of Service (Form 16B) for each defendant and file it with the court. See the Rules of Civil Procedure to learn more about how you can serve your claim.

 Step 2: defend the claim

If you are being sued, you will have been served with a claim. You must: prepare a Statement of Defense (Form 18A) and serve it on everyone else in the matter (such as the plaintiff and any other defendant who is named) complete an Affidavit of Service (Form 16B) for each party served file your statement of defense and proof of service with the court You must serve your defense within a specific number of days, depending on the matter. See Rule 18 of the Rules of Civil Procedure for more information on when to serve your statement of decencies you cannot serve your statement of defence within the time limits, you can serve and file a Notice of Intent to Defend (Form 18B). This will give you 10 more days to serve and file your statement of defense. As the defendant, you may do the following:

Try to settle the case with the person suing you at any step in the proceeding.

  • Believe the plaintiff owes you money and start a Counterclaim (Form 27A or 27B) against them. This is like a statement of claim (for example you will need to write a short, clear summary of why you think you are entitled to certain relief from the plaintiff). The plaintiff is entitled to file a defense to the counterclaim.
  • Disagree with the claim and start a Crossclaim (Form 28A) against another defendant if you believe the other defendant is responsible for the plaintiff’s damages or owes you money or property in this case. This is like a statement of claim (for example you will need to write a short, clear summary of why you think you are entitled to certain relief from the other defendant). The other defendant is entitled to file a defense to the crossclaim.
  • Believe someone else is responsible for the damages and start a Third-Party Claim (Form 29A) against someone who is not a party in the case. The third-party claim would need to be separately issued and served on the third party, like a statement of claim. This is like any other statement of claim (for example you will need to write a short, clear summary of why you think you are entitled to certain relief from the third party). The third party is entitled to file a defense to the third-party claim.

You should not ignore the claim. If you do not file a statement of defense, you may be noted in default, and you will not receive any further notice about steps in the court case.

Being noted in default has several consequences, including that the court will assume you admit to the claims made against you and the party suing you can ask the court to order you to pay the claim. This is called a default judgment, which can be enforced against your property and assets.

Learn how to get a default judgment on an undefended claim.

Step 3: Mandatory mediation

Mediation is one way for you and the other parties to try and reach a settlement without having to go to court. In mediation, a neutral third party (the mediator) helps you look for a solution that works for everyone. Under Rule 24.1 of the Rules of Civil Procedure, parties in most civil actions in Toronto, Windsor or Ottawa must attend a mandatory mediation session at an early stage of the case.

Learn more about the Ontario Mandatory Mediation Program.

Step 4: Discovery

In a process called “discovery”, the parties can exchange information about their evidence before going to trial. There are two parts to the discovery process: discovery of documents

examination for discovery, where parties ask each other questions while being recorded

Benefits of discovery

The discovery process can help: assess the strengths and weaknesses of each side’s case before trial narrow the issues for trial reach a settlement The discovery plan

Before proceeding to discovery, you and the other parties must agree on a discovery plan within 60 days of the close of pleadings, unless you agree to a longer period. Pleadings are closed once the defendant has served and filed their statement of defence.

The discovery plan must include:

the types of documents you and the other parties are going to provide to each other

the dates by which you and the other parties will each serve your Affidavit of Documents (Form 30A or 30B) information about the timing, costs and way in which the documents will be produced the names of each person being examined in the discovery and information about the timing and length of the examinations any other information to ensure a quick and cost-effective discovery process  In preparing the discovery plan, the parties must consider the Sedona Canada Principles addressing electronic discovery.

See Rule 29.1 of the Rules of Civil Procedure for more information on the discovery plan.

Documentary discovery

You must serve your affidavit of documents by the date in your discovery plan and it must list all relevant documents. Documents can be: videotapes or film photographs sound recordings charts, graphs, maps, plans or surveys books of account data and information in electronic form (for example, emails)

You must disclose all relevant documents. If you find new relevant documents after you serve your affidavit of documents, you must disclose them by serving a supplementary Affidavit (Form 4D). You can ask to inspect a document in the other party’s possession and they can ask to inspect your documents. See the Rules of Civil Procedure for more information on situations where the document must be provided to the other party.

Examinations for discovery

Examination for discovery allows you and the other parties to ask each other questions, under oath, before the trial.

If you want to examine an opposing party in your case you must serve a Notice of Examination (Form 34A) which tells them how to attend the examination by providing either: a time and place telephone conference details video conference details

The examination should take place at an official examiner’s office so that it can be recorded. You can ask to have it transcribed so you have a written record of what was said at the examination.

You can examine the other party or parties for up to seven hours, or you can agree to different time limits. This timeline applies regardless of the number of parties you are examining.

At your examination, unless you and the other party or parties agree otherwise, you must be able to provide all the documents listed in your affidavit.

Step 5: set the action down for trial

Once defenses are filed and discovery is done (including any discovery-related motions), you or any party to the action can ask for a trial date. This is called setting the action down for trial.
You will need to prepare and file your trial record. The trial record contains:

  • A table of contents
  • A copy of any jury notice
  • A copy of all pleadings (for example, claims, counterclaims, crossclaims or third-party claims)
  • Orders made in your case
  • A certificate signed by the lawyer setting the action down for trial

See Rule 48 of the Rules of Civil Procedure for more information on the trial record.

  • If your action is defended, you can have your case set down for trial by:
  • serving your trial record on the other parties
  • filing it with the court with proof of service
  • paying any fees

If you are the plaintiff in an undefended action, you can have your case set down for trial by filing your trial record with the court. Undefended actions go to trial when other ways of getting a default judgment have been unsuccessful.

See Rule 19 of the Rules of Civil Procedure for more information regarding default proceedings.

Dismissed actions

The court can dismiss your action if: it was not set down for trial or settled within five years of the start date, unless the court ordered otherwise it was taken off the trial list and not put back on the list within two years, unless the court ordered otherwise it was started before January 1, 2015 (see Rule 48 Rules of Civil Procedure for more information)  You will not get any notice that your action is being dismissed. Once it is dismissed, you will receive an Order Dismissing Action for Delay (Form 48D). To keep your action from being dismissed if you cannot set it down for trial within five years of the start date, you must either: have consent of all the parties bring a motion for a status hearing   If you have consent from all parties, you must draft a timetable that shows the court:

  • the steps you need to complete before the action can be set down for trial or restored to the trial list
  • the date(s) the steps need to be completed by
  • a date the action must be set down for trial or placed back on the trial list. The date cannot be more than seven years after the claim
  • Timetables and draft orders must be filed with the court at least 30 days before the five or two year deadlines.

If the parties do not consent to the timetable, you can bring a motion for a status hearing to ask for a court order allowing the action to move forward. You can do this at any time before the five- or two-year deadlines.

Step 6: pre-trial conference

All parties must attend a pre-trial conference before the trial can be held. The pre-trial conference is a chance to discuss:

  • potential settlement
  • whether the issues can be simplified
  • how long you think the trial will last

The judge who conducts the pre-trial conference cannot preside at the trial unless all parties consent.

To schedule the pre-trial, you must contact the court registrar within 180 days of the case being set down for trial. If you do not schedule it, the court registrar will set the date.

Step 7: the trial

Your trial may be decided by either a:

judge

judge and jury

Your case will be heard by a judge alone unless you request a judge and jury hear your case. Juries are rare in civil cases and not available in certain cases. You will need to file a Jury Notice (Form 47A).
During the trial, you and the other parties will present your evidence by calling witnesses and entering your documents or objects as exhibits.

You will need to tell your witnesses when to attend court. If any of your witnesses are reluctant or unwilling to attend the trial, you can require them to do so by serving them with a Summons to Witness (Form 53A) along with their attendance money. This is the money they are entitled to for going to court and will cover any expenses, such as travel. You may file an affidavit to prove that you served the summons and delivered the attendance money to the witness.

Getting the judge’s decision

A judge may make their decision at the end of the trial, immediately after all parties have presented their case. The judge is also allowed to release their decision later. This is called reserving judgment.

You can get a copy of the judge’s decision, which is set out in a judgment, order or endorsement, from your lawyer or the court office.

If you request a copy of the judgment, order or endorsement from the court file, you will need to pay a copy fee.

Obtaining a default judgment

If the defendant in your case has not filed a statement of defence within the specified time limit, you can get a default judgment. There are two steps you must take to get the default judgment.

Step 1: note the defendant in default

To have the defendant noted in default, you must:

  • Prepare an Affidavit of Service (Form 16B) for your Statement of Claim (Form 14A or 14D)
  • Prepare a Requisition for Default Judgment (Form 19D)
  • File your affidavit and requisition with the court registrar

Step 2: move to obtain the default judgment

You will need to either:

Request the court registrar sign default judgment if your claim is for a fixed amount of money (for example, an unpaid debt)

  • Bring a motion to the judge if your claim is for damages that needs an assessment of how much you should be owed (for example, a personal injury)
  • For the court registrar to sign default judgment you must file a requisition for default judgment (form 19d). The court registrar may decline to sign if they are unsure whether the claim can properly be signed in default or they are unsure if the rate claimed is recoverable for prejudgment or postjudgment interest. If the registrar declines to sign default judgment, you can bring a motion to the judge.

You can bring your motion for judgment to the judge either:

  • in writing
  • orally by attending a motion hearing

To bring your motion in writing you must prepare and file the following documents:

Notice of Motion (Form 37A)

motion record which includes:

  • your notice of motion
  • an affidavit (Form 4D)
  • Confirmation of Motion (Form 37B)
  • draft default judgment (Form 19A, 19B or 19C)

Once you have filed all your documents and paid the fee, the court will let you know whether the default judgment is granted.

To bring your motion orally, you must ask for a motion date by contacting the motions office in the courthouse where your claim was started. You must also prepare and file the following:

  • Notice of motion (form 37a)
  • Motion record which includes:
  • Your notice of motion
  • An affidavit (form 4d)
  • Confirmation of motion (form 37b)
  • Draft default judgment (form 19a, 19b or 19c)

Once you have filed all your documents and paid the fee, you must attend your motion hearing where the judge will make their decision on whether to grant default judgment.

See Rule 19 of the Rules of Civil Procedure for more information on default proceedings.

Transferring a claim to Small Claims Court

  • If your claim is $35,000 or less and was started in the Superior Court of Justice, it will not automatically transfer to Small Claims Court.
  • There are two ways you can ask to have your case transferred.
  • If all parties agree to the transfer
  • If your trial has not started and all parties agree to the transfer, you can ask the local Superior Court registrar to transfer the case.

To ask the court registrar, you must:

  • get written consent of the transfer from all parties
  • complete a Requisition (Form 4E)
  • file the requisition and written consent from all parties with the Superior Court of Justice
  • pay the fee to transfer the court file
  • If all parties do not agree to the transfer

If the parties in your case do not agree to the transfer, you can bring a motion in the Superior Court of Justice to ask the court for permission to do so. To bring a motion orally, you must ask for a hearing date at the Superior Court of Justice court office where you started your case. You must also prepare and file the following:

a Notice of Motion (Form 37A)

motion record which includes:

  • Your notice of motion
  • A copy of all the materials you intend to rely on for the motion, including any documentary evidence (that may need to be sworn or affirmed in the form of an affidavit, please see note below about procedure and evidence)
  • Confirmation of motion (form 37b)
  • You can also bring a motion in writing. Important details about the procedure and evidence for a motion are set out in rule 37 and rule 39 of the rules of civil procedure. You should read the rules carefully before you make a motion.
  • Once you have filed all your documents and paid the fee, you must attend your motion hearing where the judge will make their decision on whether to transfer your case to the small claims court.
  • If you receive a transfer order, you must ask the court registrar to transfer your case by:
  • Completing a requisition (form 4e)
  • Filing the requisition and a copy of the transfer order with the superior court of justice
  • Paying a fee to transfer the court file

There are different steps to bringing a motion if your case is under the Simplified Procedure.

Court fees

You will need to pay fees when filing a claim and for most steps in the court process. You can pay these fees, either:

  • at the court counter
  • by mail
  • online where available

The judge might order the person you are suing to pay some of the costs if you win the case. If you lose, you might have to pay your own costs and some of the defendant’s costs.

Even if you win, the person or business you sued may not pay you or return your property. If this happens, you can try to collect by enforcing the judgment, which also involves fees.

You may also need to pay other costs related to your case, including:

  • lawyer fees and disbursements
  • copy fees
  • mediator’s fees
  • witness attendance money
  • If you think you cannot afford to pay court fees
  • You can request a fee waiver if you cannot afford to pay court fees. Learn more about fee waivers.

Getting paid if you win a case

Winning a case does not guarantee you (the creditor) will get paid. The person or business you sued (the debtor) may not be able to pay you or may choose not to pay you. If you do not get paid, there are steps you can take to try to get paid. This is called, enforcing the judgment.

You can try to get the money:

  • By garnishment, for example, of the debtor’s bank account or wages (when money is taken from the defendant’s paycheque and given to you)
  • Through the seizure and sale of personal property or land (the defendant’s personal property or land is taken and sold, with the profits being used to pay you back the money owed)
  • Enforce judgment
  • It is up to you to determine the best way to enforce the judgment. To determine the best way to enforce a judgment, you may need information about the debtor’s financial situation.

You can find out information about the debtor’s financial situation by:

  • Checking with the local credit bureau, enforcement office or land registry office to find out if the person owns property or has other assets
  • Asking for an examination in aid of execution where you can ask questions about the debtor’s financial situation and their ability to pay the judgment

At the examination, the debtor may be asked to give information about their:

  • job
  • income
  • property, for example, motor vehicles or land
  • bank accounts
  • debts
  • expenses

reasons for not paying

See Rule 60 of the Rules of Civil Procedure for further information about enforcement of judgments.

Prejudgment and postjudgment interest rates

If you want to ask for interest on the money you are claiming, you must ask for interest in your statement of claim. Before judgment, the interest is called prejudgment interest. Prejudgment interest can help motivate the defendant to settle the case before going to trial.

After judgment, the interest is called postjudgment interest. If your claim is successful, post-judgment interest is added automatically to the amount owed to you under the judgment. Postjudgment interest can motivate the defendant to pay the amount they owe sooner.

If the rate of interest has been agreed to by the parties (for example, in a written contract signed by the parties), indicate that interest rate in your statement of claim. If no interest rate was agreed upon, you can ask the judge to award you prejudgment and postjudgment interest at the rates as defined in the Courts of Justice Act.

Learn more about how prejudgment and postjudgment interest rates apply to the money you are claiming.

Alternatives to trial

Going to trial takes time and costs money. You should also consider the possibility that you might lose the case and be ordered to pay the other party’s costs.

Before starting a court case, you may want to consider other dispute resolution options available to you.

Negotiation

Negotiation is a form of dispute resolution where you and the other party try to reach an agreement without going to court. Communication can occur either:

directly with the other person

through representatives (such as a lawyer or paralegal)

Before you decide to start a case, you could send a letter or talk to the person who owes you money and explain the situation and what you think they owe you.

Mediation

A mediator is a neutral third party who can help you and another person reach an agreement. A mediator can help improve communication and encourage compromise, which could help you avoid going to court.

Mediation is voluntary if it occurs before the court case starts. You and the other person must both be willing to work out a solution and agree to the mediation.

After a court case starts, mediation is mandatory in most civil court cases in Toronto, Windsor and Ottawa. Learn more about Ontario’s Mandatory Mediation Program.

The mediator does not take the place of a lawyer. Each party is encouraged to get independent legal advice before and throughout the mediation process.

Private practice mediators offer civil mediation services. You can find a professional mediator through the following organizations:

  • Alternative Dispute Resolution (ADR) Institute of Ontario
  • Alternative Dispute Resolution (ADR) Institute of Canada
  • Arbitration
  • An arbitrator is a neutral third party who can help you resolve a case without going to court.

Parties who arbitrate a case must agree to be bound by any decision made by the arbitrator. A decision made by an arbitrator is legally binding and enforceable against the parties. Arbitration is less formal than a trial and many people find it to be a more comfortable process than going to court.

An arbitrator considers the evidence presented to them by the parties. The arbitrator cannot exclude evidence that a court would otherwise admit. Arbitration is governed by the Arbitration Act.

The arbitration process may be more complicated and expensive than mediation, but arbitration can be faster than suing in court.

You can find a professional arbitrator through the following organizations:

  • Alternative Dispute Resolution (ADR) Institute of Ontario
  • Alternative Dispute Resolution (ADR) Institute of Canada
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