Which Small Claims Court should I file my claim in?

 

The Rules of the Small Claims Court require a claim to be filed in either the jurisdiction where the Defendant resides or where the cause of action occurred.

 

RULES OF THE SMALL CLAIMS COURT

Court House

Choosing the wrong Small Claims Court to file your claim in can make be problem but the court has an answer.  Unlike the Superior Court of Justice, the Rules of the Small Claims Court explicitly state where a Plaintiff’s Claim must be initiated.  Rule 6.01 sets out two and only two options to a Plaintiff.

 

  1. Where it happened: A claim may be filed in the territorial division in which a cause of action arose. A territorial division means either a county or, in the case of a single-tiered municipality, the actual city or town.  A cause of action is the fact or facts which give a person the legal right to bring a lawsuit.

 

  1. Court closest to the Defendant(s): A claim may also be filed in the territorial division in which the Defendant or, if there are several defendants, in which any one of them reside or carries on business. Aside from the territorial division, the Plaintiff may also file a claim in the court that is nearest to the place where the Defendant, or if there are several Defendants, where any one of them resides or carries on business.

 

Determining which territorial jurisdiction a Defendant resides in is a relatively straight forward matter.  Determining where a cause of action arose can be a little more complicated especially when dealing with a breach of contract.  Courts have found that in such situations the cause of action is not found where the contract was formed but rather where the breach occurred.  For example, in situations involving unpaid debt the cause of action is the non-payment and courts have determined that it is occurring where the debtor is.

 

FORUM SELECTION CLAUSE

In some contracts, one of the parties, usually the one who has drafted it, will sometimes include a clause stating in which jurisdiction legal action must take place should it be necessary.  However, section 114 of the Courts of Justice Act says “an agreement as to the place of hearing is not binding, but may be taken into account.”

 

BALANCE OF CONVENIENCE

If a Plaintiff commences a claim in the wrong territorial jurisdiction the Defendant may bring a motion to have the matter transferred.  With that being said, the court may decide not to move the case if a Plaintiff can demonstrate that the balance of convenience favours keeping the matter in the jurisdiction chosen by the Plaintiff (see Rule 6.01(2)).

 

Some of the things the Small Claims Court may consider in determining where the balance of convenience lies are as follows:

  1. Unnecessary expense, time and travel that may be incurred and inconvenience to the witnesses and parties;
  2. Evidentiary problems and including location of the bulk of the evidence and witnesses;
  3. Where the core of the action lies; and
  4. The substance of the matter to be decided.

 

If you are unsure in which jurisdiction a claim should be started in, or which Small Claims Court location you should use, then you should speak to a legal professional like a paralegal or a lawyer.