Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to going to Ontario Small Claims Court, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have lawyers who can assist you.
This is the second blog where I’m discussing helpful tips about going to Ontario’s small claims court.
Preparing for Examination-in-Chief and Cross-Examination
Examination-in-Chief is the evidence you present to the Judge to support your case through your testimony and evidence and the testimony and evidence of your supporting witnesses (if any). It is your job to ask your witnesses questions to adduce their testimony and evidence. Cross-Examination is the process by which your opposing party gets to question you and your witnesses. Examination-in-chief comes first, followed by Cross-Examination.
To prepare for Examination-in-Chief and Cross-Examination, you should come up with a list of questions that flow chronologically and which help to support your position. It’s best to ask short questions for which you likely already know the answer. A good tip is that, if you’re referring to a particular document in your question, you should have a reference to that document beside the question. For example:
Q: Is that your signature on this contract?
(SEE PLAINTIFF’S CLAIM, SCHEDULE A, EXHIBIT “A”, p. 3)
This is important because the Judge may not be able to follow your questions if he or she has to keep looking for documents that you are referring to. Another good point is to take care of the less contentious questions first. This will keep the Cross-Examination flowing quickly and have any opposing party agreeing with you from the start. Leave the most contentious issues for the end where you can dedicate most of your time.
Conducting Examination-in-Chief and Cross-Examination is discussed later.
Your Day in Court
Sometimes, at the beginning of a trial, a judge will provide the parties with a chance to make an Opening Statement. This is a brief overview of the parties’ position without getting into the details of the evidence. If you’re given this opportunity, you can say something like: “Your Honour, this case is about… and the evidence will show that…” Keep it short and sweet. If your position gets made at the beginning in a focused and clear manner, then the Judge should have an easier time following your evidence and arguments throughout the rest of the trial.
When it’s your turn to call witnesses to prove your case, you can ask them open ended questions but you cannot lead them to their answers. You can only ask leading questions during your Cross-Examination of opposing parties. Don’t badger or interrupt your witnesses and give them a chance to answer your questions. Judges generally do not like it when you interrupt and it makes the trial transcripts less clear. Do not ask more than one question at a time because the witness or the Judge may get confused and you will look bad. Also, there are certain kinds of questions you may not be able to ask because they are irrelevant to the case. For example, asking an auto salesperson about their medical opinion (assuming they are not a doctor) will not be allowed. It can be objected to by the other side and if the Judge agrees or objects him or herself, then you will only have succeeded in wasting everyone’s time and testing the Judge’s patience.
When it is your turn to Cross-Examine the other side, there are a few things you should be mindful of. First of all, coming out with guns blazing might not be the best approach. You can always leave that until the end – especially when things are really contentious. You might simply want to try this simple approach: be calm, polite, patient, and courteous to the opposing party. Even if you have caught them in a web of lies, you need not always point that out with thrust and vigour. Just because you hold a big stick doesn’t mean you have to use or show it. The Judge will know it’s there. Remember: your job is to let the judge convince him or herself that you are right. Cross-examination is a time to keep cool and use your head. Don’t let emotions get involved or else the Judge will look at you unfavourably. Be likeable and you’ll be believable!
Closing and Legal Submissions
When all the evidence has been presented, it’s time for you to make some final arguments to sum up your case. This is when you will get the chance to speak about the law and show how the evidence supports your position. However, by this point you have likely been emphasizing your position throughout (i.e. opening statement, Examination-in-Chief and Cross-Examination) and the Judge may not require a long submission. When making your closing submission, stick to the tips and tricks you’ve already read in my blog – such as, speak clearly, be chronological, keep your submissions short and sweet, etc.
If you are successful in Small Claims Court, you can ask the Judge for an Order that the opposing party pay you costs to reimburse you for the expenses you incurred in bringing the matter to court. It is not guaranteed that you will receive your costs (in whole or in part) but here are some rules you should be familiar with:
- A successful party is entitled to have their reasonable disbursements (e.g. cost of service, expenses for travel, accommodation, photocopying, experts’ reports, etc.) paid for by the defendant: Rule 19.01(1) of the Small Claims Court Rules.
- Cost awards are limited by s. 29 of the Courts of Justice Act: Rule 19.02.
- Section 29 of the Ontario Courts of Justice Act states that an award in small claims court “shall not exceed 15 per cent of the amount claimed…unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding”.
- The court may award successful party an amount not exceeding $50 for preparation and filing of pleadings: Rule 19.03.
- The court may award a reasonable representation fee at trial or at an assessment hearing if the amount claimed in an action exceeds $500, exclusive of interest and costs, and the successful party is represented by a lawyer: Rule 19.04.
- The court may award up to $500 as compensation for inconvenience and expense if the successful party is self-represented: Rule 19.05(a).
Proper hygiene and dress is important. Get a haircut, don’t overdo the makeup, and dress nicely. Don’t turn your appearance into a negative distraction for the Judge.
When it is your turn to speak, you should remember a few key points. First, make sure you are loud enough for the judge to hear. Second, make sure that you speak clearly and pause slightly after each point you’re making. If the judge is taking notes give the judge time to write. Third, don’t be afraid to ask the judge if he/she can hear you or if you are going too fast. Judges will generally appreciate this.
If you don’t want to get in trouble with a judge or the court staff, then you’ll want to pay attention here. Courtroom etiquette is of utmost importance. Breaching these rules may get you kicked out of the courtroom! First, make sure your cell phone is off or on silent. Second, remove all non religious head coverings (like a baseball hat). Third, don’t eat or drink in the courtroom. Fourth, if you need to talk to someone you must leave the courtroom and if you remain in the hall (as opposed to outside) you should speak quietly as you may be heard inside the courtroom. Be aware that a Judge may have a difficult time hearing the evidence or submissions if, for example, the parties’ voices are faint, the air-conditioning is on or there is construction happening outside.
When presenting your case or giving evidence make sure you stay in your designated spot unless you obtain permission from the judge (e.g. to approach a witness in the witness box or to provide a document to court staff). Stand up when it’s your turn to speak and sit down when it’s not. If you’re getting a lecture from a judge (for whatever reason), be courteous with as little talking back as possible. Whatever you do, don’t raise your voice to the judge. If you disagree with the judge on a point, you can politely say (after the judge has finished speaking) something like: “Your Honour, for the record, I would submit…”. Don’t give any attitude. Don’t give the judge a reason to not want to support your case! Leave that for the other side.
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These Court Form Packages can be used by a party who wants to start a lawsuit in Ontario’s Small Claims Court concerning a Construction Renovation or Unpaid Account dispute. Each of these packages comes with a FREE VIDEO GUIDE (watch a useful example of how this court form can be customized), a FREE DL GUIDE (read helpful information about this court form), and another FREE DL GUIDE that offers valuable insight into preparing for and attending Ontario’s Small Claims Court. What are you waiting for? Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!
This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.