Monday April 04 2022
What Do You Do When Someone Owes You a Modest Amount of Money?
Nobody needs to be told that doing business with lawyers can be expensive. Keeping this in mind, most jurisdictions have something similar to our Small Claims Court to allow people to resolve disputes without the necessity or, perhaps, the ability to be represented by lawyers where the amounts at issue are modest. The main difference amongst jurisdictions will be the upper limit for which such cases may be brought before the Small Claims Court. In Quebec, since 2016 the upper limit of the Small Claims Court is $15,000.
Dealing with the Small Claims Court
If you have a monetary dispute that is worth $15,000 or less, that you wish to bring to court, you can handle it yourself. In fact, except in unusual circumstances and with permission of the Court for particularly complex questions, once you are at the trial you must handle it yourself without a lawyer. Although you can give a mandate (power of attorney), without remuneration, to a family member or a friend if need be.
First step: demand letter
Usually, the first step in any such dispute is to send a letter by certified mail, or even by bailiff, to the person from whom you are claiming money.
Such demand letters in general need to contain four elements:
- A logical and preferably chronological detailing of the facts of the case;
- An indication of what you are demanding and why;
- A delay for the payment to be received (generally 5, 10 or 15 days, or whatever delay you wish); and
- The legal consequence of not being paid within the stipulated delay, that is, the intention to sue for payment.
Second step: filling out the lawsuit
Once the delay has expired, you can thereafter start your lawsuit in Small Claims Court. The lawsuit can be filled out online at the Justice Ministry’s website and can be filed in person as well, following payment of the appropriate amount. The amount that must be paid varies with the amount that you claim, so that the amount to sue for 15,000$ is greater than the amount to be paid to sue for 10,000$ or for 5000$.
Third step: procedure of the lawsuit
Once the person you are suing receives the lawsuit, they have the opportunity to present their defence.
Both parties will be offered the possibility to go into a mediation session, although this is purely voluntary and not obligatory in any way.
You must arrange with the court to summon any witnesses that will be required. You must also file into the office of the court a copy of the documents or exhibits that you will be using and make sure to bring the originals at the day of the trial.
You are completely free to consult a lawyer in order to prepare your lawsuit and to assist you in filing it. However, you yourself must sign the lawsuit. A lawyer cannot sign it for you as he could for ordinary lawsuits in the ordinary court divisions.
You may also consult a lawyer in order to help you prepare for the trial or even to prepare for the mediation sessions, should you accept to participate.
Step four: the trial
At the trial itself, you must represent yourself or you may grant a family member or a friend a mandate (power of attorney) so long as they act for free. You cannot mandate a lawyer to represent you at the trial in the Small Claims Court unless the Court so authorizes and, specifically, in cases of a complex question on a point of law.
Once a judgment is issued, if the losing party does not pay voluntarily, you can hire a bailiff to enforce the judgment and, for example, seize goods to be sold, seize bank accounts, or seize salary. You will have to pay the bailiff’s costs upfront but if the bailiff succeeds in collecting, such money is payable and reimbursable by the losing party, so you should get it back. However, it is also possible that either the losing party will have nothing with which to pay a judgment or may go bankrupt. In such cases, there is the possibility that you will not be reimbursed either for your judgment or for the bailiff’s costs for the enforcement proceedings. Judgments are enforceable for at least 10 years so you can always hope that there may be a possibility of collecting later, with interest.
The Small Claims system is designed to afford less expensive justice when there are modest amounts at issue. It is not the appropriate court for every type of case. For example, you cannot go to Small Claims Court to evict a non-residential tenant or to obtain an injunction. The Small Claims Court is not a guarantee of success or of payment. It is, however, a less expensive venue for litigants who wish to avoid – and who can avoid – the expense of lawyers in cases of a modest value.
Me Franco Tamburro
Alepin Gauthier Avocats Inc.
This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.Contact us