Deciding between Small Claims Court and Superior Court
If you’re looking for a Litigation Lawyer, whether for an Employment Law matter (such as Wrongful Dismissal, Constructive Dismissal, Severance Pay), Commercial Litigation or other matter, if your case falls in the $20-40,000.00 range, a decision must be made early on whether to start a Claim in Small Claims Court (limited to $25,000 in Ontario), or Superior Court (over $25,000).
The answer may seem to be obvious – “if I’m claiming more than $25,000 then I’ll start it in Superior Court, and if it’s less than $25,000 I’ll start it in Small Claims Court.” – but in practice many considerations should go into the decision, including:
- Are the bulk of the damages “hard” damages (such as unpaid wages, an unpaid loan, stolen items, etc.) or “soft” damages (such as mental distress, Human Rights violations, defamation, etc.) If the “hard” damages are less than $25,000 you need to carefully weigh the likelihood of recovery on the “soft” damages before taking that additional step.
- A Small Claim Court proceeding may take approximately one year from starting a Claim to a trial date. Along the way there is a free mediation in front of a Small Claims Court judge. A Superior Court Claim, on the other hand, can take several years, and requires a more rigorous exchange of documents, examinations of the parties, mediation (in most cases) paid for by the parties, pre-trial, and finally the trial. Will you be able to recover the extra fees associated with those steps even if you win?
- In Small Claims Court, generally speaking the winning party receives between 15-30% of the amount claimed in legal fees at the end of the case. In Superior Court, the winning party generally receives between 60-70% of their legal fees. Carefully consider the time, expense, and likelihood that you’ll recover your legal fees before deciding which route to go.
If you’re unsure which route is better for you, speak with a litigation lawyer early on to avoid the costs and risks of trying to switch from one route to the other later on.