Small Claims Court

Table of Contents


What Am I Doing Here in Small Claims Court?Back to Top

According to Rogers Wireless Service Agreement, I signed away my contractual rights to have a Canadian court – including Small Claims Court – resolve any legal dispute that I have with Rogers.

According to Rogers, I have contractually committed myself to binding commercial arbitration for the resolution of all legal disputes with Rogers.


The binding arbitration clause remains on Rogers Wireless Service Agreement in Ontario and if an Ontarian were to enter a Rogers outlet in September, 2006 to sign up for wireless services with Rogers Wireless, he or she would sign a contract that extracts a supposedly binding legal agreement that that consumer will never sue Rogers in court.


As of July 30, 2005, that clause is no longer enforceable in Ontario as a result of an amendment to Ontario’s Consumer Protection Act. Rogers’ contract, with respect to that clause, is not worth the paper that it is written on.


Although Ontario consumers sign Rogers contracts and might thereby be misled into believing that they are held to the actual terms of the contract, Rogers issued a wee notice on-line and in the monthly invoices that go out that indicates that some Canadian consumers of Rogers might be exempt.


Retroactive Effect of the Ontario Consumer Protection ActBack to Top


Technically, I am not really covered by the July 30, 2005 amendments to the Ontario Consumer Protection Act. I signed my contract on August 14, 2005. I should not be in Small Claims Court resolving my dispute. I should be in front of a private arbitrator, paying him or her $2,000 a day to solve my wee dispute with Rogers.


Technically, Rogers could have held me to the contract.


In my humble opinion, Rogers has just very generously given retroactive effect to the Ontario Consumer Protection Act.


Generally, the retroactivity of legislation is forbidden. The legislator on its own initiative could not have given retroactive effect to the Ontario Consumer Protection Act. It should only apply to those consumers who signed contracts with Rogers post July 30, 2005.


But Rogers didn’t hold me to my contract. By entering a Statement of Defence into Small Claims Court on October 4, 2005, Rogers conceded the jurisdiction of the court, even for a contract that on its own terms technically should bind the consumer to their promise to never sue Rogers in court.


By conceding the jurisdiction of Small Claims Court in my case, Rogers implicitly recognized, I believe, that the informal legal normativity that surrounds the legislative change of the Ontario Consumer Protection Act – the legal climate generated by the Court of Public Opinion – in all of its equity, frees all Rogers Consumers in Ontario, no matter when they signed their contracts, to sue Rogers in court.


After all, Rogers’ largesse in meeting me in court should not only be extended to a law professor.


What else am I doing here in Small Claims Court?Back to Top



What Is Small Claims CourtBack to Top


The formal rules of procedure, whether in Small Claims Court or the Supreme Court of Canada, are just as exacting as any other statute or area of common law. The obligation of both parties to a legal action to observe the processes of the law to the letter generates certainty and fairness and ensures that neither party will be unfairly surprised by, for example, a summons to witness that was never received or a motion to which one party was never called to attend. Rigour and diligence in respecting legal rules – from precedents to statutory provisions to procedural rules – considerably narrows the scope of discretion (and any potential for unfairness that might arise from such a personal intuition about justice) allocated to judges.


Small Claims Court is not, however, intended to be a fetishistically legalistic forum.


Regular FolkBack to Top


The majority of parties to a Small Claims Court action are regular folks and small businesses who want to recover relatively miniscule property and damage awards for things like sofas that were never returned to a proper owner, or three months of rent that was never paid. In Ontario’s Small Claims Court, the maximum claim for damages is $10,000. Because the claims are so small, it makes little sense for a party to expend vast sums of money on lawyer’s fees and engage in the technical and costly legal manoeuvring common in courts where the stakes are higher.


Taking the clientele and goals of Small Claims Court into account, the paramount guiding principle of Small Claims Courts is that parties should be able to conduct their own cases without recourse to a lawyer. For this reason, the rules of civil procedure and evidence tend to be simplified so that they are accessible and easy to follow for the unrepresented party who is typically unschooled in the formal law.


To encourage parties to resolve the dispute within the framework of such low key legal expenditures, the maximum costs awarded against a losing party are generally set very low. Such a low ceiling in fact discourages parties from injecting their claim with the expertise of lawyer.


What is Rogers Doing in Small Claims CourtBack to Top


In part for these reasons, therefore, while Small Claims Court is a court of law, it is also a court of equity, where judges have wider latitude than in other federal and provincial courts to look for the fair resolution to the dispute, rather than the rigidly legal one, the threshold assumption being that the parties to a Small Claims Court action can’t afford a rigidly legal understand of their problem. A prevailing tone of legalistic vigilance would go against the grain of delivering justice for folks who don’t have deep legal pockets and whose claims are too banal to afford the full blown spectacle of law.


Given these set of expectations, you wouldn’t typically expect to see a legal team composed of two members of the General Counsel of a major Canadian corporation and an associate and TWO partners at a major Bay Street law firm representing one of the parties to a Small Claims Court action. Even if the claim were for the maximum available damages in Small Claims Court - $10,000 – the legal bill for such a formidable team would quickly exceed the claim.


Equity and CertaintyBack to Top


As much as Small Claims Court is a court of equity, clearly fairness demands that parties can expect predictability and certainty and a solid structure of foreseeable rules that will restrain both the parties and the court from arbitrary action. While the culture of Small Claims Court demands that particular attention be paid to the spirit of the law, the demands of justice attached to common law courts also require attentive focus on the letter of the law. Although the legal rules governing Small Claims Court are simplified, they are by no means irrelevant.


Of all common law courts in Canada, Small Claims Court has to adroitly balance the expectations of popular and intuitive justice – the justice of the common folk – with the expectations of the formal law.


Given the tension between these two competing aims, parties in Small Claims Court should calibrate their own expectations somewhere between the letter and the spirit of the law – between lawyer’s law and popular justice – and comport themselves accordingly.


I fully anticipate that Rogers Wireless and its legal team will hold me to the high standards of the law that are set for any Canadian court. I therefore consistently aim to conform to the rules of court for matters such as proper service.


What Might Small Claims Court Do to Facilitate Access to Justice for the Ordinary Consumer?Back to Top


Is it fair that an unrepresented party might have to go up against a lawyer in a Small Claims Court action – let alone a shiver of legal sharks such as Rogers legal team?


How on earth would the ordinary consumer make out?


There are Canadian jurisdictions that have taken into account the preponderant clientele of Small Claims Court – the unrepresented party pursuing a mundane claim – and have adjusted their procedural rules accordingly. Some jurisdictions have argued that lawyers are oversized and out of place in such a humble venue.


La Belle Province Back to Top


Quebec’s rules for Small Claims Court, for example, imposes considerable restrictions on use of Small Claims Court by both corporations and lawyers.


No corporation with more than five employees can sue in Quebec Small Claims Court. Rogers is precluded in Quebec from using Small Claims Court as a plaintiff to settle its legal disputes. Further, a corporation such as Rogers cannot hire a collection agent to represent it in Small Claims Court.


And the general rule in Quebec’s Code of Civil Procedure excludes the parties from hiring lawyers:


A living breathing person (a “natural person” in legal terms), if he or she is unable to appear in court, can give a spouse, relative, relative by marriage, or friend a mandate to represent them in court. Ted Rogers, if he were a living breathing party to a Small Claims Court action in Quebec, would have to appear personally in court or would have to get someone from this limited circle of living breathing people to represent him in his absence.


And a “legal person” (for example a corporation, or other “legal entity”) can only be represented in Quebec Small Claims Court by an officer or other individual working solely for it and bound to it by an employment contract. If an ordinary consumer in Quebec were to take Rogers to Small Claims Court, Rogers would not be entitled to hire a legal team from a law firm like Lang Michener, LLP - or any other lawyer for that matter – to represent it.


The general rule is that neither a legal person nor a natural person is allowed to hire a lawyer to represent them on a Small Claims Court case. The legal heat and light is turned WAY down. Asymmetries of legal force are levelled.


The exception to the rule excluding lawyers from Small Claims Court arises only when a case raises a complex legal issue. The judge, in these exceptional circumstances, can allow the parties to be represented by a lawyer.


But even then, the ordinary consumer need not quake at the thought of massive legal bills in the event that the legal issues in their case happen to be interesting. The fees and costs of lawyers in these exceptional cases (where the legal issues are complex) are borne by the government and capped by what a legal aid lawyer (not a partner at a major Canadian law firm) would get paid.


As the government foots the bill for lawyers and fees, the threshold, one can assume, for what constitutes complexity in a Small Claims Court law suit is very high. A suit for fundamental breach of contract such as my own, much though Rogers is inclined to fight it tooth and nail, generally presents the most bread and butter set of legal issues.


La Belle Province indeed…