The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses the procedures of the Civil Division of the Provincial Court. The Civil division is often referred to as Small Claims Court.
Once you have decided it is in your best interest to sue in Small Claims Court, the necessary forms are available from the clerks at the Civil Division of the Provincial Court. The Plaintiff is the person who starts the action and the person being sued is the Defendant. Give the necessary details in the forms such as the exact amount you are claiming, the reason for your claim, and important dates and locations relating to the claim. For example, if you were given a cheque and it was returned to you because of non-sufficient funds, you should state the amount of the cheque, what the payment was for, the name of the bank, and that the cheque was returned to you because the defendant had insufficient funds in the bank.
Once you have completed the forms, return them to the clerk for filing. Once the documents are filed, they must be served upon the defendants along with a Dispute Note form. This form is also available from the clerks. Serve the documents by handing the defendants the documents yourself, or you may hire a process server to serve for you. You may also leave a copy of the documents with someone who is16 years or older at the place where the defendant usually lives. You may also serve the documents by registered mail and service is deemed affected when the person signs for the registered mail. If you are unable to serve by any of these methods, you may apply to the Court for an Order allowing you to serve by an alternative method, such as posting the legal forms to the door of the person’s residence.
If you are suing a partnership, serve the documents on one of the partners. If you are suing a corporation, serve the president, chair or other head officer, a director or the secretary of the corporation. You may also serve a manager, agent or officer of the corporation that is in the same district as the Court in which you started the action. You can find out where the registered office is by doing a corporate search through a Registry Agent. You can serve the documents by handing the documents to the appropriate person, hiring someone to serve for you, or mailing the documents by registered mail. If you are having difficulty serving the document, you may apply to the Court for an Order allowing service by an alternative method. If you are suing a local authority such as the City, you should consult with a lawyer.
Proof of service must be provided to the Court. Service can be proved by an Affidavit of Service prepared by yourself or the person you hired to serve the documents. The person who served the documents may also provide oral testimony in Court. If you mailed the documents, then a receipt of registered mail delivery and signature of the person who received the registered mail is required. The defendant has 20 days from the date of service to reply to the claim. If the defendant lives outside Alberta, they have 30 days to reply.
If the defendants wish to dispute the claim, they will file at Court their Dispute Note and give the details of their defense. Once the clerk has received the dispute note, a time, date and place for the hearing will be set. Sometimes the hearing is a pre-trial conference or mediation. A notice will be sent to all parties of the date to appear. Defendants may also ignore the claim. If this is the case, you can ask the Court to note the defendants in default.
Your witnesses should be served with a Notice to Attend Court. The Notice is advisable if you do not know your witnesses or if you are asking a police officer to appear.
Be prepared when you appear in Court. Check the case lists posted by the Courtrooms to find out where your hearing is. Give the Court clerk your name. When your case is called move forward to the tables facing the Judge’s bench. Usually the plaintiff will sit on the left side and the defendant on the right side. You may address the Judge as “Your Honor,” “Sir,” or “Madam.” Advise the Judge of any witnesses appearing on your behalf. The witnesses will be likely asked to leave the Courtroom until they are ready to give evidence.
You are the plaintiff and will present your case first. State your evidence in a simple, concise and orderly manner. Have your receipts, warranties, contracts or anything else that might possibly help your case with you. Put them in order so that you can find things quickly if the Judge asks to see them. You must have original documents as evidence or be able to explain to the Judge why you are using copies. Evidence such as photographs to help you prove your claim must be proven by the person who took the photos. If you heard information from another person, that person must be in Court to present that information. The Judge may ask you questions and may wish to examine the evidence. The Defendant will be entitled to cross-examine you and your witnesses. The defendants then present their evidence to the Court in the same way. Similarly, you are entitled to cross-examine the defendant and their witnesses.
Once all the evidence is put before the Judge, you and the defendant will summarize your case. No new evidence can be introduced at this time; you merely argue your case based on the evidence put before the Judge. If the defendants filed a counterclaim, the Court will decide at both claims at the same time. If you are successful, ask the Court for costs and interest to be included in your award.