Before you commence a legal action at the Small Claims Court (“Court”), it is important to find out if your legal action is one that can be commenced in that Court. Once you have decided that your claim can be pursued in Small Claims Court, you should obtain the necessary forms from the clerks at the Court. The person who initiates the case is called the Plaintiff and the person being sued is the Defendant.
You will then be required to provide necessary details in the forms such as the exact amount you are claiming, the reason for your claim, and other relevant information 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. After the documents are filed, they must be served on the defendants along with a Dispute Note form, which is also available from the clerks. You should serve the documents on the defendant by personally handing the documents to the defendant yourself, or you may choose to hire a process server to serve the documents on your behalf. In appropriate circumstances, you may also leave a copy of the documents with someone who is16 years or older at the place where the defendant usually lives or serve the documents by registered mail and service will be considered effected when the defendant signs for the registered mail. If for some reason, you are unable to serve by any of these methods, you can apply to the Court to grant you permission to serve by an alternative method, such as posting the legal forms to the door of the defendant’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 also serve the corporation by hiring someone to serve for you, or mailing the documents by registered mail. If you are having difficulty serving the document, you can always apply to the Court for to grant you permission to effect service by an alternative method. If you are suing a local authority such as the City, you should consult with a lawyer.
After ensuring that court documents have been served on defendant, you must provide Proof of service to the Court. You do this by an Affidavit of Service prepared by yourself or the person 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 defendant wishes to dispute the claim, they will file in Court a Dispute Note giving the details of their defense. Once the clerk has received the Dispute Note the clerk will set a time, date and place for the hearing and send out a notice to all parties on the date to appear. Sometimes the hearing is a pre-trial conference or mediation. The defendant may also ignore the claim and in this case, you can ask the Court to note the defendant in default.
Be prepared when you appear in Court. Check the case lists posted by the Courtrooms to find out the venue for your hearing. 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. 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. The witnesses will be likely asked to leave the Courtroom until they are ready to give evidence.
As the plaintiff, you will present your case first. State your evidence in a simple, concise and orderly manner. Have ready your receipts, warranties, contracts, any other documents or evidence that might possibly help your case. 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 are relying on information provided by 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. After presenting your case, the defendant will 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 both claims at the same time. If you are successful, ask the Court for costs and interest to be included in your award.