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Court of Quebec - Small Claims Division

The Small Claims Division of the Court of Quebec (also commonly known as "small claims court") applies simplified rules. A person can claim a sum of money owed to him by someone else or can ask for a judgment on a contract.

Companies, associations, and partnerships can also file an application at the Small Claims Division, but only if they had 5 employees or less at any given time during that past year.

A special feature of this court is that people must represent themselves. If you are unable to do so, you can ask someone close to you to represent you. However, you must make your request in writing and the person has to agree to do it for free. A company, an association, or a partnership can be represented by its boss or an employee. In general, a lawyer’s services cannot be used at the hearing. That doesn’t mean that a lawyer or another legal professional can't be consulted beforehand to adequately prepare for the hearing.

A judge of the Small Claims Division can hear applications for a maximum amount of $7,000, excluding interest. An application may be about a contract that hasn't been followed (for example, you buy a car that doesn't work as well as promised) or a damage caused by another person's fault (for example, your neighbor accidentally damages your shed).

In principle, the value of a contract of more than $7,000 cannot be subdivided so as to address several applications to the Small Claims Division. However, it is possible to take several lawsuits if instalments are due on different dates. A person can also choose to reduce his claim to $7,000 to have the right to be heard by the Small Claims Division.

The Small Claims Division does not hear:


A trial in small claims court is less formal than a trial before other courts. The judge is the one who questions the witnesses. Since there are no lawyers, the judge attempts to help each side express all of its proof so that he can come to the right decision. That decision can be made right away. It can also be made in the following 4 months and sent by mail to both sides.



Judicial characters and concept

Judge

I’ve been a judge for several years now. Before being named a judge at the Court of Quebec, I was a lawyer and practiced civil law. All the judges of the Court of Quebec, Civil Division, take turns sitting in the Small Claims Division.

I enjoy the direct contact that I get with members of the public when I sit in the Small Claims Division. I really feel that I am rendering justice. In this court, people aren’t represented by lawyers. I can, and must, help each of them in a fair and impartial manner so that the law is clearly stated and upheld.

In the courtroom, I’m the one who makes all of the decisions in a case: I ask witnesses questions and I decide which of the documents submitted by the parties are useful to the case and which are not. Of course, I have to follow the rules of evidence, but I have a lot of freedom to decide how the hearing will unfold. Above all, I want to uncover the truth: I want to know what really happened in the case that is before me.

Most people who come before me are unfamiliar with the law and the legal system. It is up to me to help them understand, in only a few minutes, the basic rules governing the hearing, especially the one that says that each party must be allowed to speak in turn – without being interrupted. Just this morning, I presided over a case about a dog bite. The defendant was constantly interrupting the plaintiff, and was fairly aggressive about it. At one point, I even had to interfere and ask him to stop interrupting so that we could go on with the hearing.

Before the hearing about the dog bite, I had read the documents that the parties, Claude and Geneviève, had submitted into evidence. I already had a fairly clear idea about their dispute from the documents that I had read. But, during the hearing, one of them started talking about a document that hadn’t been included in the evidence that I had read. I had to remind the parties that I could only base my decision on the evidence that was before me. Since I didn’t have the so-called document and it was never mentioned in any of the written proceedings made by the parties, I couldn’t take it into account. The person who wanted me to have the document explained that he initially thought that it wasn’t useful but because of the different events that had unfolded since then, it became important to file the document in question. I decided to allow him to file the document into the court record and gave the other person enough time to see it.

During a hearing, if the situation permits it, I also try to reconcile the parties.

Once I have a good idea of the situation, I apply the rules of law and arrive at a decision. Finally, I make a judgment – either in court, before the parties, or in writing, in my office later on. The clerk will send the parties a copy of this judgment.



Plaintiff

About a year ago, the dog belonging to my neighbor Claude attacked me and bit my arm quite badly. His dog wasn’t on a leash. I checked with the City, and they told me that it was against the law to leave your dog off a leash. I think it’s really irresponsible to let dangerous dogs like that run freely. A child could’ve been bitten. After I was treated for the bite, I received a bill from the ambulance service and I had to miss three days of work. Every night since then, I have had nightmares. I still feel some pain in my arm.

I went to see a lawyer. He explained that I could try to claim for the damages that I suffered from the dog’s owner, Claude. So I got all of my evidence together: my bills, pictures of my injury, and my medical report. Another one of my neighbors, Eric, came to see me and I learned that he had seen the whole thing. He, too, was upset about what Claude’s dog had done and especially about the fact that the dog was still being kept untied. Eric has two young children of his own. I talked to him about my decision to sue the dog’s owner. He told me that he could be available if I ever needed a witness. I took down his contact information.

I started off by sending Claude a registered letter, called a demand letter. I asked him to pay for the damage that I had suffered. He never answered my letter. I had the impression that I would have to go all the way to court – otherwise he would refuse to pay. I went to the courthouse to see the clerk of the Small Claims Court. The clerk explained the steps that had to be taken. He helped me fill out the forms I had to use to explain the important facts about my run-in with the dog. I gave him my bills, the medical report, the pictures and Eric’s contact information.

A few days later, I got an answer from Claude. His version is different from mine. He especially objects to the ambulance bill. He also argues that I hurt his dog, and even claims that I should pay his veterinary bill! I didn’t notice whether or not the dog was hurt. It’s true that I hit him…so that he would let go of my arm! I don’t see why I should pay for the bill though; after all, I was the one who was attacked.

Finally, I received a notice of hearing, and the date of the hearing was approaching. I called Eric and he promised to be there. The night before the trial, I slept well. The next morning, though, I was very nervous – I doubted my own story and kept forgetting all of my arguments.

At the courthouse, I found the courtroom without any difficulty. There were already plenty of people there. The clerk called our case, but the judge hadn’t arrived yet. She had us take an oath to tell the truth. After that, we waited our turn. I left for a couple of seconds to sit in the hallway and relax, and to put my papers in order one last time.

We finally went before the judge. I explained everything I remembered as well as I could. I gave the judge the doctor’s report, the ambulance bill, the photos and the bill from the post office. I explained what I had been suffering from since the incident: pain, stress, fear of dogs and regular nightmares. After my testimony, and to my surprise, it was the judge who asked my witness, Eric, all of the questions. I thought that I was the one who was going to be asking him the questions, just like on television – but it was nothing like that! The judge knew exactly where she was going. She asked specific questions and wanted precise answers. We then heard what Claude had to say. He didn’t remember the incident in the same way that I did. He wasn’t very kind to me in his testimony, but I restrained myself from talking back. The judge seemed to have things well in hand.

In the end, the judge said she wanted to think about our case and she sent us on our way. She said we would receive her decision in the mail.



Defendant

I am the defendant. That is, I am being sued in Small Claims Court by Geneviève, the plaintiff. She says that I owe her money because my dog bit her. She was bitten – that’s true. But it was her fault. My dog is friendly; she’s the one who provoked him and I told her to let go of the dog. This whole situation really annoys me. It started when I received a letter from Geneviève, a demand letter, in which she asked me to compensate her for her ambulance fees, the days of work she had to miss, plus $2,000 for pain and stress. I didn’t answer the letter: I don’t owe her anything and her claim is really exaggerated. I think she’s just trying to make money off of me. Plus, she broke my dog’s paw when she hit him after she was bitten. I had to pay a hefty veterinary bill, myself.

A few weeks after receiving the letter, I received another document. What a shock – Geneviève was actually suing me in Small Claims Court! I didn’t think she was really serious when I got the demand letter. I went to see a lawyer, but he explained that lawyers aren’t allowed in Small Claims Court. Still, he gave me some legal advice. Among other things, he explained that it was up to the plaintiff to prove that I owed her money. He also said that I could try to claim from Geneviève, the money that I paid to the vet to have my dog’s paw fixed.

I noticed that Geneviève indicated in her documents that our neighbor, Eric, would be a witness. But he wasn’t even there on the day of the incident! At least I didn’t see him there. That guy doesn’t like me and I know that he will try to cause me trouble. What is he going to say? I don’t have any witnesses…does that mean that I lose? I prepared as well as I could. I got information about civil liability. I went to the courthouse within the time limit indicated in the documents filed by Geneviève. There, a person at the counter – the clerk – told me that I had the right to oppose Geneviève’s claim. She helped me to write down my version of what had happened and told me that this was my “contestation”, which is also called a “defense”. I told her everything that I remembered. The clerk then explained to me how I could claim my vet bill in the same file. The clerk called this a “cross demand”. I attached to the cross demand my vet bill and the report that the vet had prepared for me. I put the name of the veterinarian down on my witness list.

So here we are on the day of the hearing. I’m really nervous. I arrived on time. I had no trouble finding the courtroom, and the veterinarian came too. He didn’t seem too happy to be there. He told me for the second time that he would send me a bill for the workday that he is missing.

We had to wait a pretty long time for our turn. The judge asked Geneviève to explain what had happened. She told a very different story from the one I remembered. I tried to interrupt her to set the record straight, but the judge told me that I had to wait my turn to speak. She explained that I would have a chance to explain my point of view later. I didn’t understand at first that each person gets a turn to talk. Our neighbor also spoke. His story was closer to the truth than what Geneviève had said. I was surprised; I guess that guy is O.K. after all.

Finally, the judge let me tell my side of the story. I couldn’t wait to tell the judge my version of things. When I started talking, my heart was pounding so fast that I couldn’t get the right words out. I had been waiting for this, imagining it for weeks now, but it wasn’t the same in real life. In the end, the judge didn’t seem so interested in knowing that I had told Geneviève to let go of the dog. She focused on the fact that my dog wasn’t on a leash. The veterinarian also spoke, explaining the injury to my dog’s paw.

Finally, the judge said that she would have to think about our case a bit, and that we’d get the decision later in the mail. Then she sent us on our way. I really want to know what her decision will be.



Court clerk

In the courtroom, I’m the person sitting at the desk in front of the judge and facing the audience. In a nutshell, I am the secretary of the court. In the morning, I bring to the courtroom, all of the files of cases that are supposed to be heard on that day. Before the judge arrives, I prepare the session. I figure out who is present and who is absent among the people who have been summoned. To do this, I take the list of all the cases of the day, also called “the roll”.

I call the cases one by one off of the roll and ask the people involved to approach my desk. If there are witnesses summoned, I make sure that they are there. When people are ready for the hearing, I have two choices depending on the judge presiding that day. Some judges prefer that I immediately “swear in” the people that will testify. That means that I ask them to take an oath to tell the truth when testifying later before the judge. Other judges want to be present when the people take the oath.

When everyone present has come to see me at the front, I have a fairly good idea of what will happen at each hearing. I inform the judge of the situation and describe to her the state of the roll. For example, I might say: “The first three cases are ready to proceed, but the defendant in the fourth case is missing and, in the fifth case, one witness will be late.”

Once the scene is set, the judge enters the courtroom. Then we start that day’s session. The hearings happen one after the other. The parties involved in the first hearing are ready to begin.

During the hearing I note the details about what takes place in a document called the “minutes of the hearing” (also called “procès-verbal”). I write down who’s speaking, the name and address of each witness or party who testifies. I am also the one who receives any exhibits that are given to the court as evidence. I register each exhibit that’s received into the court’s file, meaning that I number them so that they can be located with ease later on.

After the hearing, I finalize the minutes of the hearing. I make sure that the courtroom is empty and I bring all the files to my office so that we can process them and eventually reclassify them in the filing room until the next step.



Court usher

Before the judge makes her entrance, I bring her books into the hearing room and place them on her desk. I also bring water for the judge. I find out from the court clerk if the people are ready to begin the hearing. If they are, I will go and let the judge know. Otherwise, I will wait until everyone is ready. When the judge comes in, I say the following words so that everyone can hear them:

"All rise! The Court of Quebec is now in session, presided by Madam Justice ______________ ."

When the judge sits down, I say to the people:

"Please be seated."

At that moment, the hearing begins. In some courthouses, I take care of several courtrooms at once. So, I don’t stay in the courtroom, particularly during the hearing. Rather, I take care of several tasks. For example, sometimes documents must be photocopied or it could be necessary to get another court file from the filing room. When these kinds of things come up, I am the one people count on. The other day, a witness, who was there at roll call, was nowhere to be found. I went looking for him and found him asleep in the hallway.

I am also there to ensure that decorum and order are observed in the courtroom, especially if the special constable isn’t there.

When the judge is ready to leave, I say to everyone:

"Please rise. The hearing is adjourned."



Witness


I received a document in the mail recently. The document was entitled “Writ of subpoena (summons to appear)”. If I understood it correctly, it said that I had to appear at Small Claims Court in three weeks to testify at a hearing. At first, I had no idea what it was about, but when I saw the names of my neighbors, Claude and Geneviève, on the document, I remembered. Last year, from my bedroom window, I was a witness to an incident in the street in front of my house: Claude’s dog bit Geneviève’s arm. I couldn’t believe it! I remember it like it was yesterday.

I almost regret telling Geneviève that I saw everything and that she could count on me for help. It’s really none of my business, and it’s going to cause trouble if I take sides in this whole thing. It really worries me. At first, I thought about not showing up at all. But after reading the document in detail, I realized that it wasn’t like a reminder for a dentist appointment: by law, I have no choice but to go!

Today is the day of the hearing. I was so nervous that I didn’t sleep a wink last night. What if they ask me questions that I can’t answer?

Ok, I’m finally at the courthouse. I found the courtroom, where my neighbors were already waiting. The one who was bitten, Geneviève, came over to greet me, but the other one, Claude, stayed in a corner and glared at me. I sat down. Suddenly, a person in a black robe, seated behind a desk up front, asked us to approach her. She explained that she was the court clerk and that she was going to have us sworn in. My neighbors, another guy who was with Claude, and I took turns swearing to tell the truth. Then the court clerk invited us to sit back down in the public seating area. She repeated this with everyone there. The judge came into the courtroom a few minutes later. She sat at the big table behind the court clerk.

We saw one or two cases before ours. I was happy to get a chance to see how it worked beforehand. Finally, it was our turn. We went to the bench. The judge asked Claude and Geneviève to explain what had happened on the day of the dog bite. Geneviève told her story and then Claude told his. While Geneviève was talking, Claude constantly interrupted her and tried to argue, but the judge got impatient with him and told him to wait his turn.

Finally, the judge asked me to tell her what I knew about the story. I explained as well as I could what I remembered about the incident. She asked me about several details. My memory of the event wasn’t as good as I thought it was. Actually, I realized that I had forgotten many details and after a couple of questions, I even started to doubt some of the things that I thought I had remembered. I should have followed the advice of my cousin Marc, who is a lawyer, and written down my recollection of what had happened. Maybe then I could even have avoided testifying. All the same, it went very well. After the testimony, the judge said that she wanted to take a few days to think about the case and give her judgment. She said that we could leave the courtroom. I went home, but I’ll never forget that day.



Expert Witness


I’m an expert witness. Actually, I’m just like a regular witness, except that unlike other witnesses, I have the ability to give my opinion on the facts of the case that fall within the scope of my expertise. My expert opinion can make the difference between winning and losing a case.

I have been a veterinarian for more than thirty years. I was a veterinary assistant at a clinic before becoming a vet. Since I worked in a very well-known clinic, I was able to benefit from professional training courses in my field, especially on dogs, which are my favorite animals. I know veterinary medicine like the back of my hand. Over the years, I have occasionally had to act as an expert witness in veterinary medicine. Before I testify, the judge usually asks me a few questions about my qualifications to check if I really am an expert in the field.

When I treated Claude’s dog, I didn’t know that there would be a lawsuit about it. As soon as Claude called to ask for a written report, though, I figured things would end up before a judge. In this case, my work was easy. All I had to do was to explain in my report what I did to treat the dog. To do this, I attached my internal reports detailing the care and medication that I gave, and copies of the X-Rays that I administered.

If my presence in court is needed, I receive a summons, also called a “summons to appear” or a “writ of subpoena,” requiring me to go explain my conclusions to the judge and defend my report, if necessary.

My opinion is only needed when my expert knowledge can enlighten the court on a subject. It has to be about something on which most people don’t have sufficient knowledge to be able to form an opinion. But be careful, my opinion is useless unless the facts on which it is based are proven to the judge.



The Public


Some court decisions can have important effects on my life and on the lives of other citizens just like me. It therefore makes sense that I have the right to attend court hearings to make sure that justice is served. I can attend any and all of the hearings in Small Claims Court if I like.

In Small Claims Court, there usually aren’t huge crowds waiting to hear the cases. The files dealt with here are rarely controversial and aren’t usually that interesting for the general public. Most people present in the courtroom are there because they are waiting for their turn to be heard by the judge.

Whether I am a witness, an expert, a representative, a party or just a casual observer, I can stay in the courtroom as long as I respect decorum. The moment the judge enters the room, I have to stand up and stay standing until she sits down and the court usher invites the other people present to be seated. Afterword, I must remain silent; I can’t talk to the person sitting beside me or express my approval or disapproval at what’s happening in the courtroom. It is important for justice to occur in a calm and impartial setting.

When the judge leaves the courtroom, I must stand again and wait for her to leave before moving from my place. During the hearing, I must avoid entering and exiting the courtroom. If I want to get ready for my own case, I can go outside, into the hallway. If I need a table, a chair and some privacy, there are small rooms available just for that purpose, right near the courtroom.

Journalists are also allowed to be present in the courtroom, but they rarely come to Small Claims Court. They provide people with information about what happens during the hearings and about the evidence that is presented there.

The public aspect of our justice system is fundamentally important. The fact that we, as citizens, can be present in the courtrooms to watch what happens in the different cases, assures us that the rules of law are being correctly applied and that justice occurs equally for everyone.



Recording


In Quebec, a digital recording system preserves what is said in every courtroom. Contrary to what we see in old movies, a stenographer does not type out what every person in the courtroom says. You will never hear the judge saying "Please read me the witness’s statement" or "This witness's statement shall be struck from the Court record".

In real life, the recordings of a trial can serve many purposes. Here are some examples:


The way that the recording system works is quite simple. All of the courtrooms are hooked up to a digital recording system through a network of microphones, wires, and loudspeakers. The court clerk begins the recording at the beginning of the hearing. He stops it during recesses and at the end of the hearing.

Getting a recording: where, when, and how


To obtain a recording, you must go to the Court house where the trial took place. There is a person in charge of recordings there. At the counter, you will fill out a form where you will specify the date of the hearing, the room number, the name of the judge and the exact time when the hearing started and ended. If you are unsure, you can consult the "minutes" of the hearing (also known as "procès-verbal" or "p.-v.").

The "minutes" are a document prepared by the court clerk in order to give an overall view of the trial. You can consult the minutes by going to the office of the clerk ("greffe") of the relevant court. Sometimes, the person in charge of recordings can give you the minutes.

There is another benefit to consulting the minutes of a trial: you can find out the exact time at which the testimony or the pleadings that you need began. That way, you won’t have to pay for unwanted parts of a recording.

A recording costs $0.30 per minute. You have to specify whether you prefer a CD or a CD-ROM. Plan ahead of time since it can take at least 3 days before it is ready.

For criminal and penal cases, you have an added option: you can ask for a transcript (written version) of the desired portion of the trial. It will cost you $3.70 per page and will take at least 30 days.

If you need the official transcript of a trial for other types of cases, you can start by getting the recording. Then, you can hire an official stenographer to transcribe what is said on the recording. Sometimes, it is necessary to obtain an official transcript to use in court.

A few restrictions


You cannot have access to all trial recordings. For example, the public cannot have access to hearings held "in camera" such as family matters heard in Superior Court and matters involving children and youth, heard in the Youth Division of the Court of Quebec.

There are also special rules for each Court. For example, at the Superior Court and Court of Quebec levels, the judge can decide to pronounce her judgment verbally. That judgment will have the same effect as if it had been written down. In those cases, you cannot obtain a recording of the verbal judgment unless you first obtain the permission of the judge who pronounced it.



The proceedings, step by step

This section explains the main steps in presenting a case in court. The idea is not to turn you into a legal expert, but simply to make sure you’re informed!

Ce texte fournit des indications complémentaires à l'onglet « Les procédures, étape par étape   [http://www.educaloi.qc.ca/cotecour/cour_quebec/division_petites_creances/procedures/]».

Nous vous rappelons que si vous êtes une des parties  [http://www.educaloi.qc.ca/lexique/P/86] dans un dossier de petites créances, le greffier doit vous aider à préparer les documents nécessaires. Il ne peut cependant pas vous conseiller des arguments.

1. Demand letter

Before taking a lawsuit against someone, it is recommended, and even sometimes mandatory, to send them a letter called a “demand letter”. This letter formally requests that the other person do what they have to do.

In this letter, the creditor:


The rules concerning the demand letter are complex and varied. Just remember that it is strongly recommended not to take any chances and to send one to the debtor in all cases.

There are several advantages to sending a demand letter. For example, the letter itself might be enough to convince the debtor to satisfy the creditor’s demands. The demand letter could also lead to negotiations that may help to resolve the dispute.

Lastly, if legal action is taken, the date the debtor received the demand letter on is often used as the starting point for calculating interest. For more information, consult our Infosheet: Demand letter  (http://hwww.educaloi.qc.ca/en/loi/nosautrescapsules/31/).



2. The application

The “application” is a written document in which the plaintiff outlines the main points of her dispute with the defendant. The application marks the beginning of the lawsuit taken by the creditor against her debtor.

At this stage, the plaintiff pays the court fees and files the application with the court clerk at the courthouse. The application must be supported by a sworn statement and by the documents that the plaintiff intends to submit as evidence. In the statement, the plaintiff agrees or declines, in writing, to take the conflict to mediation. We will return to the issue of mediation a little later.

For more information, consult the “How to Prepare  (http://www.educaloi.qc.ca/en/cotecour/court_quebec/small_claims_division/preparation/)” section of this court.

Where to file the application


When a person wants to sue another in the Small Claims Division, she can choose to proceed before the court where:


When the plaintiff lives more than 80 km away from the defendant, the plaintiff can file her application with the court clerk in her own area (district) but the proceedings must still take place in a district chosen from the list above. The clerk in the plaintiff’s home district will transmit the application to the clerk in the district where the plaintiff chooses to proceed. The defendant, as we will see later on, can request that the hearing take place somewhere else.

The court office (“greffe”) and clerk


The clerk of the Small Claims Division, an officer of justice, is in charge of the small claims files. He is the one who receives the application and collects the court fees at the counter of the court office. The clerk has a duty to help the parties by giving them information or even by writing some of the paperwork for them.

The clerk has the power to refuse an application, particularly when it does not conform to the admissibility criteria required by the Small Claims Division. This is the case if, for example, the amount claimed exceeds $7,000, the litigation concerns an apartment lease, or the plaintiff is a business with more than five employees bound by employment contracts. The plaintiff can contest the clerk’s refusal before a judge no later than 15 days after learning about the clerk’s decision.

After receiving the application, the clerk ensures that the defendant receives a copy of it, along with a list of the plaintiff’s supporting documents. These will be sent by registered mail, or will be delivered by a bailiff. This process is known as “service” or “notification”.

The co-plaintiffs and the co-defendants


When several plaintiffs share the same reasons for suing the same defendant, they can file a joint action together. However, the judge can decide to treat each claim separately.

It is also possible for the plaintiff to sue several defendants at the same time. We then call these co-defendants. For example, a plaintiff sues both the vendor and the maker of a piece of furniture that was delivered in bad condition.



3. Service of the application

Once the application is submitted to the court clerk, the defendant must learn about it. That’s why the clerk serves him a copy of the application, along with a list of the supporting documents filed by the plaintiff and a notice setting out the options available to him. This step is called the ‘notification’. Usually, the clerk notifies the defendant by sending him the documents by certified or registered mail.

The defendant then has the following three options:


Whatever his choice, the defendant must respond to the application within 20 days of being notified. If he fails to indicate an option to the clerk within the 20 day period, a judgment can be made on the application in his absence without further notice or delay. The defendant must submit to the judgment as if it had been made in his presence, following a hearing. For more on this subject see step 10 on "The judgment".



4. The defendant’s options

The defendant who receives an application can choose to pay the full amount claimed by the plaintiff. The defendant can also negotiate with the plaintiff in order to amicably settle the dispute. Finally, if he totally or partially disagrees with the claim, the defendant can contest it. For all of the above options, the defendant has 20 days to indicate his choice to the court clerk.

Payment of the full amount claimed


If the defendant wants to pay the amount claimed, he can pay the plaintiff directly or submit the payment to the clerk at the courthouse. The payment must cover the amount claimed, the court costs, and the interest.

Settlement


The defendant can also negotiate with the plaintiff to resolve the dispute. They can decide together on the amount to be paid or they can agree on a way to pay the whole amount claimed. This often occurs when a defendant is unable to pay the amount claimed in a single installment.

The defendant who chooses this option must send the plaintiff a proposal to settle the dispute. This proposal can be made in writing and directly on the form provided by the clerk. If the parties come to an understanding, they must both sign and deposit the written agreement at the office of the clerk. One of the two parties can ask the clerk or the judge to approve the agreement, which would then have the same value as a court judgment.

If the plaintiff does not accept the proposed settlement, the defendant has the choice to either pay the amount claimed or to contest the application.

Contesting (disputing) the application


A defendant contests the application when he does not agree with its grounds (reasons) or conclusions (what the plaintiff is asking for), and he would like to tell the judge about his side of the story.

The defendant must state his reasons for contesting the application on the form given to him by the clerk. He must include a list and attach the exhibits (example: documents, pictures) that might be used as evidence. He must hand in his “contestation” at the court office and pay the court fees associated with it. The contestation must be supported by a sworn declaration.

The clerk will then serve the plaintiff with a copy of the defendant’s completed form, including the list of the defendant’s exhibits, if any.

For more information, consult the "How to Prepare  (http://www.educaloi.qc.ca/en/cotecour/court_quebec/small_claims_division/preparation/)” section of this court.

Mediation


If the defendant chooses to contest the application, he can request that the file be submitted to mediation. To do this, he must fill out the appropriate section of the form provided by the clerk. Please note that choosing mediation does not stop the 20 day delay for filing a contestation from running out. The defendant still has to do this or a judgment can be made in his absence after 20 days have passed from the moment he received the application.

If both parties accept to try to settle the dispute by going to mediation, they are summoned to a mediation session by the clerk. If one of the parties does not want mediation or decides to no longer participate in mediation, the clerk ensures that the file is brought to court. A date is then set for a hearing.

Whether they choose mediation or a hearing before a judge, the parties will always receive a notice detailing when and where the mediation session or the hearing will take place.



5. Transfer to another judicial district

The province of Quebec is divided into different judicial regions called districts.

All claims in Small Claims Court must be filed in the district chosen by the plaintiff from the possible options given by the law (see 2. The application). The defendant, however, can also request that the case be heard in a different district from the one chosen by the plaintiff. For example, let’s suppose that the case relates to an accident that happened in Québec City. The defendant lives in Montreal and the plaintiff in Gaspé. If the plaintiff filed her claim in Québec City, the defendant could request that the file be transferred to Montreal.

To do this, the defendant must complete the section of the form called “Application for referral”. Once this is done, the clerk advises the plaintiff of the request to transfer the case. Only the judge can accept or refuse the transfer request. The clerk communicates the judge’s decision to the parties. If the judge accepts the transfer, the file is then passed on to the clerk in the new district and the proceedings continue as if the claim had been made there.



6. Recourse in warranty

In some cases, the defendant can contend that it is not him, but another person, who should be held responsible for the claim. The defendant can involve this other person in the lawsuit. This procedure is called a “recourse in warranty”.

For example, suppose you buy a new television from a retailer. The television works well, and after a few weeks, you decide to resell it to your neighbor. Shortly after, your neighbor tells you that the television is no longer working. The repair shop that he took it to told him that there was a defect in the manufacturing. Your neighbor sues you for the cost of the television. You “implead” (involve) the retailer or the manufacturer “in warranty” because you believe that he is the one who should be held responsible for your neighbor’s claim.

The defendant who calls another person in warranty has to explain his reasons in the section of the form entitled “Impleaded party”. The defendant should also give a list of documents proving that the party called in warranty should be the one held responsible. The defendant then pays the court fees requested.

The clerk advises the plaintiff of the recourse in warranty and sends a copy of both the application and the defendant’s contestation to the person called in warranty. The clerk includes a copy of the list of exhibits submitted by the plaintiff and by the defendant. The clerk also advises the person called in warranty that he must go to court at the defendant’s request, so that he can express his point of view at the hearing.



7. Cross demand

In some cases, the defendant not only wants to contest the claim but also to obtain a sum of money or something else from the plaintiff. In these cases, the defendant can make a counter claim called a “cross demand”. This procedure allows both parties to give evidence on two applications at the same hearing. The defendant who makes a cross demand is called the “cross plaintiff” and the original plaintiff is called the “cross defendant”.

For example, suppose a plumber comes over to your house to fix a leak. After he leaves, you notice that although he fixed the leak, he damaged your bathroom wall. You refuse to pay his bill and the plumber sues you. You make a cross demand in which you ask him to pay for the repair of the bathroom wall.

You can make a cross demand by filling out the section in the defendant’s form called “cross demand”. You also have to support your claim with a sworn declaration. Please be aware that the cross demand must originate from the same source as the principal application or from a related source. It must also satisfy the requirements applicable to the Small Claims Division.



8. Mediation

Mediation is a process where a neutral third party intervenes in the dispute between the parties so as to help them negotiate a fair agreement.

If all of the parties write in their paperwork that they wish to submit their dispute to mediation, they will receive a notice telling them the date and place of the mediation session. Mediation is free. When the parties are summoned to a mediation session, they submit their dispute to a lawyer or to a notary who has been certified as a mediator by their respective professional order. The mediator examines the dispute and the evidence. The mediator then helps the parties find a solution to their dispute. If mediation fails, the mediator reports back to the court. The clerk will then take the necessary steps so that a hearing can take place before a judge.

Drafting an agreement
If the parties agree during mediation, they draft and sign an agreement. They then file the agreement or a notice at the office of the court to confirm that the case ended in a settlement. If the agreement is filed, it is approved by the clerk or the judge and then has the same value as a court judgment.

Confidentiality in mediation
It is important to note that during mediation, the offers made by the parties or the conversations that were held between them in order to try and settle the matter, cannot be put into evidence or even discussed before a judge, unless both parties agree.

If mediation fails, however, the mediator drafts a report for the judge. In this report, the mediator summarizes the evidence of the parties and pinpoints the exact issues on which the parties failed to agree.



9. The hearing

It is then that the parties present their evidence to the court, through their witnesses and documents. During the hearing the parties try to convince the court of their respective points of view.

If no agreement is possible, the application goes before a judge at a public hearing so that she can reach a decision after considering the evidence given. If a hearing must take place, the parties will receive a notice of hearing in the mail. This document is a summons to the court, stating the time and place of the hearing.

For more information, please see the section “How to prepare”.

How the hearing unfolds
On the day of the hearing, once the parties have entered the courtroom, the clerk swears them in. Then, the judge directs the hearing:





10. The judgment

The judgment is the decision of the judge regarding the application or the cross demand (amongst other things). The judge can reject the application or accept it in whole, or in part. The judge can give her judgment immediately after hearing all of the evidence that the parties had to present. We would then say that the judge rendered her judgment “from the bench”. The judge can also choose to give her decision at a later date in order to think about the case or to verify certain things. This time where the judge gives some thought to the matter is called the “deliberation”.

When the judge grants the application she can, for example, condemn a person to pay a sum of money or order a person to comply with a contract.

The judgment is final. It cannot be appealed. This means that a party unsatisfied with the judge’s decision cannot contest it before another court, except in very rare situations.

Written or verbal judgment

The judgment on an application contested by the defendant must be made within 4 months of the hearing, in writing. Unless the judgment is rendered from the bench, i.e. in the presence of the parties, the clerk must send a certified copy of the judgment to the parties as soon as it is rendered. The clerk also sends a notice to the losing party, letting him know that the judge decided against him. The notice specifies that if this person fails to pay the amount due he risks having his property seized and—in certain cases—sold in a judicial sale. The seizure and sale are part of what we call the procedures for the forced execution of a judgment, as we will see later on.

The revocation of a judgment
It is possible for a party who was prevented from defending himself— due to surprise, fraud, or for another reason deemed sufficient by the judge—to request that the decision be revoked (cancelled). A revocation, however, is considered exceptional and only applies where there are very serious reasons. For example, forgetting to show up at the hearing is not a sufficient reason to justify a revocation. On the other hand, if the defendant was not at the hearing because, for example, he never received the notice of hearing, he is more likely to succeed. Revocation is not a way for a losing defendant to contest a decision with which he disagrees.

The request for revocation must be made in writing, using the “Application for revocation of judgment” form. The application must be supported by a sworn declaration. There are costs for presenting this motion which must be filed at the court office no later than 15 days after the party requesting the revocation learns of the judgment. The judge or clerk examines the request for a revocation and decides if it is admissible. If the request is accepted, the procedures for the forced execution of the judgment are suspended. The clerk then informs the parties, who are summoned to court again.



11. Execution of the judgment

If a judge orders one party to pay money to the other party, the losing party must respect this judgment within a short period of time. This stage is called the execution of the judgment. If the condemned party does not fulfill his obligation to pay, the creditor (the person owed money) can legally force him to pay.

Time limits for executing the judgment
If the judge orders a party to pay a sum of money, this party must respect the judgment within 30 days. In the case of a judgment rendered following a hearing where the defendant was absent, the time limit to pay is 10 days.

Voluntary or compulsory execution
If the condemned party willingly obeys the judge’s decision, the judgment is executed and the proceedings will be over. If the condemned party does not fulfill his obligation to pay, the creditor can legally force him to respect the judgment. To do so, the creditor would initiate the procedures for a compulsory execution of the judgment.

The law provides tools to the party wishing to execute a judgment by force so that she can learn about her debtor’s financial situation and seize part of his salary or of his goods and put them for sale. The creditor can sell this property and pay herself with the proceeds.

For more information, consult the Infosheet “How to prepare” in the Small Claims Court section.

Execution: the responsibility of the creditor
The execution of the judgment is the responsibility of the creditor, not the court. At this stage, however, the creditor can still get help from a lawyer, a bailiff, or a clerk. In the case of a seizure, a bailiff must be involved because he is the only person allowed by law to seize and sell any movable property (as opposed to immovable property such as land and houses).



How to prepare

Ce texte fournit des indications complémentaires à l'onglet « Les procédures, étape par étape   [http://www.educaloi.qc.ca/cotecour/cour_quebec/division_petites_creances/procedures/]».

Nous vous rappelons que si vous êtes une des parties  [http://www.educaloi.qc.ca/lexique/P/86] dans un dossier de petites créances, le greffier doit vous aider à préparer les documents nécessaires. Il ne peut cependant pas vous conseiller des arguments.

The demand letter

When a debtor willingly refuses or neglects to pay the money that he owes, the creditor can turn to the legal system for justice to be served. Before taking legal action, however, the creditor must, as a preliminary condition, put the debtor in default. This means that the creditor must notify the debtor of his intention to claim what he is owed.

Ideally, a demand letter is sent by registered mail or by another method that allows the creditor to prove that the debtor received it. The demand letter and the proof of its reception are then put into the court file to be used as evidence. It is important for the creditor to write her contact information on the demand letter so that the debtor can reach her, particularly to come to an agreement or to discuss payment.

At this stage, the creditor can choose to hire a lawyer to write the demand letter, make sure that the debtor gets it, and, in some cases, communicate with the debtor in an attempt to settle the case before taking legal action.

Example of a demand letter:

WITHOUT PREJUDICE

Date
Address
Object: Demand letter

Mr. (or Mrs./Ms./Miss as the case may be)

On September 2nd of last year your dog bit my arm. I had to be taken to the hospital by ambulance. I suffered a lot and I had to miss three days of work. In total, I suffered $ 2,500 in damages:

- Ambulance: $ 100
- 3 days of work missed: $ 600
- Pain, stress, and inconveniences: $1 800

You will be in default if you fail to pay me $ 2,500 in damages, plus interest and the additional indemnity provided by law within the following 10 days.

If you do not comply with this demand letter, I intend to take legal action against you personally, without further notice or delay.

Do govern yourself accordingly.

Signature

Address of the creditor

Regardless of the nature of the claim, the demand letter must consist of the following three essential elements:


For more information, consult our Infosheet entitled The demand letter  (http://www.educaloi.qc.ca/en/loi/consumers/31/) in La Loi Vos Droits.



The decision to sue or to contest

Do you have a “good” case?

The decision to start legal proceedings or to contest them should not be taken lightly. You must be sure to have a good case. In certain instances, the plaintiff (or even the defendant to a certain extent) would be wise to take certain steps to make sure that her lawsuit is legally justified. This would not only allow her to better prepare, but also to avoid the costs and disturbance of an unnecessary lawsuit.

The Éducaloi website, particularly the section La loi vos droits, provides a wealth of free, plain-language legal information that the plaintiff or defendant can consult. If you are seeking advice, you can retain the services of a lawyer in order to have your file evaluated. The lawyer can make certain recommendations or give advice.

There are also other issues to consider when deciding whether or not to sue or to contest a claim.

Time and Cost

Legal proceedings require a personal investment of time and money. You must take into consideration the time required to:


In addition, the cost of photocopies, transportation, legal fees, time spent in court, fees for- where applicable- a lawyer, expert or bailiff, must be considered as part of the total costs. Ring these costs up for a total amount and compare it with the sum of money that you are about to fight for. The judge might order your counterpart to pay a portion of these costs but only if they are fair, useful and reasonable and most importantly, if you win the court case.

Finally, a lawsuit usually creates an important amount of stress. Are the energy invested and the time spent worth what you hope to achieve by going to court?

Ensuring the solvency of the person that you wish to sue

When a sum of money is sought, it is important to know whether the debtor has the ability to pay if the judge orders him to do so. The ability of the debtor to pay, which is called his solvency, must be evaluated before taking the decision to sue. Please note, however, that the person who wins his case has 10 years to execute the judgment (please see the section specifically on the execution of judgment to learn more). A plaintiff can thus choose to sue a person who doesn’t have a lot of money in the hopes that, in the coming years, his financial situation will improve.

Prescription: don’t wait too long to sue

The law says that the plaintiff loses his right to sue if the time limit for doing so imposed by the law has passed. This is called the prescription period. If the prescribed time limit has passed when the plaintiff brings her lawsuit forward, the defendant can ask for the lawsuit to be rejected.

For the majority of cases handled by the Small Claims Division, the prescription period is three years. The Civil Code of Québec is the law that deals with the question of prescription. Different prescription periods exist depending on the type of legal problem. It is important for the plaintiff, and also the defendant, to verify which prescription period applies in their case.

A lawsuit against a municipality, particularly for material damages resulting from an accident, is a special case. Many municipalities only allow people a very short period (sometimes there is a time limit of 15 days) to advise the municipality or to file their lawsuit after which they may be prevented from doing so.

The prescription period stops running when you start a lawsuit before the Small Claims court. Therefore, if the plaintiff files her proceedings within the prescribed time limit, she does not lose her right to sue.

Aside from the question of prescription, when a plaintiff intends to take legal action, it is usually best for him to do so as soon as possible. Over time, there is a risk that evidence may be lost. Furthermore, as time progresses, witnesses start to forget facts and documents are more susceptible of being lost or destroyed.



Complete all documents properly

Forms from the Minister of Justice

When a person visits the court clerk to initiate legal proceedings, the clerk will give him a form called Action filed with the Small Claims Division. Once the plaintiff has paid the court fees, as well as completed and filed the application, the clerk sends a copy to the defendant (the person being sued). In addition to these documents, the defendant receives a form called Options available to defendant after notification of action.

It is very important to read and fill in these documents carefully regardless of whether you are a plaintiff or a defendant. These documents form the core of all future proceedings, so it is best to start out on the right foot! Documents that are clear, well written, and that consist of all the required elements will create a favorable impression with the party who receives them, as well as with the judge. Please see the example of an application section.

Like the demand letter, all legal proceedings are organized around three inseparable elements:


Identification of the parties: suing the right person

The parties are identified at the top right corner of the first page of the documents (application or contestation).

For the plaintiff, it is essential to properly identify the person or persons being sued. Wrongly identifying the defendant can have irreparable consequences for the claim because the plaintiff may not succeed in obtaining what is sought.

This aspect may appear simple when the defendant is a physical person (a human being) known by the plaintiff (for example, a neighbour). However, when the defendant is unknown or is a moral person (particularly a business, company, union, city, association, or non-profit organization) the question can become more difficult. Moral persons are, legally, full-fledged persons. For example, when a company is responsible for a debt, it is not the president or the sales person of the company who should be sued. Rather, the company, in most cases, should be sued directly.

In addition, certain persons (moral or physical) conduct business under a company name that is different from their own. It is not always easy to discover which person, physical or moral, is operating under the company name.

Suppose you buy something at the store, and at the front of the store there’s a sign with the name “Beautiful Things.” On your receipt the name “Old Junk” is printed. After some research you realize that the two names are used by two different companies identified by the numbers: 12567892 Canada Inc. and 2756 8039 Quebec Inc. Who do you sue? There is no clear answer to this question. The plaintiff must search to find out who is legally responsible for her claim. It is possible to start such research with the enterprise registrar (Registraire des enterprises). This is the provincial governmental body responsible for the enterprise register. All enterprises conducting business in Quebec must be registered there.

If you have trouble identifying the person responsible for the dispute, or if you find that all of the people concerned appear to be legally responsible, you might want to sue more than one person. For example, a couch is delivered to you in poor condition. The delivery company claims that the couch was already damaged when they picked it up at the store, while the store owner alleges that it was the delivery company who damaged the couch. You decide to sue both the delivery company and the company that sold you the couch.

Remember that under the law the clerk must, if need be, but by request, write your proceedings for you or help you to write them. In addition, it is possible to retain the services of a lawyer to prepare the documents for you.

Allegations and evidence: explaining your point of view

Grounds for suing or contesting a claim must be stated in the appropriate form in the space identified by:


It is in this space that you must explain your point of view by referring to the evidence. The best idea is to lay out your version of the story in a logical order or chronologically by dividing it up into numbered paragraphs. Essentially, what you are doing is explaining your story by way of assertions, which are called allegations. Respect the rule of one allegation per paragraph. When an allegation is supported by an exhibit, it is important to mention it in your allegations.

In the allegations, you must refer to the exhibits (material or documentary evidence, as well as written statements or expert reports) and not to the testimony of various people. It is actually not necessary to specify in the allegations that this person was a witness of this or that event, even if at the hearing, the witnesses are necessary to prove these points. On the other hand, if you want the clerk to summon these people to the hearing, you must write, in the space provided, their names and addresses.

Conclusions sought: specifying what you want from the court

In this section, identified on the application form by “Conclusions sought,” the plaintiff specifies what he is asking for from the defendant. Do not forget to ask for interest as well as costs. Be careful: the judge cannot grant the plaintiff more than he asks for in his application. If a plaintiff says he wants a sum of $2,000, he cannot, unless that judge allows him to, ask for $2,500 on the day of the hearing.

In addition to payment of the amount claimed, the plaintiff may, in certain cases, also ask:


Unless the defendant is making a cross demand against the plaintiff, he does not ask the court for anything except that the plaintiff not receive what he is asking for, i.e. the rejection of the plaintiff’s application. When preparing his evidence, the defendant should think about how to prove this.



Evidence: how and why to prove allegations

Inform the judge about the matter

In all legal proceedings, evidence is a vital element, much like gas is to a car. The purpose of evidence is to familiarize the judge with the important elements of the case, while convincing him that your point of view reflects reality.

The judge who is present on the day of the hearing does not know the details of the dispute before him. The story, aside from what he read in the proceedings, is new and unknown. It is therefore fundamental to present all of the elements that would allow the judge to understand your point of view. In addition, the judge can only base his decision on the evidence before him. It is therefore essential to provide him with evidence on each of the elements that supports your case.

What you must prove

The nature of the dispute will determine what elements need to be proven. For example, in a case where the plaintiff is asking for the repayment of a loan he made to the defendant, the plaintiff must at least prove the existence of that loan.

There are certain elements that the parties can explain to the judge themselves by testifying. The rules of evidence are rigorous, however, and in most cases the parties cannot provide evidence on all the elements of the case by their testimony alone. In reality, documents or additional witnesses are often necessary.

Photographs, contracts, notarized acts, bills and receipts that are referred to in the allegations must be mentioned in the “list of exhibits filed”. The documents themselves must be placed in the court file along with the duly filled forms. Documents that are not filed with the application or the contestation of the claim must be filed at least 15 days before the hearing date.

The burden of proof

The judge must evaluate the evidence before him using the rule of the “balance of probabilities” to make his decision after the hearing is over. This means that the judge must decide which person’s version of events seems more likely to have happened.

For example, the plaintiff that alleges that the defendant owes him a sum of money must provide evidence of this. If the evidence is insufficient or incomplete, his case can be rejected by the judge. It is even possible for a plaintiff’s claim to be rejected without the defendant having to present any evidence. This can occur when the plaintiff does not have sufficient evidence to convince the judge that his claim is well-founded.



The different types of evidence

There are many types of evidence such as material evidence, documentary evidence, proof by testimony, and opinion evidence.

Proof by testimony

Proof by testimony is a way to prove an allegation through the testimony of a person called a witness. For example:

“Claude’s dog bit me on the arm.”

Normally, when a person testifies in court, she can explain what she saw, did, or heard. She cannot give her perspective or opinion about the subject on which she is testifying.

The expression “witness” includes the plaintiff and the defendant when they are testifying. To prove an allegation by testimony (thus, the testimony of a witness), you only need to bring your witness to court on the day of the hearing. During the hearing, the witness will be called upon to explain to the judge what she knows about the matter.

However, when a person puts his version of the facts in writing, we say that he has made a written declaration or statement. This person is called a declarant. Where a case rests almost entirely on the testimony of one person, it is prudent to have that witness write a statement. The appropriate form (Statement in lieu of testimony) can be found at the court office. The statement must be signed and dated by the declarant. The party that had the witness make this statement can refer to it in his allegations and even add it to the court file.

In addition, if such a statement exists, the party has the choice to:


In the latter case, the court clerk will advise the other party that he can review the statement and obtain a copy of it. The other party is also allowed to ask the clerk to summon the person who made the statement to have her testify at the hearing.

It is possible that the witness did not write everything that she knew about the matter in her statement. If that is the case, one of the parties may be interested in having that witness testify on matters not covered in the statement. However, please note that if the judge decides that the witness has been brought to court unnecessarily and that her written statement was sufficient, the party that demanded that the witness be present may be condemned to pay costs.

If a party plans to file a witness’s statement rather than to have her testify, it is important to draw the witness’s attention to the importance of writing down in the statement all of the details that she remembers. Sometimes, witnesses are satisfied with writing only a few lines. The witness should understand that the quality of her statement can make her avoid having to testify in court.

Before a party chooses to file the statement, he should ensure that all the important elements of the case, and those that the declarant is personally aware of, are found in the statement. In fact, details that do not appear in the statement cannot be brought to the judge’s attention at the hearing. A party is not allowed to say things to the judge to complete a statement written by a witness.

Opinion evidence

For this type of evidence (either documentary evidence or proof by testimony), a person called an expert gives her opinion on a fact debated before the judge.

Contrary to ordinary testimony, an “expert witness” can give her opinion when testifying. In order to be permitted to give her opinion to the judge, the testimony must be related to an area of expertise. It is not necessary to resort to the services of an expert to prove, for example, that a car runs on gas. On the other hand, the opinion of an expert can become essential to explain the detailed functioning of a car’s transmission and to ascertain the condition of piece of machinery at a certain point in time.

In addition, the person must be an expert or specialized in the area of expertise in which he is testifying. Thus, a veterinarian cannot be an expert in automobile mechanics and vice-versa.

Material evidence

In contrast to proof by testimony, material evidence is an object. It can be useful to use an object as evidence in order to demonstrate, for example, the state of this object or to prove its existence and origin. Material evidence must be submitted by a witness.

Here are a few examples of material evidence:


Documentary evidence

Documentary evidence is a type of material evidence. It is used to prove an allegation by filing a document. The document can be a contract, a photograph, a report, a flyer, etc. For example, you can prove that you were billed for transport by ambulance by filing the ambulance bill.

Please note that a document must almost always be submitted into evidence by a witness. By way of exception, a notarized document may be submitted without the testimony of the notary who prepared it. The witness who submits a document must acknowledge the document, explain its origin, or even acknowledge the signature on it. How you bring a document into evidence depends on your purpose or intent in submitting this evidence.

For example, in the case of a person asking for the reimbursement of his ambulance costs as damages, the ambulance bill can be submitted either by the ambulance driver or the person who was billed for the service in order to prove the billing and thus the damage. A person who was not a party to the transaction, or who was not present during the transaction, cannot submit the bill to prove that the transaction took place because she wasn’t there during the transaction!

In certain cases, the importance of the document vis-à-vis the question being debated before the court can result in this rule being relaxed or, on the other hand, being strictly applied.

For example, take the case where the litigation pertains to injuries suffered during a fight and the question on which the parties cannot agree is: “Who started the fight?” No one is contesting the transportation to the hospital by ambulance or that the damage was caused by this incident. It would therefore not be necessary to make the accountant of the ambulance company, or the banker, testify in order to prove that the ambulance bill was paid. On the other hand, if the question being debated before the court was “whether the ambulance bill had been paid”, it may be necessary to have the accountant testify so that certain accounting documents could be filed.

In case of doubt, it would be a good idea to ask the witness to write a statement clarifying, for example, that as the accountant of such and such company, he knows that a bill bearing a certain number was paid by that person, etc. The party could then file this bill into the court file rather than unnecessarily making the witness come to court.



Example of an application

Identification of the parties
Fred Bitttenbydog
1267 Kennel St.
Montreal, Quebec
H2Z 3E4

Plaintiff

Versus

Claude Negligent
1234 Problem Street
Montreal, Quebec
H2Z 3E4

Defendant

The allegations

1. On September 2, 2008, during a fitness walk, a dog bit and injured my arm, as appears from the photos of my injuries filed, en liasse, as Exhibit P-1;
2. This dog is the property of my neighbour, Claude Negligent, as appears from the proof of registration of the dog with the municipal authorities, filed as Exhibit P-2.
3. I had to be taken to the hospital in an ambulance;
4. The ambulance cost me $ 100, as appears from the bill issued by the ambulance company, filed as Exhibit P-3;
5. Doctor Kneecap recommended that I take three days off work, as appears from the medical report, filed as Exhibit P-4;
6. As a result, I was absent from work for three days, as appears from my paystub for the week of May 12th, 2008, filed as Exhibit P-5;
7. Due to this absence from work, I lost X dollars of my salary… etc.

Conclusions sought

GRANT the present motion;

CONDEMN the defendant to pay the sum of X dollars with interest and the additional indemnity provided by article 1619 of the Civil Code of Québec*,as of the date on which the demand letter was received, as well as costs;

N.B.: *Article 1619 of the Civil Code of Québec allows you to claim supplementary interests. Ask the court clerk for more information about this.



Options available to the defendant: pay, settle or contest?

When being sued, the defendant is faced with four main choices: pay the amount claimed in full, try to come to an agreement with the other party (settle amicably), contest the claim, or even ask for mediation.

Pay the entire amount claimed

If the defendant chooses to pay the amount claimed in full, it is important that he contact the Small Claims clerk or the plaintiff to find out the real amount due. Costs and interests can be added to the amount or differ from those that are set out in the application. It is best to have these amounts calculated by the court clerk. Once the defendant has accepted to pay the claim, he cannot change his mind.

The plaintiff may ask for something other than a sum of money, such as the annulment of a contract. Do not forget to consider these requests.

Settle amicably

If the defendant decides to try and settle with the plaintiff, both parties will have to negotiate and draft a final agreement that will settle the case. In some complex situations, it may be advantageous to retain the services of a legal advisor for this part of the proceedings. Once an agreement is signed by both parties, it is submitted into the court file (this means that it is handed to the court clerk!).

Contest the application (including making a cross demand, if applicable)

Before making a decision to contest the application, the defendant must weigh the pros and cons of doing so. Just as the plaintiff did, the defendant must legally identify his point of view and check the existence and quality of the available evidence. To this effect, you can read the section in this toolbox entitled: The decision to sue or to contest.

It would also be useful for the defendant to refer, while making the necessary adjustments, to the other sections of this toolbox on this subject.

Once all the preparatory steps are completed and the form is filled out, the defendant hands it in to the court clerk along with a list of the exhibits and the exhibits themselves. The clerk advises the plaintiff of the defendant’s intentions and gives the plaintiff a copy of the contestation, to which he attaches a list of the exhibits filed by the defendant.

Request mediation

The application form, provided by the Ministère de la Justice, has a space in which the plaintiff must indicate whether or not he accepts to submit the dispute to mediation. If the plaintiff accepts meditation, the defendant who is contesting the application will also have to decide whether or not to accept to submit the dispute to mediation. Mediation is only possible if the application is contested and both parties agree to it.

Remember that choosing mediation does not stop the 20 day delay for filing a contestation from running out. The defendant still has to file a contestation or a judgment can be made in his absence after the 20 days have passed from the moment he received the application.



Preparing for the hearing

Know the file

The hearing needs a lot of preparation. Firstly, it is very important to obtain from the clerk a copy of all the documents that appear in the other party’s list of exhibits. Whether you are the plaintiff or the defendant, it is advantageous to know the other party’s file. With regards to your own file, organize it well and keep it in order. Have all your evidence with you; if need be, you can consult it during the hearing.

File the evidence in the court’s file before the hearing

Do not forget to file with the clerk, at least 15 days before the hearing, all the exhibits mentioned in your list of exhibits that were not already filed. If the 15 day deadline is not respected, the judge may forbid you from filing that evidence at the hearing. On the other hand, if the other party will not suffer any prejudice or if justice is better served by the filing of that evidence, the judge may still allow you to file it tardively.

Prepare your testimony

For your testimony, it is a good idea to write down what you intend to say to the judge, in the order that you intend to say it in, just in case you need your memory jogged. It is not recommended, however, to write a 20 page text and read it to the judge!

When you testify, go through the allegations made in your application and explain them in detail to the judge. The judge may let you tell the whole story or may ask you questions. Be prepared for both possibilities.

Witnesses

A few days before the hearing, communicate with your witnesses who have been summoned to court and remind them that they must be present. If one of the parties needs to have a particular witness officially summoned by the court, he must advise the clerk as soon as possible, by filling out the form entitled “List of Witnesses to be Summoned by the Clerk.” Remember that if the judge determines that a witness has been summoned unnecessarily, whoever asked that this witness be summoned will have to pay the costs. If a witness writes a statement or a report on the subject she must testify about, it is a good idea to give her a copy of it so that she can read it and refresh her memory.

An inability to be present for the hearing

If the day scheduled for the hearing does not suit you, it is possible to ask the court to hold it on another day. This is called applying for a postponement. You must apply in writing to the court clerk as soon as possible after receiving the notice of the hearing. This application will only be accepted for a serious reason (e.g. illness, absence from the country).

Attach to your application, the proof you have of the reasons for the absence (e.g. airline tickets, doctor’s note). If your application is accepted by the judge, a new hearing date will be communicated to the parties. If not, the hearing will take place on the original date.

Needing an interpreter

Some people- plaintiffs, defendants and witnesses- are not able to address the court in either of the two official languages (French and English). In that case, it is possible to use the services of an official interpreter for the hearing. The services of an interpreter are only provided at the judge's request. Otherwise, you must hire and pay an official interpreter yourself.

Ask the court clerk if you need more information about this issue.

You need particular equipment to present your evidence

Some people may have evidence that requires the use of equipment. For example, a party wants to prove an allegation by showing an excerpt of a video to the judge. In that case, you must contact the court clerk to see if he can make arrangements to have the necessary equipment available in the courtroom. If he cannot, you will have to bring in the equipment that you need on your own.

Voluminous evidence

In certain cases, voluminous evidence (a large quantity) may be necessary. For example, a party wants to prove a claim by filing the financial statements of a company which are 300 pages long. It is important to show the judge exactly which section of the document is useful to the litigation. The judge cannot read the entire document in order to find the ONE sentence that supports your case.



The hearing : the judge directs the debate

The hearing is the moment where the parties present their evidence to the judge. The judge looks at the exhibits that have been submitted. He also listens to the testimony of the parties and their witnesses, if there are any.

Before the hearing

Be on time for the hearing; if you are late, the hearing can take place without you. Allow yourself time to find the courtroom and to meet your witnesses. Make sure that they have reread their statements before testifying. Do not try to influence a witness. This could be revealed to the judge and diminish both the witness’s credibility and your own.

Panic and nervousness are your worst enemies. The best way to keep it together is to stay calm. Again, good preparation can help you overcome stress-related problems.

Dress plainly and neatly.

During the hearing

Once the hearing has started, the judge takes control. It is the judge who asks questions and gives the parties the chance to speak. Let the judge guide the process. If an important point has not been raised or explored by the judge, ask him politely for permission to address the court. You can address the judge by calling him “Mr. Justice”, or her, “Madam Justice”. During the entire hearing, keep calm and speak in a composed manner.

Listen closely to the judge’s questions and directly respond to them. If you do not understand a question, tell the judge.



After the hearing: executing the judgment

The execution is the procedural step in which the person who was condemned by the judge has to comply with the judgment. The person who is ordered or condemned to do something is generally the defendant, but it can also be the defendant by cross demand (i.e. the plaintiff) or even the person sued in warranty.

Unless the judge orders otherwise, the judgment can be executed 30 days after the date it was rendered. If the hearing took place in the absence of the defendant, this delay is 10 days. Like the right to sue itself, the execution of the judgment is subject to a prescription period. After a period of 10 years from the date of judgment, the plaintiff can no longer proceed with the various possible seizures against the debtor because his recourse will be prescribed.

At the execution stage, it is possible to retain the services of a lawyer, a bailiff or get help from the court clerk.

Compulsory execution

Even if some people pay immediately after the judgment, there should be no illusion: one must often take additional measures to receive payment from the debtor. This is what’s called compulsory execution of a judgment.

These procedures are aimed at identifying, seizing and, if necessary, selling the goods of the other party, which we call “the debtor”. The party that proceeds with the seizure is called “the creditor”.

Be aware of the debtor’s financial situation

To be able to execute the judgment, you must know if the debtor owns the goods you want to seize. This can require in-depth research because the information is generally confidential. Neither the bailiff nor the clerk can do this research instead of the creditor. Even if it is easy to say that the debtor drives a green car every morning, proving that he is the owner of that car can be much more complicated. It can be even more difficult for the creditor to discover, for example, the bank account numbers or the whereabouts and the amount of the debtor’s investments. It is essential to know what the debtor owns before undertaking execution procedures.

Questioning the debtor

The law permits the creditor to question the debtor in private on the subject of his financial situation. The debtor is summoned to the courthouse by way of a summons form available with the Small Claims clerk. At the time of the examination, the debtor can be questioned on his furniture, cars, savings or buildings he owns, amongst other things. This examination allows the creditor to also find out what the debtor’s sources of income are. For example, the creditor will try to find out the debtor’s bank account numbers. He can try to obtain a copy of the vehicle registration. The information obtained is essential so that the bailiff can afterwards conduct the seizures. In practice, however, these procedures are very rarely used for small claims.

Hiring a “private investigator “or a credit agency

It is also possible to retain the services of a private investigator who specializes in investigations of this type. With their connections and expertise, private investigators are able, for a fee, to trace a person and paint a reliable picture of his financial situation. The quality of the investigation generally depends on the quantity and quality of the information you provide to the investigator about the person against whom you want the seizure conducted. The investigator must at least know the name, address, and date of birth of the individual in order to start his research. A driver’s license number, a social insurance number, or even the person’s work address would allow the investigator to obtain the maximum amount of information about him. The information obtained by the investigator’s research allows the bailiff to effectively conduct the seizure.

Seizures

In order to proceed with a seizure, the creditor must obtain the necessary documents from the court clerk and either fill them out himself or with the clerk’s help. The creditor then usually consults a bailiff. The bailiff ensures that the debtor receives the execution documents advising him of the seizure. Under the law, the creditor can also send these documents to the debtor by registered mail.

However, only the bailiff can actually seize and sell the seized goods.

Get informed: the rules of execution are many and complex. The law does not allow you to take away all of the property of the debtor. Every person has the right to the minimum necessities to be able to live and work (like a bed, clothing, or tools). Remember that the debtor also has recourses if these rules are not followed.

To execute a judgment, the creditor must normally pay the costs. Among these costs are those related to the execution proceedings, the execution itself, and the fees of a lawyer, private investigator, and bailiff. Some of these costs can be taken directly from the money obtained from the sale of the seized objects. It is important to find out exactly what amounts are recoverable.

For more information, please consult the Infosheet entitled “Execution of the judgment” in the Small Claims Court section under “Step-by-step guide to procedure”.



Resources

This section contains a diverse array of resources that can help you be better prepared for an action in Small Claims court:

In Éducaloi’s “La loi vos droits”   (http://www.educaloi.qc.ca/en/loi/)section you will find plain language legal information on a variety of topics.

The website of the ministère de la Justice de Québec   (http://www.justice.gouv.qc.ca/english/accueil.asp)is an important source of legal information.

Small Claims court forms  (http://www.justice.gouv.qc.ca/english/formulaires/formulaires-a.htm) are partially available on line.

This link allows you to identify the different judicial districts in Quebec  (http://www.justice.gouv.qc.ca/english/recherche/district-a.asp).

A guide for citizens who plan to appear in Small Claims court  (http://www.justice.gouv.qc.ca/english/publications/generale/creance-a.htm), prepared by the ministère de la Justice de Québec.

On Publications du Québec   (http://www.publicationsduquebec.gouv.qc.ca/accueil.en.html)you will find the text of all the laws in Quebec.

The Code of Civil Procedure  (http://www.canlii.org/qc/laws/index.html) (For Small Claims court see articles 953 and following).

Civil Code of Québec  (http://www.canlii.org/qc/laws/index.html) (civil liability, contracts, prescription, etc).

Regulation respecting indemnities and allowances payable to witnesses summoned before courts of justice  (http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=%2F%2FC_25%2FC25R2_A.htm)

Tariff of legal costs applicable to the recovery of small claims  (http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/C_25/C25R9_02_A.HTM)

Registraire des enterprises du Québec  (http://www.req.gouv.qc.ca/default_eng.htm) (to trace a business)

The Young Bar Association of Montreal  (http://www.ajbm.qc.ca/services-public/act-public-pcreances-e.html) offers a service whereby parties appearing before the Court of Quebec, Small Claims Division can meet with a lawyer for a free legal consultation. The aim of the consultation is to help the parties prepare for the hearing.

Recent judgments of the Small Claims Division  (http://www.jugements.qc.ca/traductions/index.php) are available on line.

Option consommateurs   (http://www.option-consommateurs.org/communiques/communiques_2005/rc_easyhome_rgt_eng050512.html)is a not-for-profit association dedicated to the defence and promotion of the interests of consumers.