Once you have made the decision to take someone to court, one of the first decisions to be made is whether it will be in Small Claims Court or in Supreme Court. Sometimes the decision is easy: Small Claims Court limits the money you can be awarded to $25,000, so if someone owes you or you stand to be awarded significantly more than that, you will probably want to opt for Supreme Court. If your potential “winnings” are closer to $25,000, however, you will want to consider other factors in making your decision.
Small Claims Court is designed to be a user-friendly court, where an individual can represent themselves without the aid of a lawyer. The Rules of Court and procedures are simpler than the Supreme Court Rules, which makes it easier to navigate. Additionally, the whole process is faster than in Supreme Court, with trials generally being scheduled sooner and being shorter than in Supreme Court. The ability to represent one’s self is obviously one way of keeping the costs of litigation down; additionally, the cost of filing a lawsuit in Small Claims Court is less expensive than in Supreme Court.
The lower costs and speedier process is why people often choose Small Claims Court even if their claim is worth slightly more than $25,000. In such cases you may opt to abandon the excess and limit your claim to $25,000 so that it may be heard by the Small Claims Court. (It is important to note however that if you do this you cannot sue for the difference later.)
Despite the fact that Small Claims Court is set up for non-lawyers, many people do hire lawyers to represent them. It is still an adversarial process after all, with potentially 1000s of dollars at stake, and even though the rules are user-friendly they still require strict compliance and knowledge of the law is an advantage. For example, you must decide what you are suing someone for (i.e. breach of contract, unjust enrichment, etc.); or are you suing the company or the owner of the company that wronged you (or both)? These are not always easy decisions for a non-lawyer to make. Often individuals start Small Claims Court cases on their own and then quickly find that it is too difficult or troublesome to navigate on their own and they end up hiring a lawyer.
Fortunately, even if you need to hire a lawyer to represent you in Small Claims Court, because of the simplified process and time lines, the legal costs are generally less than they would be in Supreme Court.
That said, one disadvantage of Small Claims Court is that you cannot recover any legal fees that you pay to a lawyer to represent you. You may recover the filing fees (usually about a couple hundred dollars), but not the legal fees. In Supreme Court, your legal fees will be higher, but if you are the winner, you will usually get some portion of them awarded to you from the other party.
Also important to consider is that there are some types of cases that Small Claims Court will not hear. The Small Claims Act limits the cases that Small Claims Court will hear to: “debt or damages, recovery of personal property, specific performance of an agreement relating to personal property or services, or relief from opposing claims to personal property”. The Act specifically bars any claims for libel, slander, or malicious prosecution. Additionally, Small Claims Court does not have jurisdiction over matters including but not limited to those relating to land, estates, landlord/tenant disputes, bankruptcy, trademarks, and claims against the Federal Government.
Ultimately, unless your claim is worth vastly more than $25,000 or is barred by jurisdiction, whether or not to sue in Small Claims Court or Supreme Court will depend on what role you want to play in the litigation and on an analysis of how much your claim is worth versus how much it will cost you to pursue it in Court. Generally, if it is worth pursuing in Court, it is worth doing right, which probably means consulting with a lawyer, or spending a lot of time hitting the books at the law library.
Regardless of whether you choose Small Claims Court or Supreme Court, limitation periods will apply, so you should make the decision without too much delay.