Small Claims Court (Ontario) Law
(01 October 2011)
Chapter 18 - Court Fees
- Court Filing Fees
- Sheriff Fees
- Bailiffs Fees
- Summons and Witness Fees
- Fee Waivers
A significant component of the decision of whether to sue is the expense. The expenses of conducting a court proceeding are not limited to the possibility of paying a lawyer or agent and of negative cost awards, but includes the (now substantial) fees charged by Ontario courts for filing and issuance of documentation at the various stages of the litigation. The Small Claims court is no exception.
While judgment for a successful party will typically include an order that the expended court fees be refunded by the unsuccessful party (see Ch.14: "Trial: disbursements"), such an order must still be collected - which is not always possible.
The fees don't end with the court clerk either. There are fees and expenses associated with summonsing witnesses, and quite significant fees associated with the various enforcement procedures that may be required to be paid to the sheriff and bailiffs.
While most litigants must continue to bear these costs themselves, the situation has changed for poor people. Following the court case of Polewsky v Home Hardware Stores Ltd. (Divisional Court, 2003), Ontario created a "fee waiver" program to address this problem for poor people. Now "certificates" which waive court fees are available on application if the party meets the financial criteria or otherwise demonstrate their financial need.
2. Court Filing Fees
As per the below list, there are "over the counter" fees at the court for issuing and filing documents of various types. Inquire of the clerk for the proper name of the local court for cheque payment [Reg 432/93].
IN GENERAL PROCEEDINGS
Claim (by Frequent Claimant, see below *) 145.00
Defendant's Claim 75.00
Notice of Motion
(except Notice of Motion under Wages Act) 40.00
Summons (Issuing) 19.00
Receiving for enforcement a process
from the Ontario Court (Provincial
Division) or an order or judgment
as provided by statute 25.00
Certificate of Judgment (Issuing) 19.00
Writ of delivery (Issuing) 35.00
Writ of seizure and sale (Issuing) 35.00
Notice of examination (Issuance) 35.00
Notice of Garnishment (Issuance) 100.00
Consolidation Order (Preparing and filing) 75.00
Sending Court File to
Divisional Court for Appeal 20.00
Certified copy of a judgment or other
document, per page (Issuance) 3.50
Transmitting a document other than by mail
Cost of transmission
Inspection of a court file:
i. by a solicitor or party in
the proceeding: NO CHARGE
ii. by a person who has entered into an
agreement with the Attorney General
for the bulk inspection of court files,
per file: 1.00
iii. by any other person, per file: 10.00
Photocopies (per page) 1.00
Fixing Trial or Damages Assessment
Hearing Date 100.00
Fixing Trial or Damages Assessment
(by Frequent Claimant, see below) 130.00
Default Judgment 50.00
(by Frequent Claimant, see below) 35.00
IN REPAIR AND STORAGE LIEN APPLICATIONS
Notice of Objection 35.00
Waiver of further claim and a receipt: No Charge
Initial Certificate (Issuing) 35.00
Final Certificate (Issuing) 35.00
Writ of Seizure (Issuing) 35.00
* Frequent Claimants: A plaintiff (not their counsel or agent) who has filed 10 or more claims in the same court office in any given calendar year is re-categorized as a "frequent claimant" and is charged more for filing Claims, fixing Trial dates and default judgments than other plaintiffs [Reg 432/93, s.1(3)].
3. Sheriff Fees
These are fees payable to the Sheriff of your local municipality for various enforcement and service activities. They are set out in this regulation made under the Administration of Justice Ace: Reg 294/92: Sheriff's Fees.
4. Bailiffs Fees
Court bailiffs assist with collection efforts. Fees are charged as set out in Schedule 2 (Bailiff's Fees) of this regulation made under the Administration of Justice Act Reg 432/93: Small Claims Court - Fees and Allowances.
5. Summons and Witness Fees
These are fees paid in relation to the issuance of a Summons to Witness and payment of witness and travel fees to the witness [Reg 432/93].
Summons to Witness (Issuing) 19.00
For attendance in court
(By a barrister, solicitor, physician,
surgeon, engineer or veterinary
surgeon who is not a party to
the action, to give evidence of
a professional service rendered or to
give a professional opinion) 15.00 per day
For attendance in court
(Other witnesses) 6.00 per day
For travel to court Reasonable travelling
expenses actually incurred,
but not greater than 30
cents/km in southern Ontario
or 30.5 cents/km in Northern
Ontario [Reg 11/90]
* For the purposes of these rates, "Northern Ontario"
is comprised of:
(a) all of The District Municipality of Muskoka;
(b) everything lying north of the line consisting
of Healey Lake (Municipal) Road from Healey
Lake easterly to its junction with Highway 612;
(c) everything lying north of the line consisting
of Highway 60 easterly to its junction with
Highway 62 at Killaloe Station and Highway 62
6. Fee Waivers
The Ministry of the Attorney-General, acting under authority set out in the Administration of Justice Act, has set up a fee waiver program [AJA s.4.1]:
... so that individuals who might otherwise be denied access to justice because of their financial circumstances can be excused from paying fees.The program operates by means of certificates which exempt a person from the payment of court fees from the date of the issuance of the certificate, and with respect to the proceeding/s set out in the certificate [AJA s.4.2]. Applications for fee waivers are themselves free of charge [AJA s.4.9].
Fee Waiver Forms
Of course, issuance of a certificate is subject to a financial "means test". The means test used in each type of request is explained below. If you are turned down initially on the means test, you can apply again if your financial circumstances change.
The certificates cover most fees payable to the court but not all. The ones not covered are set out in section 6(b) below.
There are several routes to obtaining a fee waiver certificate, varying by what sort of proceeding it is required for and from whom it is requested. While there is no formal appeal scheme as such, the intention of the scheme is that initial applications are made at the clerical stage (ie. clerk, registrar, sheriff, bailiff) - and that a further request should only be made to a judge if the first has been denied.
The procedures for making the request are self-contained and as explained in this chapter. They are not further governed by the Rules of the Small Claims court, and neither are they governed by the Statutory Powers Procedures Act (Ontario) (this is a general procedural statute designed to apply to a wide range of administrative tribunals).
(b) Where Fee Waiver Inapplicable [Reg 2/05, s.3,4]
Fee waivers do not cover the following expenses:
(c) Court Fee Waiver from Court Clerk or Registrar
- Sheriff's disbursements and travel expenses relating to enforcement of writs or complying with any other orders [under Reg 294/92, s.1(2),2] - EXCEPT with respect to orders of the Rental Housing Tribunal declaring an illegal lockout by a landlord and granting re-entry to the residential tenant [Tenant Protection Act, s.35(3)]
- Bailiff's disbursements re enforcing a writ [under Reg 432/93, Sched 2, item 5].
- Witness fees and travel allowances [under Reg 432/93, Sched 3]
- where the legal fees of the applicant for the fee waiver are covered by legal aid;
- where the applicant for the fee waiver is a representative party under a class action, and the disbursements are payable on success of the proceeding only OR the
disbursements are paid by their lawyer under a contingency agreement
A request for fee waiver regarding a court case may be made by giving a completed application form to the clerk or registrar of the court in which the proceeding is being, or will be, conducted [AJA s.4.3(1)].
The request may be made at any stage of the proceeding [AJA s.4.3(2)]. A request may even be made after an order has been issued by the court, to waive fees relating to the enforcement of the order [AJA s.4.3(3)].
If the conditions of eligibility are met [see sub-section (h) below, "Means Test"], the clerk or registrar will issue a certificate [AJA s.4.3(4)]. Such issuance is not subject to appeal [AJA s.4.3(5)].
(d) Court Fee Waiver by Judge
A request for fee waiver regarding a court case may also be made by giving a completed application form to the judge of the court in which the proceeding is being, or will be, conducted [AJA s.4.4(1)]. (A request to a judge is submitted through the Registrar or clerk's office, not directly to the judge [Reg 2/05, s.5].)
The request may be made at any stage of the proceeding [AJA s.4.4(2)]. After an order has been issued by the court, a request may be made by someone who has not yet received a fee waiver to waive fees relating to the enforcement of the order [AJA s.4.4(3)].
The clerk or registrar of the court will consider the request first. If the conditions of eligibility are met, the clerk or registrar will issue a certificate [AJA s.4.4(4)].
If the clerk or registrar is of the opinion that the conditions of eligibility are not met they shall give the request to the judge for consideration. The judge, deputy judge or case management master shall order the issuance of a certificate [AJA s.4.4(5)(7)], effective the date of the order [AJA s.4.4(6)] if:
Unlike a decision by the court clerk or registrar, the decision of the judge is NOT made under the Means Test set out in sub-section (h) below.
- (i) The person lacks the financial means to pay fees relating to the proceeding or to the enforcement of an order made in the proceeding, as the case may be; AND
- (ii) Commencing, defending, continuing or intervening in the proceeding, as the case may be, is not frivolous, vexatious or otherwise an abuse of the process of the court.
In the case of a person seeking a fee waiver after an order has been issued - in order to waive fees in relation to the enforcement of the order - condition (ii)above need not be considered.
An order granting or refusing the issuance of a fee waiver is not appealable [AJA s.4.4(9)].
(e) Court and Tribunal Order Enforcement Fee Waiver by Sheriff or Bailiff (s.4.5)
A request for fee waiver regarding the enforcement of a court or tribunal order may be made by giving a completed application form to the sheriff or bailiff [money orders from a tribunal can usually be enforced by filing them in court: see Ch.16, s,7(i)] [AJA s.4.5(1)].
If the conditions of eligibility are met [see sub-section (g) below, "Means Test"], the sheriff or bailiff shall issue a certificate waiving all enforcement fees payable on or after the date of issuance [AJA s.4.5(2)]. Issuance decisions are not subject to appeal [AJA s.4.5(3)].
(f) Tribunal Order Enforcement Fee Waiver by Judge or Deputy Judge of Small Claims Court (s.4.7)
If the tribunal order is within the monetary jurisdiction of the Small Claims Court ($25,000), a request for fee waiver regarding the sheriff's enforcement of a tribunal order may also be made by giving a completed application form to a judge or deputy-judge of the Small Claims Court [AJA s.4.7(1)] (practically it is given in at the court office: [Reg 2/05, s.6]).
If the tribunal order is for more than the Small Claims Court jurisdiction then the request must be made to a judge or case management master of the Superior Court. (practically it is submitted through the Registrar's office, not directly to the judge [Reg 2/05, s.5].)
The clerk or registrar of the court will consider the request first. If the conditions of eligibility [see sub-section (h) below, "Means Test"] are met, the clerk or registrar shall issue a certificate [AJA s.4.7(2)].
If the clerk or registrar is of the opinion that the conditions of eligibility are not met they shall give the request to the judge for consideration. The judge shall order the issuance of a certificate effective the date of the order [AJA s.4.7(4)] if they are "of the opinion that the person lacks the financial means to pay fees relating to the enforcement of the tribunal order." [AJA s.4.7(3)]. Unlike the decision of the sheriff, the decision of the judge is NOT made under the Means Test set out in sub-section (h) below.
An order granting or refusing the issuance of a fee waiver is not appealable [AJA s.4.7(5)].
(g) Means Test
This section outlines the means tests that are used for fee waiver eligibility whenever the decision-maker is NOT a judge of the court. It is used where the decision-maker is a court clerk, registrar, sheriff or bailiff [Reg 2/05, s.2].
An applicant for fee waiver only has to meet one of either the "Public Benefits Eligibility" or the "Financial Criteria Eligibility" tests below.
A. PUBLIC BENEFITS ELIGIBILITY
A person meets the Means Test if the primary source of household income is from any combination of the following programs:
- welfare (Ontario Works),
- ODSP (Ontario Disability Support Program),
- any pension, together with Old Age Security Guaranteed Income Supplement),
- Canada Pension Plan Pension (old age, disability, or otherwise),
- War Veterans Allowance.
B. FINANCIAL CRITERIA ELIGIBILITY
A person meets the Means Test if their finances meet ALL of the following financial limits (definitions below):
- Gross Monthly Household Income
The applicant's gross monthly household income is less than the following amount:
Number of persons Gross monthly
in household household income
1 ........................ $1,500
2 ........................ 2,250
3 ........................ 2,583
4 ........................ 3,083
5 or more ................ 3,583
"Gross monthly household income" is the regular gross income of all members of the household in a month.
- Household Liquid Assets
The value of the person's "household liquid assets" is less than $1,500,
"Household liquid assets" means all assets owned by the members of the person's household that are money or can readily be converted into money.
- Household Net Worth
The person's "household net worth" is less than $6,000.
"Household net worth", means the value of all assets minus the value of all debts and other financial liabilities, of the members of the person's household.
A "household" is an applicant, their spouse and their dependent children.
A "spouse" is a partner in marriage, a conjugal partner of three or more years continuously or "in a relationship of some permanence" if they are parents together. Spouses separated by reason of relationship breakdown are not included as part of the household for purposes of this means testing.
A "dependent child" includes a minor (under 18), a person over 18 enrolled in a full-time program of education, or a person 16 years or older still under parental control - whom the applicant has demonstrated a "settled intention to treat as a child of his or her family" (except a foster child for whom payment is received).