Both the small claims court and the civil court systems in Canada are alternatives to the criminal justice system. This means that if someone is found guilty or liable for the matters that they are accused of (e.g. breaching a contract), the consequences are something other than going to jail or getting a criminal record. Usually, the consequence for the defendant (the person being accused of failing to do something or doing harm) are financial. There are lot more steps to the civil court process (than small claims court) including alternative dispute resolution options (e.g., negotiation, mediation, arbitration) in cases where things can be resolved before going to a full blown court process.

At the end of January 2020, I attended small claims court. I was the claimant. I submitted a claim for things that the man who sexually assaulted took from me that do not fall under Canada’s criminal code. The process of filing in small claims court was confusing to say the least and I spent time deciding whether I should file in civil or small claims court. Attending a free, walk-in clinic did really help. Even though I saw a different lawyer every time and they could not give me specific advice, I could get some of my questions answered about the process that helped me make my decision. Below are some of the things that I learned about the process that helped me decide.

The Main Reasons I Chose Small Claims Over Civil Court Processes

First, I will start by saying that this post is not intended to provide exhaustive coverage of these court systems. I am not qualified to provide such coverage and even after the leg work that I put in, I do not feel comfortable doing so. I will talk about some key things that, as someone who was filing against the man who sexually assaulted me, helped me make my decision about what stream to pick. I hope this helps you avoid the ‘wish I had known that’ syndrome.

“Discovery”: As I said, there are a lot more steps to filing a claim in civil court. Without listing all of the steps, there were a few that made me not want to engage in the civil court process. First was ‘the discovery’. The process of discovery happens before court and would have required me to share all of my compiled evidence and documents with him before the trial and would have required for me to meet with him in-person to ask further questions about the evidence (or counter-evidence) that he would have had the right to provide. This is something that I felt I wanted a lawyer for. I also felt that the 4 free hours of legal advice for victims of sexual assault was not sufficient for me to feel prepared. These 4 hours do not include representation – it is akin to coaching and guidance. And so, even though a judge would be present and a court clerk and the process would be recorded and transcribed, I did not want to be forced to be in a room with him and interact directly with him. That is, directly addressing him and having to answer his questions.

Self-representation: Due to the complexity, I did not feel as though I could self-represent in civil court. There were a lot of steps and alternative routes of dispute resolution each with different reasons, pros, cons of taking that made me feel as though I was being crushed under a weight of despair. I did not feel confident self-representing and did not have the financial resources to pay a lawyer.

Actually getting my money: Whether I filed in small claims or civil court, even if I won, it is still my responsibility to collect the money. The court does not force him or chase after him to pay. Of course there are other steps that I can take to try to ‘collect’ but I am still the one who has to take these steps and there is a cost to filing the forms, putting further financial and time burdens on me. Since my primary motivation for filing a claim was to have a legal record that he in fact fucked me over, not to get oodles of money, I did not see the point in taking on the civil court processes, a more onerous and energy sucking system than the small claims court. Both result in public records of the decision.

Timelines One: There is a time limit for filing in small claims or civil court. Because these are provincial systems, the timelines will vary by province and territory and will also vary by type of crime. For example, there is no longer a time limit to file a claim for sexual assault in either of these systems in some provinces and territories. There is a timeline to file for say unpaid rent or breach of a contract. And so, I had to make a decision. Did I want to file before the time limit or forget about it forever and let him get away with everything without even having a small chance of holding him accountable. I chose to try to hold him accountable and filed knowing that because, in my jurisdiction, there is no timeline to file for sexual assault, depending on the outcome of the criminal case (currently ongoing), I could file a second time to hold him accountable for sexually assaulting me. But can make that decision at a later date and do not have to think about that now.

Timelines Two: I had some degree of control in scheduling with small claims court. After I filed, I went to the office and chose a day for my matter to be heard. I suggest giving yourself enough time to (a) serve the defendant with the claim and (b) put all of your evidence together. Just a note, anytime you are bringing evidence to the hearing, make sure you have three copies. One for you, one for the judge or adjudicator and one for the defendant. Those are the rules as part of a fair and transparent process. I gave myself 2 months.

Formality: Small claims court is less formal than other processes. There is never jury and there is an adjudicator instead of a judge. An adjudicator is a lawyer with extensive experience who has been appointed. They are knowledgeable about the process, they moderate the process in the court and are responsible for making a final decision about the matter.

Things to Keep in Mind …

Small Claims and Civil Court Processes are Public: The statement of claim (a brief summary of facts that the claimant, I relied on for the rest of the process) along with the final decision are public (see here for an example of public postings of court decisions in Nova Scotia and in Ontario via CanLII). The fact that my identity is not protected in these civil processes like they are in the criminal court as a victim-witness factored into me deciding not to include detailed information about my sexual assaults. Going to criminal court is traumatizing and complicated enough without having to go through a second court process to publicly testify (anyone off the streets can come in and watch a civil court process, they are open to the public) about being sexually assaulted.

Just a note … because these processes are public, it may not be a bad idea to go and sit in a court process a few weeks before your own hearing. Just call your local court house and ask about finding the schedule or attending. It is your right. They are open processes and attending one can give you an idea of what the court room looks like and what to expect. I did not do this and wish I had. I had never self-represented myself and could have done without the added anxiety of not knowing how much I needed to talk or what or how to present my case or what my other responsibilities were …. Seeing him for the first time since I fled the situation of domestic violence was more than enough to take my feet out from under me. If I were to go back, I would have gone for a trial run to get a layout of the land in advance.

Concurrent Injuries Compensation Board (CICB): After he was arrested and charged for sexually assaulting me, I filed with the CICB (in Ontario, now called the Victim Quick Response Program). The CICB’s mandate was to provide compensation to victims of crime. The deadline for me filing with small claims or civil court was coming and more than a year after filing with CICB, my claim with them was still being processed. As a result, I had no idea if I was going to get any compensation from the CICB for the damages resulting from the sexual assault. If I was awarded money from small claims or civil court for damages related to the sexual assault, I would have to repay CICB. Therefore, I filed in small claims for things that do not fall under the criminal code and as such, are not considered to be harms done as a result of the violent crime of sexual assault. If I win anything from small claims, I will not have to pay CICB back because they are for separate things. So if you have filed for something similar, think about the potential overlap.

Free Legal Aid: Depending on where you live, there might be free resources such as legal aid or walk-in clinics or legal advice for victims of sexual assault. Just remember that these resources are often understaffed, under resourced and overworked. Not all of them will actually represent you and most provide coaching or general information (not specific advisement on your own case). This means that it is up to the individual person to come equipped with questions to ask and be able to apply (complicated) information to their own situation. Be brave and courageous. It is hard and you will struggle. This struggle is not an indication of your failure but a failure of the system. Just quickly, here are some links to a few websites for different provinces/territories that explain the court process (Nova Scotia, Ontario, Northwest Territories) and list some community resources (Nova Scotia, Ontario)

Witnesses: If there is someone who witnessed what you are making a claim for and are willing and able to come to court to give a statement (e.g., I saw him hit her or they told me different stories of abuse such as X, Y, Z), it might be helpful to have them there. Both for moral support and also as a second human to support your case.

Amendments and Putting Evidence Together: When I was putting together my statement of claim, I did a preliminary (first round) scan of all of the documents that I thought I had. I did this in order to get an idea of the types of things to include in my claim (rent, money he borrowed and promised to pay back for school fees) and an approximate amount. When I went through all of this material the second time to put my evidence together, I came across a number of receipts that I had missed and the total amount of my claim increased (but I had already filed and served him with the official statement). Because the amounts had changed but not what I was claiming for, the adjudicator allowed these changes. However, I have no idea if this is standard practice to allow changes to statements of claim when it is only the amount that changes, not the actual type of thing being claimed. As such, I would recommend doing the full review of evidence prior to filing a claim in the first place or checking with your local court to ask the following question: “if when I am putting my evidence together, I find additional things that I want to claim, can I add them to my claim even after I have served the defendant?”

So Now What?

Now I wait. It can take up to 60 days for the official decision of the adjudicator to be lodged with the court. Once I get that decision, I will have a number of options available to me such as: filing an appeal (if I disagree), taking action to collect my money or maybe others that I do not know about yet. When my decision is publicly posted, I will link it to this blog post so that future readers have an example with some context of how to put some of this shit together.

Before I go, I want to be clear that this process was not simple or straightforward. Putting together all of my evidence was labour intensive requiring me to comb through months of bank statements, emails, receipts and putting them together in a coherent fashion so that I could build my own case. I had to have access to a computer and a printer to do what I did and ran out of both at one point. Money for a binder, dividers and post-its to organize my evidence was also required. I also paid travel fees for a witness I had. It took me approximately 35 hours to put this together. This time does not include the time it took me to find a legal clinic, the hours spent there, the time it took me to find and arrange for someone to serve him with the papers and the 25 hours it took me to draft my statement of claim that I filed with the court and served him with.

While I decided to take the route of filing, it was a lot of work. Cognitively and emotionally. Having to see him impacted me more than I thought it would. I was expecting to be emotional and have anxiety but the out-of-body sensations, the sweats, the trembling, the ‘zoning out’ where I had to ask for things to be repeated a number of times because it was hard for me to process things in the state I was in and the 10 days or so that I needed for my nervous system to recover after the hearing was not expected (which is why I have not been able to write a post for a while). Taking these steps is a personal decision and is not up to anyone but you. Not only did I endure the most impact and physiological toll from this process but I also put in the most work. No one else put that evidence together for me.

Until next time…