TRIAL

[Rule 17]

Before you begin the trial you will need to get everything together in order to effectively present your case.

You will need:

  • Your theory of the case
  • All the evidence you intend to rely upon
  • Summonses for any and all witnesses you intend to use
  • Three copies of your claim
  • A list of all witnesses
  • Any and All documented evidence you intend to rely on including any case law and legislation

Preparing for Trial

Theory of the case:

What is your version of the events and what stance is it you wish to take according to the law? Be sure to link your theory to the facts of the case and what you can prove.

Adjournments: You may request an adjournment should you have a valid reason, however, you should give notice to the court and the other party as soon as you know you will need an adjournment. Also the adjournment for trial are “on such terms are just” meaning some costs may be levied against you.

Rules of evidence and the small claims court:

All evidence in the small claims court is subject to judicial discretion and the laws of evidence. This means that although the rules are more flexible in allowing hearsay evidence, it does not mean you can enter all hearsay evidence. The judge will have the final say as to what will be admitted. Therefore, it is encouraged that as much evidence as possible that you wish to enter is in accordance with the rules of evidence.

Any evidence you wish to use in court must be served to the other party at least 30 days before the trial date.

Once the parties have been served at least 30 days in advance, you must submit the proposed list of evidence to the court with the name(s) and address(es) of the witness or author of whom you are relying.

In addition, if you are relying on an expert you must include their qualifications as well.

Should you wish a witness be present for trial, it is highly recommended that you serve the party with a summons. The summons is Form 18A and must be served in accordance with Rule 8.01(7). Rule 8.01(7): “…shall be served personally by the party who requires the presence of the witness… at least 10 days before the trial date…”

Test for Hearsay is:

  • Is the statement not your own?
  • Is the statement being repeated in court
  • Is the statement being submitted for the truth of the statement

The most common exception to hearsay is if the comment is being entered not for the truth of the statement but for the state of mind of the person at the time. Although, this may only go to the mens rea of the offence and may not even be relevant in a small claims court context except in the case of a tort such as battery.

You should not speak to anyone who has a legal representative without first consulting the legal representative for permission to speak to their client.

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