Who to sue and where to file

What this stage is

Before you fill out your claimClaimA request to the court for money or another remedy, saying why someone else owes it to you. The word also means the court document that starts a case.Close definition of Claim, you need to answer two questions:

1. Who exactly am I suing? The person or business that owes you, by their correct legal nameLegal nameThe official name of a person or business. For a person, it is the name on government ID. For a business, it may be different from the name on its sign or website.Close definition of Legal name.
2. Which court office do I file in? Rule 6 of the Rules of the Small Claims Court sets out where a case can be started.

These sound simple. But mistakes here are common, and they can cause real problems later, especially when you try to collect.

Who to sue

The person or business you sue is the defendantDefendantThe person or business being sued. The defendant responds to the claim by filing a Defence.Close definition of Defendant. Think about who made the deal with you, or who caused the loss.

Suing a person

Use their full legal name, as it would appear on government ID. Avoid nicknames. If you know they use another name, you can note it on the form as "also known as."

Suing a business

Businesses come in different forms, and the name you use depends on which kind it is.

• Sole proprietor. One person runs the business, sometimes under a trade name. You may need to name the owner as well as the business name. Ontario's court guide says to name the owner "carrying on business as" the business name, and to list the business name as a separate defendant on Form 1A. The Rules also let you sue a sole proprietor in the business name (Rule 5.06).
• Partnership. Two or more people run it together. You may need to name the partnership and the partners.
• Corporation. The business is its own legal "person." Its legal name may be a word name ending in "Inc." or "Ltd.", or a number such as "1234567 Ontario Inc."

The name on a sign, a website or a receipt is often an operating name, not the legal name. You can usually look up a business's legal name in a government business registry search. In Ontario this is the Ontario Business Registry. A basic search is free, and some search products have a fee. Invoices, contracts and cheques may also show it.

Suing more than one defendant

You can sue more than one person or business in the same claim. For example, a company and the person who personally promised to pay. If there is more than one plaintiffPlaintiffThe person or business that starts a court case by filing a claim. The plaintiff asks the court to order the defendant to pay.Close definition of Plaintiff or defendant, you add them on Form 1A: Additional Parties.

Special situations

• A child or a person who cannot manage their own affairs. A child, or a person who is not mentally capable, usually needs a litigation guardianLitigation guardianAn adult who acts for a child or for a person who cannot manage their own case in court. They make decisions in the case for that person. In Small Claims Court, the litigation guardian files a consent on Form 4A (Rules 4.01 and 4.02).Close definition of Litigation guardian. The litigation guardian files a consent on Form 4A. One exception: a minor may sue for $500 or less as if they were an adult (Rule 4.01). This is complex, so legal advice can help.
• The person has died. The claim may need to be against their estate.
• A government body. Special notice rules may apply.

Where to file

Rule 6 decides which Small Claims Court location your case belongs in. Generally, the choices are tied to where the events happened and where the defendant lives or carries on business. Under Rule 6.01(1), you start the case in the territorial division where the cause of action arose, or where the defendant (or any one of several defendants) lives or carries on business, or at the court's place of sitting nearest to where a defendant lives or carries on business.

To decide, write down:

• where the problem happened (for example, where the work was done or the deal was made)
• where each defendant lives or runs their business

Then find the court office that serves that area. Our court pages list locations across Ontario, such as Toronto, Ottawa, Brampton, Hamilton and London. Call ahead to confirm the office handles your area.

If you file in the wrong place, the defendant may ask to move the case. This can add delay. The court can order the trial moved to another place if the balance of convenience substantially favours it. If a judge finds the case was started in the wrong place, the court can order it tried anywhere it could properly have been started (Rule 6.01(2), (3)).

The deadlines at this stage

No court deadline applies yet. Your limitation periodLimitation periodThe time limit to start a court case. In Ontario it is generally 2 years from when you discovered your claim, under the Limitations Act, 2002. If you miss it, you may lose the right to sue.Close definition of Limitation period is still running: generally 2 years from when you discovered (a claim)Discovered (a claim)The earlier of two days. One is the day you first knew you had a loss, that something the other side did or did not do caused it, that the other side is the person you want to sue, and that a court case was a fitting way to fix it. The other is the day a reasonable person in your position should have known those things. Your 2-year limitation period runs from that day (Limitations Act, 2002, section 5).Close definition of Discovered (a claim) the claim (Limitations Act, 2002). Do not let research into names and locations eat up the time you have left.

Forms

• Form 7A: Plaintiff's Claim: where you name the parties and the court location
• Form 1A: Additional Parties: for each extra plaintiff or defendant

Common mistakes

• Using the trade name instead of the legal name. A judgmentJudgmentThe court's final decision in a case, saying who wins and what must be paid or done. A judgment can come after a trial, by default, or by agreement.Close definition of Judgment against the wrong name can be very hard to collect.
• Suing the employee instead of the company. Think about who you actually made the deal with.
• Leaving out someone who is responsible. If two parties share the blame, consider naming both.
• Filing in the court closest to you, not the right one. Your home address does not always decide the location.
• Guessing at spelling. Copy names exactly from a document, letter for letter.

Not sure your dispute fits at all? Try the Can I use Small Claims Court? checker.

What happens next

With the right names and the right court, you are ready to write your claim. Go on to Starting a claim (Form 7A).

Need to go back? See Limitation periods.