Preparing for a Small Claims Trial

Evidence is presented in a variety of ways during a trial. It may be through exhibiting a document, such as a photograph or an invoice. It may also be through the oral testimony of yourself or another witness. It is usually necessary for a witness to testify about an exhibit to explain what it is and how it came about. Witnesses should have first-hand knowledge of what they are testifying about. For example, a witness may be necessary to say when a photo was taken and what the photo shows.

Review any documents that were filed with the court, including the claim and reply. Your evidence and argument should relate to the claim and reply for the matter. It is very important to ensure that your evidence and argument is organized before trial. Make sure you have a plan as to how you will present your evidence and how it will fit into your argument. Bring extra copies of any documents you plan to make as exhibits. Create a list of the exhibits in the order you plan to present them. Note which witnesses will testify about which exhibits.

Make sure that you will be available and notify all of your witnesses of the trial date. Call the court for advice, immediately, if you discover that:

• you or a witness will not be available on the trial date
• you overlooked a document that you intend to rely upon at trial and it has not been filed with the court or served on the other party

It is a good practice to meet with your witnesses to go over their testimony before the trial. Do not tell the witnesses what they should say, however. They must answer the questions you ask them at trial truthfully and in their own words. Try to anticipate questions that the other party or judge may have for your witnesses. You may refer to notes you make at trial, but you may not read from them during your own testimony.

It is the responsibility of the parties to notify their witnesses of the date, time and place of the trial. If a witness does not want to appear voluntarily, a subpoena may be issued. A subpoena is an order issued by the court stating that the witness must appear in court on the trial date. There is a $10 charge for issuing a subpoena. Disobeying a subpoena is against the law.

It Is also the responsibility of the parties to serve the subpoena on their witnesses. Parties must also offer to pay the witness fee prescribed by law. You must personally serve the subpoena at least 5 days before the trial. This is done by giving a copy of the subpoena to the witness in person along with the prescribed witness fee.

The witness fee for a professional or a consultant is currently $40 and for other witnesses it is currently $15. If a witness lives more than 20 kilometres from where the court is located, they are also entitled to travel, accommodation and meal expenses. Court staff can provide you with the current rates for these expenses.

Sometimes, witnesses may be permitted to testify by phone. If you want to have a witness testify by phone, you need to get permission from the court before the trial date. This can be requested during the case management conference. If you did not bring it up during case management, you can ask the court staff how to get permission before your trial date. Make sure the court has any documents that the witness is going to refer to.

There may be practical concerns about a witness testifying by phone. This is especially the case if they will be referring to documents or photographs. The practicalities of this may be discussed at the Case Management Conference or with the court staff.

Even if a witness is set to appear by phone, the trial judge may later require that the witness appear in person. This may be the case if testimony by phone proves confusing or unsatisfactory. The court usually requires the presence of witnesses at trial if their testimony concerns facts which are disputed.