In the legal community, particularly among criminal defence lawyers and consumer-end civil litigators, we often refer to the Superior Court as “upstairs.” This is because most criminal offences are tried in the Provincial Court, and small civil claims are dealt with in the Small Claims Court. Certain family law matters may also be dealt with in the Provincial Court, but when property division is involved, the case must be filed at the Superior Court.
Although technically the Small Claims Court is a branch of the Superior Court, there is an entirely different set of rules at the Small Claims Court to facilitate easy access by the public. The monetary limit to the jurisdiction of the Small Claims Court is currently set at $10,000.
There are many considerations that must be taken into account when you choose to go “upstairs” to the Superior Court. Perhaps the most significant one is the many formal requirements in the Superior Court.
(A bit of trivia: one of these formal requirements is that the lawyers must be gowned when speaking to a judge of the Superior Court.)
Unlike the Small Claims Court or summary-conviction matters before the Provincial Court, only duly licensed lawyers acting as barristers may appear before the Superior Court. The lawyers handling the case are recognized as the “Solicitor of Record,” and may not withdraw their services without the Court’s permission. For this reason, lawyers generally exercise caution when giving out estimates for cases before the Superior Court.
Cost is an important consideration when litigating in the Superior Court. In contrast to the Provincial Court, at the Superior Courrt fees are payable upon issuing claims/applications, filing defences/answers, placing the matter for a hearing (set-downs), summoning witnesses, and certifying copies of documents.
In many cases personal service is required for the delivery of the documents. Law firms generally hire process servers for these tasks. Beyond the fees payable to the Court, a litigation levy must be paid to the lawyer’s professional indemnity insurance company, known as LawPro.
The biggest cost, however, is generally incurred by the lawyers for the preparation of hearings. Often, the parties are required to file briefs, formally called factums, prior to the hearing. The preparation time ranges from several hours to days, if not weeks, depending on the complexity of the matter.
These requirements all add to the escalating cost of litigation. Excluding court-ordered costs, a half-day motion in the Superior Court may cost a client anywhere from $3,000 to over $10,000; for a week-long trial, it may cost over $100,000. Indeed, going “upstairs” comes with a hefty pricetag.
