Small Claims Court

Should you give up the amount over $50,000 to stay in Small Claims Court?

Last updated October 7, 2026.

If you are owed a little more than $50,000, you can give up (waive) the extra and sue for $50,000 in Small Claims Court. The waived part is gone for good, because the rules do not let you split one claim into two lawsuits. The alternative is the Superior Court of Justice, where a licensed paralegal cannot represent you.

The right choice depends on how much you would give up, what the case could cost in each court, and how strong your evidence is. Our page on Small Claims Court representation in Hamilton explains how Carson Frankum, a licensed paralegal, helps people with claims inside the limit.

How does waiving the excess work, step by step?

The Ontario government's guide to suing someone in Small Claims Court says plainly that if what you are owed is more than $50,000, "you can still file in Small Claims Court if you are willing to waive the amount over $50,000." Here is how that decision usually unfolds.

1. Work out the principal you are owed. The limit in section 23 of the Courts of Justice Act is measured "exclusive of interest and costs", so leave interest and costs out. If the principal is $50,000 or less, there is nothing to waive; our guide to how much you can sue for explains what counts.
2. Measure the gap. Subtract $50,000 from the principal. That gap is what you would give up permanently if you stay in Small Claims Court. For a debt built from several bills, our guide to suing for an unpaid invoice shows how to total them.
3. Price the Superior Court route. In the Superior Court, an individual can act in person or hire a lawyer, and a corporation must be represented by a lawyer unless the court gives leave (Rules of Civil Procedure, r. 15.01). A licensed paralegal cannot appear there. Claims of $200,000 or less in that court generally run under the Simplified Procedure in Rule 76.
4. Price the Small Claims route. Court fees are set by O. Reg. 332/16: $108 to file a claim and $308 to set a trial date for most people. A licensed paralegal can advise you, draft the claim and represent you. Our page on Small Claims Court fees lists the rest.
5. Compare what you could recover in costs. In Small Claims Court, section 29 of the Act caps costs other than disbursements at 15% of the amount claimed, unless the court penalizes unreasonable behaviour. In the Superior Court, costs are in the court's discretion under section 131. The cap limits what you can win back, but it also limits what you can be ordered to pay if you lose.
6. If you waive, claim no more than $50,000 on the Plaintiff's Claim (Form 7A). It is sensible to explain in the reasons section that the full debt is larger and that you are giving up the balance, so your claim and your attached invoices line up. Rule 7.01 requires the documents your claim is based on to be attached.
7. Ask for interest on top. Interest does not count toward the limit, so you can still claim prejudgment interest on the $50,000 under section 128 of the Act, or at a rate your contract sets.

What changes the answer?

There is no single right answer. These are the factors that usually tip the decision, with the rule behind each one.

How big the gap is

Giving up $1,500 on a $51,500 debt is a very different decision from giving up $20,000 on a $70,000 debt. The smaller the gap compared with the extra cost and time of a Superior Court action, the more waiving tends to make sense. Rule 6.02 of the Small Claims Court Rules forbids dividing one cause of action into two or more actions to fit under the limit, so the waived part cannot be collected in a second lawsuit.

The 15% costs cap cuts both ways

Section 29 of the Courts of Justice Act means a winner in Small Claims Court usually recovers only part of what the case cost, but a loser also faces a capped bill. On a $50,000 claim, the cap on costs other than disbursements is $7,500, unless the court decides to penalize unreasonable behaviour. Our guide to the costs you can recover if you win covers disbursements and representation fees in more detail.

Offers to settle can raise the stakes

Rule 14.07 lets the court award up to twice the costs when a party beats its own offer to settle made at least seven days before trial. A well-timed offer can shift the math in Small Claims Court; see how offers to settle work.

Who you are

Under Rule 15.01 of the Rules of Civil Procedure, a corporation suing in the Superior Court must be represented by a lawyer unless the court grants leave. A small business that would rather not retain a lawyer often has a strong reason to stay in Small Claims Court, where Rule 1.02 of the Small Claims Court Rules allows a lawyer, a paralegal or another person to act as representative.

Whether you started in the wrong court

Section 23(2) of the Courts of Justice Act lets the local registrar transfer a Superior Court action to Small Claims Court if all parties consent before trial, the only claim is for money or personal property, and the claim is within the Small Claims limit. The action then continues as if it had started in Small Claims Court (s. 23(3)). If your claim is under $50,000, section 23(1.1) says it needs the Superior Court's permission to be started there at all.

Whether the other side can pay

A judgment is only as good as your ability to collect it. The Ontario guidance warns that winning does not guarantee payment. If the defendant has limited assets, chasing an extra amount in a slower, costlier court may not add much in practice.

A worked example

For example, imagine a Hamilton homeowner named Marcus. He paid a renovation contractor $38,000 for work that was abandoned halfway, then paid a second contractor $18,000 to fix and finish it. He calculates his loss at $56,000.

If Marcus sues for the full $56,000, he must go to the Superior Court of Justice. He can represent himself there or hire a lawyer, but a licensed paralegal cannot act for him. If he waives $6,000 and claims $50,000 in Small Claims Court, he can still ask for prejudgment interest on the $50,000, and a licensed paralegal can take the case from claim to trial.

His decision turns on a few questions. Is the extra $6,000 likely to cover the added cost and time of a Superior Court action? How solid is his proof of the second contractor's bills? Does the first contractor have assets he can actually collect from? If he chooses Small Claims Court and wins, costs other than disbursements are capped at $7,500 (15% of $50,000), and if he loses, the same cap limits his exposure. Contractor disputes like his are covered in our guide to suing a contractor in Small Claims Court. This example is hypothetical and is not based on any real client or result.

What mistakes do people make when waiving?

• Waiving when there is nothing to waive. Counting interest or court costs toward the limit can make a claim look bigger than it is. Interest and costs sit outside the $50,000 limit, so only the principal counts.
• Planning a second lawsuit for the rest. Rule 6.02 bars splitting one cause of action. Treat the waived amount as permanently gone.
• Using the old $35,000 limit. The limit has been $50,000 since October 1, 2025. Waiving down to $35,000 gives up money for no reason.
• Assuming a paralegal can follow the case to the Superior Court. Law Society of Ontario By-Law 4 limits licensed paralegals to listed forums, including Small Claims Court, and the Superior Court is not one of them.
• Letting the decision drag past the limitation period. Section 4 of the Limitations Act, 2002 sets a basic two-year deadline in either court.
• Forgetting to ask for interest. The Ontario guide to making a claim says interest must be requested in the claim form, so leaving it out can cost you money the limit would have allowed.

What to do this week

1. List every amount you are owed, with the document that proves each one.
2. Separate principal from interest, and check whether your contract sets an interest rate.
3. Calculate the gap between your principal and $50,000.
4. Check your limitation date: two years from when you discovered the claim, in most cases.
5. Look into what the defendant owns or earns, because collection matters as much as the judgment.
6. If you lean toward Small Claims Court, plan for the settlement conference and read what happens at a Small Claims trial.
7. If you will file in Hamilton, read about Small Claims Court at the John Sopinka Courthouse.
8. Book a consultation if you want a licensed paralegal to review whether waiving makes sense for your numbers.

Frequently asked questions

Can I get the waived amount back later?

No. Rule 6.02 of the Small Claims Court Rules says a cause of action cannot be divided into two or more actions to bring it within the court's limit. Once you sue for $50,000 on a larger debt, plan on the excess being gone for good.

Does waiving the excess also waive interest?

You still claim interest, but on the amount awarded rather than the full debt. Section 128 of the Courts of Justice Act gives interest on the money in the order, from the date the claim arose. Our guide to interest on debts and judgments shows the calculation.

Can Cheddar Paralegal PC take my case to the Superior Court if I do not waive?

No. Licensed paralegals can act in Small Claims Court under Law Society of Ontario By-Law 4, but not in the Superior Court of Justice. For the full amount in the Superior Court, you would need a lawyer or would act for yourself.

I already started in the Superior Court. Can I move to Small Claims Court?

Section 23(2) of the Courts of Justice Act allows a transfer on the consent of all parties, filed before trial, if the claim is only for money or personal property and is within the Small Claims limit. That would mean bringing the claim down to $50,000 or less.

Does the defendant have to agree to my waiver?

The Ontario government describes waiving the excess as the plaintiff's choice when filing, and the guidance does not mention any need for the defendant's agreement. The defendant can still dispute the $50,000 you do claim.

Does the waiver change the appeal rules?

Appeals depend on the final order, not on the original debt. Under section 31 of the Courts of Justice Act and O. Reg. 626/00, a final order for more than $5,000, excluding costs, can be appealed to the Divisional Court, where a lawyer is needed.

Is it worth waiving to keep the case simpler?

Often that is the real question. Rule 1.03 of the Small Claims Court Rules says their primary objective is the just, most expeditious and least expensive determination of every proceeding, and for many people that is worth a modest waiver. For a larger gap, the full claim in the Superior Court may be worth the extra cost.

Sources

• Small claims court: suing someone (Government of Ontario)
• Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 23, 29, 31, 128 and 131 (Ontario e-Laws)
• O. Reg. 626/00, Small Claims Court Jurisdiction and Appeal Limit (Ontario e-Laws)
• Rules of the Small Claims Court, O. Reg. 258/98, rr. 1.02, 1.03, 6.02, 7.01, 13.01, 14.07 (Ontario e-Laws)
• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 15.01 and 76.02 (Ontario e-Laws)
• O. Reg. 332/16, Small Claims Court Fees and Allowances (Ontario e-Laws)
• O. Reg. 293/92, Superior Court of Justice and Court of Appeal Fees (Ontario e-Laws)
• Limitations Act, 2002, s. 4 (Ontario e-Laws)
• Guide to Procedures in Small Claims Court: Making a claim (Government of Ontario)
• By-Law 4, Licensing, s. 6 (Law Society of Ontario)

Need help with a Small Claims Court matter? Contact us today for a consultation.

This page gives general information about Ontario law, not legal advice for your situation. Cheddar Paralegal PC is a paralegal firm licensed by the Law Society of Ontario; licensed paralegals can help only with matters the Law Society allows paralegals to handle.