Witness Absence in Ontario’s Small Claims Court

The success of a Small Claims Court matter often relies heavily on witness testimony. A witness can offer vital evidence, corroborate facts, and strengthen credibility. However, when a witness fails to appear at trial in Ontario’s Small Claims Court, the consequences can be significant. The court must decide how to proceed without that testimony, and the party relying on the absent witness may face strategic and evidentiary disadvantages.

Understanding the procedural implications and the options available is essential for any party preparing for trial.

Voluntary vs. Summoned Witnesses

Witnesses may attend court voluntarily or under compulsory process through a Summons to Witness (Form 18A). The distinction is critical when determining how the court will respond to a witness’s absence.

• Voluntary Witness: If a party relies on a witness who agreed to attend without formal summons and that individual fails to appear, the court is not obliged to accommodate their absence. The party may be required to proceed without the evidence or testimony that the witness was expected to provide.
• Summoned Witness: If the witness was properly served with a Summons to Witness, and a witness fee was paid as required under Rule 18 of the Rules of the Small Claims Court, the court has greater authority to respond. The judge may adjourn the matter or, in some cases, issue a bench warrant compelling the attendance of the witness, particularly if the absence prejudices the fair hearing of the matter.

The party who issued the summons must be prepared to provide evidence of proper service and payment of fees.

Impacts of a Missing Witness

If the missing witness was central to establishing a key element of the claim or defence, the court may view the absence as a failure to prove the case. The evidence that was expected from the witness cannot be simply stated by the party instead. Ontario’s evidentiary rules generally prohibit hearsay unless specific exceptions apply.

The court may:

• Proceed with the hearing and render a decision without the witness’s evidence
• Allow an adjournment request if justified and supported by proper reasons
• Require the party to explain what efforts were made to secure the attendance
• Dismiss or weaken the credibility of the unsupported claim or defence

Litigants must always assess how critical each witness is to the matter and whether the case can be reasonably proven in their absence.

Strategies for Preventing No-Shows

To reduce the risk of witness-related setbacks, parties should:

• Serve key witnesses with a Summons to Witness in compliance with the Rules of the Small Claims Court
• Provide the mandatory witness fee and mileage allowance at the time of service
• Confirm attendance in writing prior to the hearing
• Consider alternative forms of admissible evidence, such as documents, photos, or expert reports, that can support the claim if a witness is unavailable
• Engage legal representation to assess the strategic weight of each witness in the context of the overall case

Missed witness appearances are more than inconvenient—they can fundamentally alter the outcome of a legal proceeding. Timely legal advice ensures that procedural requirements are met and that evidentiary gaps are anticipated and addressed.

For assistance preparing witnesses, issuing proper summons, and representing matters in Ontario Small Claims Court, contact Tim at MTS Paralegal Services. Located in Kitchener, MTS Paralegal Services delivers thorough and strategic legal support for litigants seeking effective case presentation in court.

Call (226) 444-4882 to speak with Tim today and ensure your case proceeds with confidence and compliance.