Episode 0: Introductions & Podcast Overview

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Hello everyone and welcome to Episode Zero of my podcast. I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

This episode is really to introduce myself and give the grand overview of the series, a long disclaimer for my protection and yours, and a bird’s eye view of the Small Claims Court process in Ontario.

The reason why I started this podcast is to send out more information about small claims court. When I get calls from potential clients, I sometimes have to turn down their cases because my fees would outstrip what they would get in return if they won their case. Now, my fees are half that of the average lawyer, but I don’t want to put a client in the position of having to pay more for me than what they are suing for in the first place.

Now, this podcast is spread over 13 episodes and it will cover writing a plaintiff’s claim, defence, or defendant’s claim. It will also cover service of documents, motions, default proceedings, settlement conferences, how to amend claims and defences, offers to settle, costs, the enforcement of orders, appeals, and finally, dealing with the unexpected.

A lot of what I have to say will be in reference to the Rules of the Small Claims Court in Ontario, Canada. If you are in another jurisdiction, I can’t help you and you will have to talk to someone else in your jurisdiction and follow their rules.
This is probably as good as time as any to introduce myself. Before I became a paralegal, I used to work in the film industry in Toronto working as a union Camera Assistant. I worked on many shows both big and small. I worked in TV and in feature films. I also worked on commercials. When I was not working as a Camera Assistant, I was a limousine chauffeur driving everything from Lincoln Town Cars to the Party Busses you see in the Entertainment District in Downtown Toronto.

When you drive professionally long enough, you get traffic tickets. I didn’t hire a paralegal then, I defended those tickets myself. One of my first tickets was under the Liquor License Act for having open liquor in a motor vehicle.

Let me set the stage. I was driving the party bus one night carrying about 20-odd passengers. The law in the Province of Ontario is that you cannot have open liquor inside any vehicle, even in the back of a limousine. That includes the complimentary champagne that is there on your wedding day. The law says it can’t be open. So, my job was to drive the limo bus down to the Entertainment District, drop them off, then pick them up again when the bars close. And they brought enough liquor in 40-ounce bottles to stock two medium-sized bars. I’m not kidding.

Anyone who lives or works in and around the Entertainment District knows that traffic is a nightmare, and that the police are there working, walking the streets, or on bicycles, or on horseback. Last time I heard, on Friday and Saturday nights, up to 75 or 80 police officers are assigned to the district to keep the peace, in addition to the regular contingent in 52 division. Anyway, I driving the bus north on John Street south of King and I make my drop-off at the door of the club. I’m starting to get ready to leave the district and two cops come up to the door of the bus. “You’ve got open liquor on that bus!” one officer yelled. I played dumb. “What? What are you talking about?” Then the officers jumped into the bus and asked for my driver’s license, insurance and CVOR. I hand it over to them and then they see the liquor stash. Now on a 40-foot bus, and me as the driver, the bar in the limo bus is around the mid-point, or 20 feet away. One of the concerns about certain sections of the Liquor Licence Act is accessibility to open liquor. Somehow, I don’t think that could reach around from my driving compartment and grab an open bottle to bring it back from 20 feet away. Then one of the officers chirp that a limo bus is a public vehicle. I immediately countered that notion saying that it is a private hire with no expectation that the general public has access to the vehicle. Then, as the officer who stopped me was writing the ticket, he says to me, “Hey, I had to write the ticket because my sergeant said, ‘There’s booze on that bus!’” Really?

So, I was mad and perplexed at the same time, feeling that something wasn’t right and I when I finished my shift, I spoke to my boss and immediately said that there was an ‘expectation of privacy.’ I thought about that and I started doing some research on the Internet. I managed to find some case law and then I requested a trial.

On the trial date, the officer comes up to me and says, hey, look, I’ll put in a good word for you with the prosecutor and he can cut a deal with you. This won’t affect your driver’s licence, but if you have too many of them, the Ministry of Transportation will take notice. His face dropped immediately when I told him that I was going to take the matter to trial. In I go, nervous as anything, and this was before I ever heard of the word ‘paralegal’, conducting my own trial. Her Worship, the Justice of the Peace, enters the courtroom. Trial begins. The prosecutor immediately tries to trip me up.

“I find it unusual and irregular that the defendant has brought materials to court without disclosing them to me first.”

Now, I read a book on representing yourself at provincial offences, and in that book, I knew that your research belongs to you and you alone. Plus the fact that defendants do not have to give disclosure to prosecutors.

“This is my personal research, Your Worship. There is some case law here, but, if he wants to see that, I have no problem with it. Depending upon how this trial goes, I may not even need it,” I said. Looking back as a paralegal now, that’s a pretty bold statement I made to the court. That’s full of undeserved confidence and bragging before the start of the trial proper. I handed the case law up to the Justice of the Peace. I could sense her curiosity in how this was going to go.

The police officer who issued the ticket took the stand and gave his evidence in chief.

He made a few grand statements about me, then spoke about the traffic stop itself. He then tried to give evidence about statements I made to him.

This is significant. Police Officers are not allowed to speak about a defendant’s statements. There are special rules that must be followed. I read about those rules that book I told you about. What is supposed to happen is that the prosecution is supposed to ask for a voire dire. A voir dire is a trial within a trial, usually about the admissibility of evidence. In this case, the admissibility of whether my statements to the police were voluntary, amongst other things. If there was no voir dire, then the defendant can make an objection. Here’s how that went:

“Umm, excuse me Your Worship, I’m sorry to interrupt, but I would like to make an objection. There has been no voir dire on the statements the officer has attributed to me.”

The Justice of the Peace looked at me with surprise and seemed impressed with my objection. She looked at the prosecutor. I don’t even remember the prosecutor saying anything. Everyone in that courtroom knew that the game had changed quite significantly .

“I’ll allow the objection,” Her Worship said. Her Worship then asked a bunch of questions that got around any statements at the traffic stop.

After the prosecution ended the examination in chief, it was now my turn for cross-examination. My strategy hinged on the fact that there was no probable cause for the officer to enter the bus in the first place. My questions were centred around all of the possible situations where a police officer would be suspicious enough to pull me over. His answers would be “no” for each and every one of the situation asked.

“Did you see me swerving in my lane that prompted you to stop me?”

“No.”

“Did you see me commit any Highway Traffic Act offence that would prompt you to stop me?”

“No.”

“Now, Constable, you mentioned that you saw a person drinking from a red Solo cup, then make eye-contact with you, and then drop the cup out of sight. Correct?”

“Yes.”

“Did the cup have any advertising on from a liquor or beer brand?”

“No.”

“From outside the bus, could you see the open liquor from where you were standing?”

“No.”

Every scenario I gave him, he said “No.” Each and every “No” he gave, he got redder and redder in the face. I tried to hide the glee I got from his embarrassment.

Now the coup-de-grace: “So, Constable, on suspicion and suspicion alone you decided to enter the bus?”

“Yes.”

That was an important admission by the police. How traffic stops are supposed to work is as follows: the police see some sort of contravention of the Highway Traffic Act that prompts them to pull over and detain a driver. Then the police officer sees something else wrong in plain view without searching anything or touching other people’s private property. The plain view doctrine is what the police use in adding further, sometimes more serious charges, than the reason for initiating the stop in the first place. If it’s not in plain view, and there is no reason for the stop in the first place, the police do not have probable cause for the charges.

The Justice of the Peace recognized this dilemma for the prosecution. She then suggested a recess to the prosecutor, in which he scrambled off briefly to pick up some books of Ontario statutes. A paralegal that was sitting in the back of the court comes up to me in the recess.

“I can’t comment on how you’re doing during the middle of a trial. But if you were my client, I could make money off of you.”

Everyone was back and trial resumed.

It was then a discussion between the prosecutor and the Justice of the Peace about whether or not the prosecutor has made his case or not.

In the end, I was found not guilty and I won my first case.

Enough about me. I want to talk a little bit about the history and structure of the small claims court. There has been a small claims court in what is now known as Ontario since before Confederation. The first small claims court was first known as the Division Court back in 1837. It has always been a “people’s court” just as it is now. If you wanted to appeal the decision, the appeal would go to the County Court. The types of claims that came up in the Division Court are the same today. Business debts, return of goods, things like that.

The monetary limit in which a claim can be heard in the Small Claims Court has changed over time. The monetary limit in Small Claims Court in 1979 was $1,000. For a brief time, there was a split between Toronto and the rest of the Province, which left a two-tiered monetary limit, depending upon whether you were inside Toronto or outside of Toronto. Inside Toronto, the monetary limit was $3000. Outside of Toronto, the limit was still $1000. In 1984, Toronto Small Claims Court, known as the Provincial Court (Civil Division), was amalgamated again with the Small Claims Court for the rest of the province. But the division continued: Deputy Judges could only hear cases up to $1000 and Provincial Court Judges could hear claims between $1000 and $3000. Another major change came in 1990 with name changes to the various courts. The Small Claims Court became and is now a branch of the Superior Court of Justice. In 1993 the monetary limit was increased to $6000. In 2001, the monetary limit went up to $10,000. By 2010, the monetary limit increased to it’s new and current limit of $25,000.

The Small Claims Court is a special procedure that simplifies the rules of court and this special procedure goes out of its way to help self-represented people not familiar with the law and how it works. When you think of the difference between the Superior Court and the Small Claims Court, there is lots to consider. The Rules of Civil Procedure has 77 rules that govern court proceedings, while the Small Claims Court have 22 rules. The rules of evidence are relaxed in the Small Claims Court, allowing for “hearsay” evidence, something that I will talk about in an upcoming podcast episode. In the Superior Court, there are detailed rules on discovery of documents and evidence from each side of a claim. In the Small Claims Court, there are no special rules for the discovery of documents other than it must be in the claim or defence when served or given to the other side at least 30 days before trial. The biggest difference between Small Claims Court and the Superior Court is time. Small Claims Court actions take, from start to finish about a year to complete. Superior Court actions can take many years.

There are only two full-time Provincial Judges in the Small Claims Court, both centered in Toronto. Small Claims Court have Deputy Judges who adjudicate claims in their courts. They are senior lawyers appointed by the Regional Senior Judge of the Superior Court.

You may be wondering what kind of cases are heard in the Small Claims Court. Debts up to $25,000 form the bulk of the Small Claims Court case docket. Unpaid accounts for goods supplied or sold, services rendered, loans that go into default, rent arrears, and bounced cheques are called liquidated claims and have a known and easily calculated number. The Courts call these numbers damages or quantum of damages. If someone asks the question, “How much do they owe you?” and you can answer, “A thousand dollars,” that’s a liquidated claim.

But what if your damages aren’t as clear-cut as that? What if someone asks the same question, “how much do they owe you?” and your answer is, “I think a thousand dollars would cover it,” or, “I just want the contract to be over,” or, “It’ll cost me at least a thousand dollars to fix the car,” then your claim is unliquidated damages. It is anything that is in dispute as to what the actual amount of damages are and needs further evidence to determine what the amount should be.

Small Claims Court has limits as to what kinds of judgments it has to offer. This is called jurisdiction. The Small Claims Court has jurisdiction for the payment of money under $25,000, and that does not include interest and costs. The Small Claims Court has jurisdiction for the recovery of possession of personal property that has a value of under $25,000. The Small Claims Court cannot give “equitable relief”. “Equitable relief” is asking for an injunction, or requiring a party to fulfill a term in a contract. The Small Claims Court cannot give “declaratory relief”. “Declaratory relief” is a legal decision by a judge that determines the legal rights of the parties involved, and does not have a monetary amount.

This is the overall big picture of how the Small Claims Court works. When you determine that there is a claim to be made, and subject to the limitation periods, you write a Plaintiff’s Claim and file it with the Small Claims Court Clerk, paying $75 for an infrequent claimant. You then have six months to serve the defendants. When the claim is served, you fill out and swear to an Affidavit of Service ticking off the appropriate boxes as to how and when you served the Plaintiff’s Claim. The Defendant now has twenty days to serve and file a Defence, paying $40 to the clerk. If the Defendant has a counterclaim to the plaintiff, then they have a further twenty days to file and then serve a Defendant’s Claim. More Affidavits of Service are filled out for the Defence and the Defendant’s Claim, if any. If there is a Defendant’s Claim, you have twenty days to serve and file a Defence to the Defendant’s Claim.

If there is no Defence filed, the Plaintiff can then file with the Court Clerk to note the Defendant in Default. After paying a $100 fee, the Court schedules an Assessment Hearing. The Assessment Hearing reviews the documents provided in the Plaintiff’s Claim, the Plaintiff testifies, and wins the case without having a real trial.

When all of the documents are properly served, the Clerk of the Small Claims Court issues a Notice of Settlement Conference within 90 days of the last filing. On the day of the Settlement Conference, all of the parties gather together to discuss the case in front of a Deputy Judge, who will not hear the case if it goes to trial, or a Referee, who can make suggestions to a Deputy Judge for interim orders. If a settlement cannot be reached by either side, the Deputy Judge will allow the case to continue to trial. Any party, after the settlement conference can pay the $100 filing fee to request a trial date. The trial date can be from six to nine months away from the settlement conference date.

On the day of trial, the Plaintiff goes first, presenting the case and calling witnesses as needed. The Defendant gets to cross-examine the Plaintiff and the witnesses. The Defendant presents their case and call their witnesses. After each side presents their case, both sides then give submissions highlighting the strengths of their own evidence and the weaknesses of their opponent’s evidence. There are sometimes presentations of case law that fit the facts as each side sees it in order to persuade the Deputy Judge to rule in their favour. The Deputy Judge considers the evidence, tries to fit it with the law, and gives their judgment.

If one side or the other disagrees with the Deputy Judge on a question of law or the amount of the judgment, and the amount of the claim is over $2,500, the party that disagrees with the judgment has thirty days to file an Appeal with the Divisional Court. If the claim is under $2,500, then there is no right of appeal.

If there is no Appeal, then the winning side, now known as the judgment creditor, can ask for their money. If the loser, now known as the judgment debtor, refuses to pay the judgment, the judgment creditor can ask for enforcement by filing an Affidavit for Enforcement Request, and the paperwork for the enforcement measure you choose. That could be a Garnishment, a Writ for the Seizure and Sale of Personal Property, a Writ for the Seizure and Sale of Land, or an Enforcement Examination.

Easy, isn’t it?

Like I said, these are the broad strokes of what happens in the Ontario Small Claims Court. I am going to go over each step along the way, devoting a podcast to each topic.

Episode 1 will help you answer the question “Should I Sue?” I will review the limitation periods, the monetary limit, the types of remedies you can have, when to call a paralegal, and some resources to help the self-represented litigant in Small Claims Court.It will also be about the Plaintiff’s Claim and the Defendant’s Claim. I’ll talk about naming the parties, how to research the law, how to write the claim, pre- and post-judgment interest and costs, and filing the claims.

Episode 2 will be about Defences. I will review the naming of parties, how to research the law, special instructions about admitting to part or all of the Plaintiff’s Claim, how to write the defence, asking for costs and filing the defence.

Episode 3 is about the service of documents. Not just the Plaintiff’s Claim and the Defence. Service of Motions and Enforcement Notices are included as well. I will also discuss the various methods of service with their pros and cons.

Episode 4 is about Motions. This will be a discussion of various types and the purposes of motions.

Episode 5 is about Default Proceedings. I’ll discuss how and when it happens, the difference between liquidated and unliquidated claims, the consequences of default judgment, and a discussion as to how to set aside a default judgment.

Episode 6 is about Settlement Conferences. Here, you will find out the purpose of these court meetings, what to expect, and how to negotiate a settlement, if you’re willing to settle.

Episode 7 is about Amending Claims and how to go about doing that.

Episode 8 is about Offers to Settle. This should be an essential part of your strategy as it affects the amount of costs that one may recover if judgment is found in your favour.

Episode 9 is about the trial itself. This will be a simplified version of what happens during trial with some tips, reminders, and some suggestions to help you be successful with your matter. Some other issues that develop during trial is the introduction of evidence, the kinds of evidence you may give, and the basics about hearsay evidence.

Episode 10 will be all about costs. Costs of filing claims and defences, costs of motions, legal representation costs, self-represented litigants costs, Offers to settle and their effects on costs. Costs, costs, costs, egg, baked beans, sausage, and costs, costs, costs!

Episode 11 is about the Enforcement of Orders. Garnishments, Writs, and Examinations will all be discussed.

Episode 12 will be about Appeals from the Small Claims Court.

Episode 13 will be the wrap up episode on Dealing with Clerks and the Unexpected. It will be a story-time episode, where I will tell you my experiences with the clerks of the Small Claims Court and how to deal with anything weird that comes up during trial.

So, I guess that this is a good time to give my disclaimer.

All use of this podcast, website, and blog, is subject to the following Terms and Conditions. If you do not agree with these Terms and Conditions, please do not access or use this podcast, website, or blog. These terms may be changed by Simon M. Brown Paralegal Services at any time without notice. Your use of the podcast, website and blog constitutes your agreement to be bound by these terms.

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That should do it.

That’s kind of everything that I want to say in this episode. My last note to you is this. You might find that I repeat information that appears in other episodes of this podcast. That is intentional. I wanted to create a podcast that you could hear all at once or just certain episodes so that you can concentrate on material without having to listen to the other episodes to understand a reference I may make.

Thanks for tuning into this podcast. Don’t forget to leave a comment or a question in either iTunes or on my website.

Episode 9: Trial

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Twitter PicTranscript:

Welcome everyone to the Ontario Small Claims Court Podcast.  I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

 

I’m Simon Brown and this podcast comes to you via iTunes, Stitcher Radio, or by using your favourite podcast app and downloading your shows at www.osccpodcast.ca.  If you haven’t done so already, you can either subscribe to iTunes or Stitcher Radio to get the latest update from the Ontario Small Claims Court Podcast and have it downloaded automatically to your device.

 

In this Episode 9 of the podcast, we are going to talk about going to trial.

 

Try as you might, the other side refuses to see your side of the problem.  Hopefully, it’s not a case of letting your cognitive biases get the best of you, meaning that you will continue to press on to trial despite the fact that the law is against you.  In any event, you and the other side can’t see eye to eye, therefore you are going to trial.  To a certain extent, it represents a failure in the process.  At the heart of the matter is a dispute between two or more parties and there will be a clear winner and a clear loser.  Take a moment or two to mourn that loss.

 

In less civilized days, there were different forms of trial.  There used to be trial by combat and trial by ordeal.  Trial by combat was used in civil disputes that the two opponents would have a duel to the death, the survivor being declared the truth-sayer and protected by God for their virtue.  Trial by ordeal was essentially a criminal prosecution method.  The suspected defendant would have to endure a life or death ordeal such as having to walk through a burning fire, or to have molten metal poured on their chests, or even pulling a stone from a near-boiling kettle of water.  Now we get someone else to evaluate the evidence and make a decision.  It's a lot less gory, if you ask me.

 

First thing to remember about a trial is that a trial date is not automatic on the court’s end after a settlement conference. You have two years from the date of the settlement conference to do something, namely, to fill out the Request to Clerk Form and check the box for request for trial date.  If none of the parties files for a trial date, then the matter is considered to be abandoned.  It is usually a good idea to send a letter to the other parties involved to request available dates to set a trial date.  It shows that you have manners and class.  If they don’t respond to your letter, then consider yourself free of that burden and schedule a trial date with the clerk of the Small Claims Court.  Remember that each courthouse will have different procedures in setting court dates.  Sometimes it is a dedicated trial co-ordinator, other times it is the court clerk at the window.  If there is an agreed upon date or dates, then the trial is scheduled and you pay the fee to the clerk for that privilege.  The clerk will tell you the date and print up the Notice to send out to the parties by mail.  The court clerk may ask as to how long the trial is supposed to last.  Sometimes, the Deputy Judge in the Settlement Conference will come up with a number, such as a half-day trial or a full day one.  It helps the court clerk to determine a date for the trial.

 

Take note of the date.  This is very important.  A number of key rules hinge around the trial date.  One of them is evidence.  All of the evidence that you intend to rely upon in the trial has to be delivered to the other party and to the court at least 30 days before a trial, along with the appropriate affidavit of service filed with the court.  If you need to amend a claim, you need to do this at least 30 days before the trial date.  If you are changing your claim with less than 30 days left before trial, you need to have consent with the other party before doing so, or, failing consent, make a motion on notice that you intend to do so either before the trial date or on the trial date itself.  Just a reminder:  leaving it late in the game to amend your plaintiff’s claim, defendant’s claim, or defence may have cost consequences for the impending delay that you are going to create, so be aware.  If you do not show up for the trial date, then the action can be dismissed with costs in the case of the plaintiff’s claim, or finding of liability in the case of a defence, with added costs.

 

Going to a courthouse for your trial will be intimidating at first.  You’ll be fine.  Arrive early to courthouse to give yourself time to find which courtroom you are in.  Although, on your Notice of Trial, they will have the courtroom number listed, it could be moved to another courtroom on the day.  That means that you will have to confirm the trial docket list at the main board in the courthouse.  In the bigger courthouses, there is a very large board divided into civil and criminal courts.  On the Civil Trial board, the dockets are subdivided for each courtroom.  The Docket list for Small Claims Court will have a number of matters, up to about 10 separate matters for the day.  It usually breaks down this way:  there will be about three or four motions scheduled, along with three or four hearings, such as a contempt hearing or an examination hearing.  Towards the end of the list, there are scheduled up to three trials.  Don’t panic.  This is deliberate on the part of the court.  The motions and hearings usually take up the least amount of time.  It only gets dicey if any of these hearings are contested.  Why are up to three trials scheduled for the day?  The court is betting that up to two of the trials will either be rescheduled and be given priority above the rest, or will settle on the trial date.  If there is a trial that is in its second trial date or more, that trial has the priority.

 

About fifteen minutes before the scheduled court time, either the court reporter or the court services officer will come out of the courtroom and will take attendance.  At the appropriate time, you will be asked to enter the courtroom.

 

The playing field known as a courtroom can be a bit disorienting at first.  When you enter the courtroom, there is a section known as the public gallery or body of the court.  In between the body of the court and the judge’s dais is a low fence known as the “bar”.  It separates the public from the people at trial. Next, there are two tables which are called counsel tables.  That is where the Plaintiff and the Defendant sit. Plaintiffs are on the right-hand side (or the Judge’s left); Defendants are on the left-hand side (or the Judge’s right).  Sometimes there are signs that help direct you to where you should be.  If in doubt, ask the Court Reporter or the Court Services Officer.  In between the Judge’s desk and the counsel tables sit the Court Reporter, the Court Monitor, and also the Court Services Officer.

 

Court is a formal place to go and it has a protocol or way of doing things that represents the history of the court.  When a judge enters or leaves a courtroom, you have to stand up.  If a judge enters the courtroom, before she sits down, she will bow to the body of the court.  You will return that bow.  You do not have to bend at the waist to make the bow, or curtsy to the judge.  You bow from the neck.

Don’t bring food into a courtroom; ditch it outside in the garbage can.  Don’t you dare chew gum in court, as well.  Take your hat off inside the courtroom; the only exception is religious headgear.  When talking to a judge, do not put your hands in your pockets.  If you are a nervous fidgiter, you can hold your hands together, place them on the desk in front of you, or hold onto the sides of the lectern.  Do not leave the courtroom when the judge is speaking.  Do not talk to your friend or witnesses when you are waiting for your matter, because it is very distracting to the participants, let alone the judge trying to consider the evidence before her.  Lastly, don’t read the newspaper or a magazine inside the courtroom; it’s disrespectful, to say the least.

 

You will find that the average trial, with minor alterations, will consist of ten steps.  Here they are in order:

  1. The Opening Address
  2. The Plaintiff’s case in chief
  3. Cross-examination
  4. Re-examination
  5. The Defendant’s case in chief
  6. Cross-examination
  7. Re-examination
  8. The Closing Address or Submissions
  9. The Decision
  10. The assessment of costs.

Let’s look at them one by one.  The first is the opening statement.  The deputy judge will ask the plaintiff to go first.  Some Deputy Judges will skip this part and will go straight to calling witnesses, but if given the opportunity, you should have a quick paragraph or two ready to say.  This will frame your entire case.  There is no time limit as to how long your opening statement should be, but keeping it short and sweet wins the day.  As the plaintiff, that opening statement will help the court focus themselves to the task at hand.  “Your Honour,” you say, “this case is about an unpaid invoice for $1,000.00 worth of widgets which I sold to Jane Doe on June 20th, 2015.  You will hear evidence from my testimony of how I came to know Jane Doe, her order of widgets, and how I delivered those widgets.  You will also hear my evidence of how I tried to collect the debt owed to me and Jane Doe’s response to my attempts to collect.  I will be presenting documentary evidence of the invoice, the delivery waybill and my letters to collect on the outstanding debt.  Thank you.”

 

Then the Deputy Judge will turn to the Defendant, Jane Doe, and ask if they have an opening statement.  “Your Honour,” you say, “in my Defence, I agree that I made an order to ABC Widgets Inc., however, I will show that those widgets were defective.  My position is that there was an implied warranty for the fitness of the widgets for the purpose that they were sold.  Those widgets were defective; therefore, no money is owed to the plaintiff.  I will show in my testimony that after receiving the widgets, how I discovered that those widgets were defective.  I will also bring in an expert witness, John Q. Expert, to testify to his findings and tests made on those widgets.  I will be presenting documentary evidence of my complaint letter to ABC Widgets Inc., their response, and the expert report of the results of testing the widgets.  Thank you, Your Honour.”

 

Boom!  There it is!  Opening statements are now out of the way.  It was short, to the point.  On the Plaintiff’s side, you know that there is a contract of some sort at hand.  On the Defendant’s side, you know that there was some sort of problem with the widget, and that’s why they’re not paying.  Both sides have stated that they have evidence to support their side of the story.  Nobody is dissing each other, calling them names, or taking pot-shots at each other’s character.

 

Here are a couple of things to know about presentation.  It’s good to write things down to know where you are going with an opening statement or submissions.  If you can help it at all, try not to read it from the page or, at the very least, look up to the judge and make eye-contact with her.  Public speaking is the number one fear people have.  The one thing that should help guide you when you stand up and make your opening statement is to remember that you are really only talking to one person:  the judge.

 

So, now that opening statements are out of the way, the plaintiff will start with their case.  You will be calling evidence through witnesses.  As you are representing yourself in this case, you will tell your side of the story.  Don’t do that old Hollywood gag where your personality is suddenly split between being a lawyer and being a witness, where you ask a question then run to the witness box and give the answer.  First of all, it’s tiring to do and tiring to watch.  Secondly, it makes you look like a fool.  Just tell your side of the story honestly, without cheap shots to the other side, and answer any questions that the judge asks of you.  Having done your legal research ahead of time, you have a good idea as to what the legal tests are and what information is needed to prove your case.  You will have some documentary evidence of some sort, whether it is a bill, estimate, or a letter, that helps you to make your case believable.  When you are telling your story to the judge, don’t forget to answer the questions: who, what, when, where, how, and why.  You will probably have to repeat this sequence of questions several times for each fact that you present to the Small Claims Court.  Being able to answer those questions give the Deputy Judge weight, in air quotes, to your evidence.  Weight, (I’m doing air quotes again) is legalese for “making your fact more believable”.  When judges speak of evidence having more or less weight, they are talking about the evidence having more or less believability.  This is different from credibility.  Credibility, (more air quotes), has to do with whether a judge believes not just the evidence, but the person giving the evidence.  That is a larger context.  A judge can find weight in a person’s evidence, but find the witness themselves lacking credibility, or in other words, whether the judge finds the person to be more or less truthful.

 

When you are finished with your story, the judge may ask you some questions.  Once she is done, the Defence will have an opportunity to cross-examine you.  They will test your story, they will try to find holes in it, and they will try to reduce the weight of your testimony.  A few notes as to how to respond to cross-examination.  First of all, listen carefully to their question.  Always answer their direct question.  You do not have to volunteer any additional information.  Don’t lose your temper with the person asking you questions.  They can ask almost any kind of question, but within limits.  The Small Claims Court is guided by section 27 of the Courts of Justice Act.  That section states that the court can admit as evidence anything that is relevant to the subject-matter of the proceeding, but can exclude anything that is unduly repetitious.

 

When cross-examination ends, sometimes there are new issues that you didn’t raise in your examination-in-chief that came up during cross-examination.  The Deputy Judge will give you the opportunity to address those new issues in re-examination.  This re-examination is in part to give you the fair opportunity to respond to the new issue, but only the new issue.  You can’t go off bringing up new issues up unless you have another witness to examine that can address the new issue.  The Defendant will be given an opportunity to also respond to your re-examination in regards to that specific issue.

 

Some of you will have additional witnesses to give their version of events.  Usually it’s to help you support your version of the facts.  They saw the same thing you did, for example.  When you call your witness, you are limited to what kind of questions you can ask.  Remember the who, what, when, where, how, and why questions?  Those are called open questions.  An open question allows the person answering to tell their story; it allows them to elicit the facts of your case.  A closed question usually has the answer to the question within the question itself.  A closed question usually only have a yes or no answer.  When you are asking questions in examination-in-chief, you are only allowed to ask open questions.

 

You may have to introduce documents to be made into evidence for the court to consider.  There is a special way to do that.  Generally, to introduce the document, you will have to establish what the document is.  You have to introduce the document to your witness to see if they recognize it.  If your witness made the document, ask them who made the document.  This is called authorship.  Generally, a witness cannot testify on a document that they are not the author to, but there are exceptions.  You then ask the court to make the document an exhibit for your case.  Write down the number or letter for the exhibit so you can help the court to reference it later when you make submissions.

 

When you are finished with your questions, the defence will have the opportunity to ask their closed questions as cross-examination to your witness.

 

Cross-examination can be a bit of a dark art.  Generally speaking, cross-examination has four purposes:

  1. To reduce the weight of the evidence of the witness on the stand;
  2. To use the evidence the witness on the stand to reduce the weight of the evidence given by other witnesses that does not help your case;
  3. To corroborate the evidence that helps your case; and
  4. To turn the evidence made against your case into evidence that can help your case.

When you cross-examine the witness, don’t be angry or antagonistic against them.  The witness is already defensive, especially the plaintiff or defendant.  What you need to do is to be polite and sincere.  When the plaintiff or defendant acts defensively on cross-examination, they risk making themselves less believable in the eyes of the court.  Let them do that job for you.

 

There are other witnesses that are third parties that usually have no axe to grind.  Most of these witnesses are willing to help.  To get the most from a willing witness, it is better to ask them to help you out in explaining things to the court.

 

There are three things that you have to know

When all parties have presented their evidence, the Plaintiff will be allowed to give closing arguments, also called submissions. This is where the art of public speaking begins.  You are going to put together all of the pieces of your case, from all of the evidence you have had entered, pull apart the pieces of evidence entered by your opponent, apply the law to all of it, and explain to the deputy judge exactly why you should win.  The Defendant will also be allowed to give submissions by putting together their pieces of their case, reconstruct the pieces of the plaintiff’s evidence to create a different picture, apply the law to all of it, and explain to the deputy judge exactly why they should win.

 

Time for judgment.  The Deputy Judge will do one of three things:  give their decision right away, take a brief recess in order to take some time to review their notes and then give a decision, or do something called “reserving” their decision in which the court is adjourned to a new day and time to give their decision.  On rare occasions, a written judgment is sent to the parties after submissions so that the parties don’t have to come back for a new trial date just to hear a decision, but also to allow the Deputy Judge time to reflect on the evidence before handing down a decision.  Deputy Judges typically have up to three months to render a decision.

 

Some Deputy Judges will give detailed reasons, most often orally.  Final orders are usually quite sparse, a finding for or against a party, how much money is owed to a plaintiff (if at all), and the allocation of costs and disbursements.

 

When a decision is handed down, there is one more decision to be made by the Deputy Judge:  how much for costs and disbursements.  Costs and disbursements are in addition to whatever a plaintiff claims as damages.  If your damages are twenty-five thousand dollars, and remembering that the jurisdiction of the Small Claims Court is no more than twenty-five thousand dollars, the winning party shall get costs and disbursements as extra money awarded by the court.  Costs involve the fees to file claims or defences, or representation fees.  Disbursements are the bills you paid in connection with your Small Claims Court Matter, such as transcript fees, courier charges for delivering documents to each other, process server fees, sometimes even travel expenses for witnesses for them to appear in court on your behalf.  Costs and disbursements in Small Claims Court will have its own podcast episode, but suffice it to say that this will become the last area of argument between the two sides at trial.  There are some rules that you will have to be aware of.  Those rules are Rule 14 and Rule 19.  These rules are also governed by section 29 of the Courts of Justice Act.

 

Rule 14 has to do with the doubling of costs in the face of a reasonable offer to settle before having a trial.  The courts definitely will penalize someone who didn’t accept a reasonable offer before the time limits established in Rule 14.  This rule applies to both Plaintiffs and Defendants.

 

Rule 19 discusses the kinds of costs and disbursements allowed to be paid by the unsuccessful party, representation fees, compensation to self-represented parties, and monetary penalties added as costs to parties that unduly complicate or lengthen a matter.

 

That’s the end of a trial.  At one time, trials usually took no more than a half of a day to a single full day of trial.  With the increase in the monetary limit to twenty-five thousand dollars, I am seeing more matters that are a bit more complex, requiring expert witnesses, and increasing in time from a single day trial, to three, even four-day trials.

 

The last thing to talk about is what happens when you get a decision that you feel is wrong or a special circumstance has occurred in which your matter was not given a full hearing?  There are two instances where you have an out.

 

You can bring a decision back to a trial deputy judge under Rule 17.04 on a Motion for a New Trial.  The requirements under this specific rule are extensive.  You must serve and file a notice of motion as required under Rule 15.01.  In your supporting affidavit, you must provide proof that you have made a request for a trial transcript that contains the reasons for judgment and any other portion of the trial that is relevant to the motion.  When you get the transcript, you must serve it on all parties that were served with a notice of trial, and file the transcript with the court at least three days before the motion hearing date along with an Affidavit of Service.  In this instance, there are only two conditions that the court will act on to grant your motion:

  1. There was purely an mathematical error to determine the amount of damages awarded; or
  2. There was relevant evidence that was not available to the moving party at the time of the trial and could not have been reasonably been expected to have been available at that time.

That’s pretty narrow, and the law is deliberately constructed in that way.  If the moving party can show one of the conditions apply, then the court can make the following rulings:

  1. Grant a new trial (usually based upon new evidence);
  2. Fix the judgment to what it should have been given at trial and provide a revised order; or
  3. Dismiss the motion.

 

If you disagree with the ruling in Small Claims Court, and for any other reason other than one of the two conditions mentioned earlier, you have no choice than to bring an appeal to the Divisional Court.

Divisional Court is like the Small Claims Court.  It is a branch of the Ontario Superior Court of Justice.  It is a court that is created by statute law.  The Divisional Court’s jurisdiction to hear Appeals in the Small Claims Court is found in section 31 of the Courts of Justice Act.  The Divisional Court does not hear all appeals; there is a prescribed amount before the Divisional Court will consider your appeal.  The prescribed amount as of June 2016 is $2,500.00.  That means that the Plaintiff’s Claim must have been for $2,500.00 or more.  If it is less than that, you have no right of appeal.  This also means that if the Plaintiff sues for $10,000.00, but the order is for $1,000.00, you still have the right of appeal because of the fact that the claim is over the prescribed amount.  The amount of the order is not to be considered.

 

Now, I’m not going to go through the ins and outs of a Divisional Court Appeal in this episode, but I will go over some of the considerations you will need to make before you decide to embark upon an appeal.

 

Your first consideration is that appeals from the Small Claims Court are risky ventures.  You will have to be dead-certain that the law is with you to take it to an appeal.  Over 80 per cent of all appeals fail.  Those are not great odds when you consider that 4 out of 5 appeals will lose for sure.

 

The second consideration is that Divisional Court is not user-friendly to self-represented parties.  Section 31 of the Courts of Justice Act may set out that there is a jurisdiction for an appeal, but the rules of that appeal are found in the Rules of Civil Procedure, starting at Rule 61.  From the timing of an appeal, to the colour and weight of card stock on the back of your thirty-pages or less factum, down to the short-forms allowed for naming the electronic files for use by the Divisional Court; this process is rules-based and you will need to follow them as best as you can.  My understanding is that if you hire a lawyer to take you through the Divisional Court, you are likely to put down a $5,000.00 retainer, just to start.  Costs then go up from there.

 

The third consideration is an appeal is not a do-over for your trial.  There is no new evidence admitted.  You will have to get transcripts of your trial and point out if there were errors in law that the Deputy Judge has made.  If there are no errors in law, then the Deputy Judge must have misunderstood the evidence.  Even if you find that there has been some sort of error, it does not necessarily follow that it will change the outcome of the judgment made.

 

The fourth consideration you should make is that if a party is successful in their appeal, they are entitled to costs for the appeal.  It also follows that if the party loses the appeal, they will have to pay costs.  Can you afford the extra expense?  What if the other side hires a lawyer and you didn’t and you lose the appeal?  You could be looking at paying $5,000.00 extra that you didn’t expect or have to pay if you didn’t launch an appeal in the first place.

 

A fifth consideration is that you are now expending more time, money, and effort in prolonging the outcome of your Small Claims Court matter, in essence defeating the features that Small Claims Court has:  speed and efficiency.

 

So, in other words, a Small Claims Court appeal is not for the faint of heart.  But I don’t want to discourage you from launching an appeal.  I cannot stress enough, however, the necessity of seeking legal advice before you file your Notice of Appeal.

 

That wraps up this podcast.  Your comments and questions are always invited.  There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides.  There you will find the Guide to Getting Ready for Court.

 

Thank you for listening and I hope you join me again soon.

Episode 8: Offers to Settle

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Twitter PicSHOW RESOURCES:  SMALL CLAIMS COURT GUIDES

SHOW NOTES:

Welcome everyone to the Ontario Small Claims Court Podcast.  I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

 

I’m Simon Brown and this podcast comes to you via iTunes, Stitcher Radio, or by using your favourite podcast app at www.osccpodcast.ca.  If you haven’t done so already, you can either subscribe to iTunes or Stitcher Radio to get the latest update from the Ontario Small Claims Court Podcast and have it downloaded automatically to your device.

 

In this Episode 8 of the podcast, we are going to talk about Offers to Settle.

 

Offers to Settle are both at once are hard to get and easy to screw up.  That doesn’t mean that you should avoid them.  The Rules of the Small Claims Court have rules in place that encourage settlement by giving larger costs awards to those who make an offer that is rejected by the other side.  As always, certain conditions apply.

 

Offers to Settle are determined under Rule 14 of the Rules of the Small Claims Court and also Section 29 of the Courts of Justice Act.  In a nutshell, Rule 14 says:

  1. The parties can negotiate at any time to settle a claim on terms specified in the offer;
  2. The offer to settle must be in writing;
  3. If the rules for cost consequence are to take effect, then the rejected offer must have been made more than seven days before the trial starts;
  4. Either party can withdraw an offer at any time, but it must be done in writing;
  5. An offer is considered to have been withdrawn on the day after when the date of the offer is set to expire;
  6. A settlement offer cannot be accepted after a judgment that disposes of a claim;
  7. Disclosure of settlement offers or discussions cannot be made to the trial judge until liability has been determined;
  8. An offer to settle can be accepted at any time before the offer is considered withdrawn or the court disposes of it;
  9. The plaintiff can require as a condition of settlement to pay the sum into the court;
  10. If a party fails to comply with an accepted offer, the other party may make a motion to the court for judgment in the terms of the accepted offer, or continue the proceeding as if there was no offer at all.
  11. Failure to accept a reasonable offer has cost consequences for either party; and
  12. Self-represented successful parties may be awarded up to $500 as compensation for inconvenience and expense

 

So, the parties can negotiate at any time.  The courts love settlement offers.  You should learn to love them, too, because, in my opinion, there is no down side to making honest offers to settle.  If you are making offers that you know would be rejected by any right-thinking person, then you are taking your own chances there.  However, I’m not asking you to just roll-over, either.

 

Coming up with settlement terms can be simple and straight forward and you should endeavor to keep it that way, as most Small Claims Court matters usually concern only one-issue claims.  The great thing about settlement offers is that it can address issues of concern for both parties and the methods of getting to that consensus can be creative, including issues that do not directly involve money.

 

In writing the Offer to Settle, you can either use the forms available on the Small Claims Court Forms website, or you can write a letter that can express all of your terms and conditions.  Form 14A is the pre-printed Offer to Settle form that you can use.  The top part of the form is easy to fill out.  Put in the court location and address along with the court file number assigned to your case.  Name the Plaintiff and the Defendant.  The line after that begins with, “My name is…”, and funnily enough, that is where you put your name.  Paragraph 1 has the checkboxes; identify yourself as the plaintiff or defendant.  Paragraph 2 starts with, “I offer to settle this action against BLANK,” and funnily enough, that is where you put in the other party’s name.  The paragraph continues, “on the following terms.”  Now, look at all that blank space.  Lots of things happen here.  And all of it is up to you.

 

Don’t panic.  Many a writer has feared the blank page; you’re not the first one and you won’t be the last, either.  Here are some suggestions to help get started:

  1. If it is settlement for a monetary amount, name the amount and who gets to pay which party. Be clear on who pays and who gets the money.
  2. Remember when you indicated on the plaintiff’s claim that you had to choose what kind of interest you would be claiming? You know, that pre- and post-judgment interest?  You can indicate here whether that interest applies or not.
  3. Remember a brief discussion as to costs? Is the other party going to pay your costs such as filing fees and photocopies?  It’s up to you whether they pay that or not.
  4. How long does the other party have to pay you in full? Is it a full amount within a set amount of time?  If the other side can’t pay the amount all at once, can they pay in installments?  How long?  Three months?  Six months?  How much per month?  Can they accelerate payments so they can pay earlier?  Is the last payment less than the monthly payments?  Put it in writing.
  5. Who gets paid? Is it your company?  To you personally?  Put it in writing.
  6. What method of payment do you want? Bank draft?  Cheque?  Certified cheque?  E-mail transfer?  Cash?  Put it in writing.
  7. Do you need to exchange documents? Is there someone holding some document until payment is made?  When does this exchange of documents happen?  When everyone agrees?  When one party is paid in full?  You better get that in writing.
  8. Let’s say that it’s not just about the money. Let’s say that there is an issue over a bicycle.  One party has it; the other party wants it back.  When does the other party get the bike back?  In what condition should the bike be in when you get it back?  What happens if there is something wrong with the bike after you get it back?  Will it be repaired?  Will it be replaced?  Is the offer dead if the bike is returned to you in pieces?

Overall, you need to think about the results that you want.  You also need to think about consequences if the results you want don’t materialize.  Don’t forget to number your paragraphs for easy reading and reference.

 

Paragraph 3 says when the offer is good for.  You can give expiry dates on your offers.  You can stagger your offers if you wish.  You can give new offers after the old one expires, changing whatever terms wish.  If it is a final offer and you know when the trial date shall be, I put this phrase in the blank, “This offer to settle is available for acceptance until one minute after trial begins on (the trial date).”  The purpose of the phrase is to set a palpable deadline to the other party.  It shows two things.  First, the offer is the bottom line for you.  Second, if the matter is not resolved, you are definitely going to trial.  This final offer phrase will be important if you end up going to trial.

 

There are two very important bold boxes at the bottom of the second page.  The first one references Rule 14.06 of the Rules of the Small Claims Court.  It says to the person receiving the offer to settle that if they accept the offer and then fail to adhere to the terms of that offer, the party making the offer can do one of two things:  ask for a judgment in the accepted terms by way of a motion, or proceed to trial as if the offer was never given.  This is to give pause to parties that want to delay proceedings and otherwise frustrate parties acting in good faith.  There are consequences to reneging on a deal.

 

The second bold box refers to Rule 14.04.  It says that if the other party refuses to accept the settlement offer, neither side can file the offer until the trial determines the final outcome, especially when there are questions as to who is liable and how much is to be paid as damages.  This is to protect the settlement conference negotiations and cannot be used as evidence at trial to say things like, “Why didn’t you accept this offer?”

 

Sometimes, Offers to Settle can go back and forth between the parties.  How does the court deal with multiple offers?  The first general rule is that when one party gives the opposing party an Offer to Settle, then gives a second offer to settle for a different amount, either higher or lower, that has the effect of cancelling the first offer.  The second general rule is that when Party A sends an offer to settle and Party B does not accept the offer, but Party B provides a counter-offer to settle the matter, both offers are on the table for acceptance by the other, unless one party says that they are withdrawing the previous offer.

 

So, how does one accept an Offer to Settle?  Again, you can use the Ontario Small Claims Court Form 14B.  It’s very straight forward.

What about withdrawing an Offer to Settle?  Hey, look over here!  Form 14C does that for you as well.  In both cases, either accepting or rejecting an offer, you can just send a letter with your answer.

 

If you have noticed, you will see Form 14D on the Ontario Small Claims Court Forms web page.  Let’s take a closer look at that one.

 

This is the Terms of Settlement form that you can use.  At the top, as always, is the court location and address portion, along with the court file number assigned to your matter that you will fill in.  The names of the parties are to be included.  Make sure that the names matches the names found on the Plaintiff’s Claim.  Now, the form assumes that the Terms of Settlement is for money damages.  It also assumes that the lump sum includes interest and costs.  If that doesn’t apply to your case, feel free to put a windshield wiper through the offending words or lines and have each party initial the strikeout.  Then there is that huge blank space again.  If you have already filled out an Offer to Settle Form, then you just have to transfer that information over to the Terms of Settlement.  On the last page, there are some standard terms that are already written for you.

 

Paragraph 2 says what happens to the court case after settlement.  The claims are withdrawn, like it never happened.

Paragraph 3 says, “If a party to these terms of settlement fails to comply, judgment in the terms of settlement may be obtained

against that party on motion to the court or this action may continue as if there has been no settlement.”  This is a repetition of those boxes I told you about in the Offer to Settle, just packaged into a single sentence.  This paragraph reflects Rules 14.04 and 14.06 of the Rules of the Ontario Small Claims Court.

 

Paragraph 4 says, “Provided that the terms of settlement are complied with, the parties above fully and finally release one

another from all claims related to the facts and issues raised in this action.” This is a “no comebacks” clause.  If all of the terms of the settlement have been met, then all of the parties can expect that everything mentioned in a Plaintiff’s Claim, Defence, and Defendant’s Claim have been addressed, satisfied, and that the matter is truly over and done with.  If one of the parties decides to sue for the same reasons again, that’s considered a no-no.  That new action will be considered as an attack against the Terms of Settlement, an agreement that was meant to finalize things.  As always, there are exceptions to the rule:  the first being that there was some sort of bad faith bargaining done by one of the parties; the second, a new breach that happens after the signed agreement.

 

After that paragraph, there is the signature block.  The parties don’t have to be in the same room at the same time for the agreement.  One party can sign on one day, and then the other party can sign on the next day.  The important thing is that the Terms of Settlement is signed by all of the parties.  Everyone gets a copy of the Terms of Settlement.

 

When the Terms of Settlement is signed, everyone should also sign Form 11.2A Request for Clerk’s Order on Consent.  On page 3, mark the checkbox that includes confirmation that the Terms of Settlement has been satisfied.  File both the Terms of Settlement and the Request for Clerk’s Order on Consent with the court office.

 

That sort of completes this section on when Terms of Settlement are agreed to and all of the parties, well, they don’t feel happy, but definitely relieved that their ordeal is over.  But what happens when no one can agree and you end up going to trial?  Did you waste time trying to settle the matter?  No you didn’t.  Here’s why.

 

Let’s remember the rules for a moment here.  Take a look at Section 29 of the Courts of Justice Act first.  And I quote:

An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 percent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behavior in the proceeding.

 

Now, let’s take a look at Rule 14.07, subrule (1):

When a plaintiff makes an offer to settle that is not accepted by the defendant, the court may award the plaintiff an amount not exceeding twice the costs of the action, if the following conditions are met:

  1. The Plaintiff obtains a judgment as favourable or more favourable than the terms of the offer.
  2. The offer was made at least seven days before the trial.
  3. The offer was not withdrawn and did not expire before the trial.

 

Rule 14.07, subrule (2) says:

When a defendant makes an offer to settle that is not accepted by the plaintiff, the court may award the defendant an amount not exceeding twice the costs awardable to a successful party, from the date the offer was served, if the following conditions are met:

  1. The plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer.
  2. The offer was made at least seven days before trial.
  3. The offer was not withdrawn and did not expire before the trial.

 

So, what does this all mean?

 

Like I said before, the Ontario Small Claims Court loves Offers to Settle.  They love them so much, in fact, the court is prepared to give additional costs to a party that had a similar or better offer than what the plaintiff gets at the end of the trial.  The Courts of Justice Act sets a baseline cap of 15 percent of what is claimed for costs and representation fees.  The Rules of the Small Claims Court says that a Deputy Judge can raise that cap up to 30 percent of what is claimed for costs and representation fees.  If you have a $10,000.00 claim, you can claim as costs up to $1,500.00 which is the 15 percent cap.  If you get a judgment for $10,000.00 and have a settlement offer that is equal to or less than what you got at trial, that 15 percent cap of $1,500.00 can double up to thirty percent or $3,000.00.  And, get this, you add that $3,000.00 on top of the $10,000.00 that you already have proven.  That’s if you are represented by a lawyer or a paralegal.  Now, the bad news.  If you are self-represented, your costs can be capped to $500.00 because of Rule 19.05.  Sorry.  That’s just how it is.  I’m only telling you this because, if the other side is represented by a paralegal or a lawyer, their cost considerations are going to be just as important to them as it will be to you.  Just remember that if you lose, you might be paying more than $500 in costs, on top of whatever damages they prove.

 

Now, we have to take the worst-case scenario.  What happens when everyone thought that there was a settlement, but one side reneges on the deal?

 

The party who thought that they had a deal can bring a motion to the Small Claims Court.  That party will also need a supporting affidavit that says that:

  1. One side made an Offer to Settle;
  2. The offending side accepted the offer; and
  3. That the offending side breached a term of the Offer to Settle or withdrew their acceptance of the offer at some point.

Remember when I told you that Settlement Conferences are supposed to be secret between the parties?  When it becomes clear that a party breaks the agreement, the first thing that the court will look at is was there an agreement in the first place?  So, this is the only time when all of those negotiations open up and are presented to the court before a trial.  Not an easy process.

 

There are two remedies that you can have when someone reneges on an Offer to Settle.  The first remedy is to get a judgment in the amount that was agreed on in the Offer to Settle.  Therefore, the Offer to Settle is elevated from a private agreement to a court order.  Now, all of the mechanisms for court enforcement become available, like garnishment, the seizure and sale of land, and the seizure and sale of personal property.  The second remedy is to throw everything out the window and request to return to the trial process.  A word of warning, though:  make sure you have such a strong case that there can almost be no doubt that you could win.  Judges are capable of doing anything, and even the most straightforward case may end up sideways in a ditch. This is not an indictment against judges, but it can also mean that in presenting your case, you make a mistake that the judge has to right by denying your claim or defence.  Also, bringing a case to trial opens up the cost consequences again.  Consider yourself warned.

 

That wraps up this podcast.  Your comments and questions are always invited.  There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides.  There you will find the Guide to Getting Ready for Court.

 

Thank you for listening and I hope you join me again soon.

Episode 7: Amending Documents & Claims

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Twitter PicSHOW RESOURCES:  SMALL CLAIMS COURT GUIDES

SHOW NOTES:

Welcome everyone to the Ontario Small Claims Court Podcast. I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

I’m Simon Brown and this podcast comes to you via iTunes, Stitcher Radio, or by using your favourite podcast app at www.osccpodcast.ca. If you haven’t done so already, you can either subscribe to iTunes or Stitcher Radio to get the latest update from the Ontario Small Claims Court Podcast and have it downloaded automatically to your device.

In this Episode 7 of the podcast, we are going to talk about amending documents and claims.

When people talk about amending documents, people naturally think about making a mistake and trying to correct it, kind of like this . . .

SFX: George Bush clip

Simon But the truth is that the real purpose of amending a document or claim is that it is used to reflect a change in circumstances, to reflect the addition of relevant facts, or to add additional arguments that better reflect the legal situation. Take, for example this other statement from another President of the United States . . .
SFX: Bill Clinton Denial clip
Sometimes you need to amend a claim because there are other causes of action that may be a better alternative to the original basis of the claim.

The Ontario Small Claims Court is actually quite forgiving with claims and defences about how they are written. In Superior Court, pleadings must be as exact as possible, because once you start your trial, you’re stuck with those pleadings. It becomes very difficult to change them. The reason why is simple: pleadings are written by lawyers who are supposed to know the law. When it comes to the Small Claims Court, the court is designed for the self-represented litigant. Therefore, tremendous leeway is given to written pleadings. The Small Claims Court will go out of its way to not only identify the cause of action as it is written in the claim or defence, but the Deputy Judge is free to draw upon their own experience as lawyers to apply other causes of action as the evidence unfolds. It’s because that the Small Claims Court must act as a summary court of law. Waiting for the self-represented litigant to realize another area of law in which to argue their case isn’t practical or fair.

Speaking as a paralegal, I cannot tell you how many times that a client comes in thinking they have one cause of action and not realizing that there may be two or three causes of action that may apply to their set of circumstances. Especially in employment law where a client was wrongfully dismissed and I found that they were leaving money on the table that should increase how much money they should be suing for. For example, did you know that if you are being paid commissions as a salesperson and then you are fired, that you would be entitled to commissions after you got fired? Here’s another example: did you know that if you are a construction contractor and that you are suing for breach of contract, that you could also sue on the basis that you provided materials and labour and that you should be compensated for it? That’s why I feel that if you want to sue someone on your own, then you should definitely have your claim reviewed by a paralegal or lawyer, if for no other reason than to make sure you are capturing every dollar that you are entitled to.

The right to amend is found under Rule 12.01 of the Rules of the Small Claims Court. Amending the document itself is straight forward. Take a copy of your plaintiff’s claim, defence, or defendant’s claim. If there are words or paragraphs that are being removed, take a ruler and with a straight line, cross out the offending words or paragraphs. If you are adding words or paragraphs, again, take a ruler and underline the new words or paragraphs. When you are finished with all of the insertions and deletions, make sure you have written on the front of the plaintiff’s claim, defence, or defendant’s claim the word “AMENDED”. Now you are free to serve the new amended document on all of the parties and can file the amended document along with the appropriate affidavits of service in the Small Claims Court. You do not need permission from the court to amend a claim or defence.

Unless. There is always an exception, isn’t there? The Small Claims Court does take exception as to when you can make the amendment. If it’s 30 days or less, you will need to get consent from the other parties to amend your claim or defence. This can be done by the Clerk of the Small Claims Court by all parties signing, then you serving and filing a Request for a Clerk’s Order on Consent Form 11.2A. If there is no consent, you must then serve, file, and argue a motion.

Form 11.2A, the Request for a Clerk’s Order on Consent is filled out the same way as a claim or defence is. If there is more than one defendant or plaintiff, don’t forget to add Form 1A after the first page and list the additional plaintiffs and defendants. On page 2 of the form, you will put your name or the name of your company as it was written on page one in the blank as to who is actually filing the Request. Make sure everyone got a copy of Form 11.2A and check that box off. Make sure that all of those parties that are affected by the request are not under disability and check that box off. Make sure that all of the parties have signed the Request, including new parties to be added, parties to be deleted, and parties that will be substituted. Check that box off when you are done.

Now go to Page 3 of the Request form and check off the appropriate box. The first three checkboxes are self explanatory. There is a checkbox for Plaintiff’s Claim, the Defence, and the Defendant’s Claim. The next three checkboxes are about adding, deleting, and substituting parties.

Sometimes mistakes happen as to naming the wrong party. This sometimes happen when you are naming a national donut shop chain as a defendant, but it is the numbered Ontario Incorporation that operates the particular store you are suing. You need to be suing the correct party; otherwise, you won’t get anything for your efforts. What if you have the wrong company name? There is a legal concept called ‘misnomer’ that can come into play. Misnomer generally works like this: you have named ABC Company as a party, but you find out later that ABC Industries Group Inc. is the parent to ABC Company. The test here is that if you change the name, does it make a difference as to who has liability? If it makes no difference, and all of the parties know that there is a lawsuit surrounding a particular set of facts, then no harm is done by changing the name in the pleadings. Another thing to be aware of is that under the Business Names Act, a company that is a party to a lawsuit cannot be in a proceeding if the business name contravenes the act or the business name is not registered with the Ontario government. The only exception is getting the permission of the court for the entity to use the business name in pleadings.

A general rule of thumb is that it is easier to remove the wrong parties than it is to add new parties. The reason why is multifaceted. The most common reason has to do with limitation periods for actions. Without exception, everyone is happy to accommodate you when you are removing a party from a lawsuit.

When you are adding parties to a lawsuit, you have to have in mind the Limitations Act. The Limitations Act says that generally, person who knows that they have a claim against someone has 2 years to bring a claim to court. If it is after that 2-year time, there are what’s called ‘discoverability’ clauses in the Act that states that the limitation period can start when the plaintiff realizes who that party is and what they had done. When the court assesses whether the party can be added to the claim or defence, the court will have to take into account what prejudice the new party will be in if they were to be included in the action. If the amendment happens after there has been a settlement conference, and that new-to-be-added party was not there at the first one, then the court may return everybody to the settlement conference stage in the proceedings.

The over-arching concern in amending documents is prejudice to the other parties that are affected by the amendment. The definition of ‘prejudice’ is being made to unjustly suffer. That prejudice may mean delay and adjournment needed by the parties based upon the new amendments. Usually, the courts will take that into account the prejudice suffered by a party by adding costs to the party making the amendment.

So, that takes care of how to make your own amendments to a document. But, what if the other party writes something that is totally argumentative or writes it in such a way that a trial judge will look at it and immediately think that you did something wrong making the process unfair? You can force the other side to make some edits. The way to do that is through a Rule 12.02 motion. The rule says that the court may strike out or amend all or part of any document that:
1. Discloses no reasonable cause of action or defence;
2. May delay or make it difficult to have a fair trial; or
3. Is inflammatory, a waste of time, or an abuse of the court’s process.
The stakes are higher in this process because the party who requests this motion can ask for the entire document to be struck, which would lead to dismissing or staying a claim, or granting judgment in favour of the plaintiff if striking a defence. If the document is a motion, then the motion can be stayed or dismissed with costs assigned to either side.

There are, of course two ways to approach this kind of motion, and both depend upon whether you are the moving party or the responding party. Let’s take a look at the moving party’s perspective.

In your affidavit supporting the motion, you will have to address one or more of the reasons why you are seeking the party to make an amendment or striking their document.

The first one is that it doesn’t disclose a reasonable cause of action or defence. This is where doing your legal research pays off in spades. Assuming that you have done your homework, you will know the legal tests involved in making a claim or raising a defence. The pleadings in of themselves should reveal the nature of the questions to be tried in order for the defence to meet the charge and respond accordingly.

The second reason is that the document may delay or make it difficult to have a fair trial. These are the people who file and serve reams of paper that mean nothing to the actual case itself.

The third reason is that the document is inflammatory, a waste of time, a nuisance or an abuse of the court’s process. These are usually easier to detect than the first two reasons. Sometimes, litigants use these pleadings to let out all sorts of grievances and slights against them in life and to vent it out directly at the opposing party. This is what human beings do, and it happens. If the pleadings call you a scumbag or a liar and a cheat, you can have those parts of the pleadings struck from those offending documents. The phrase “a waste of time” also means “no reasonable prospect for success”. To illustrate that point, let’s take, for example, the legal test for negligence. The test for negligence three-fold:
1. there must be a breach of a recognized duty of care through failure to meet the standard of care required;
2. there must be a causation of harm; and
3. that harm must have directly happened to the plaintiff and it was reasonably foreseeable.

Let’s frame this into an actual case. This case went all the way to the Supreme Court of Canada. The plaintiff was a customer of a bottled water service. One day, in a sealed bottle of water, he noticed a dead fly and part of another dead fly floating in it. This immediately made him vomit and caused all sorts of psychological trauma that affected his business and his everyday life for a period of time. So, time to apply the legal test for negligence.

Did the bottled water company owe a duty of care to the plaintiff? Yes, because bottled water company must make sure that there are no weird objects are floating around in their bottles or any other contaminants, either seen or unseen is in their water.

Was there a causation of harm? Yes, there was. The plaintiff had all sorts of reliable medical reports that proved that the plaintiff suffered from major depression and phobias directly from seeing the fly in the bottle of water.

Did it directly happen to the plaintiff and it was reasonably foreseeable? Yes, it did happen to the plaintiff directly, but no, it wasn’t reasonably foreseeable for the bottled water company to rationalize that every time that someone sees a dead fly in a bottle of water, that someone will get a psychiatric injury as a direct result of that kind of incident. If all of these parts are present in a claim, and you know they have no possible chance to win, based upon their pleadings alone, then you could bring a Rule 12 motion to court.

The phrase “abuse of the court’s process” can mean a myriad of things ranging from retrying a case that has already been resolved, or bringing the claim to the wrong court or multiple courts.

Sometimes, the court can, under their own initiative, stay or dismiss an action without either party making an issue of the document. If the court sees that this might be the case, the court can make this decision by written submissions only. The court would have to notify the plaintiff that it is considering an order under this section of the Rules. The plaintiff has 20 days to respond to the notice in writing and giving reasons why. Those written reasons can be no longer than four pages. If there is no response from the plaintiff, then the court can go ahead with the order without further notice to the plaintiff or any other party. If the court receives written submissions within the timeframe allowed and is kept to four pages maximum, then the court can tell the clerk to send a copy by mail to any other party. A party that receives the plaintiff’s written submissions has ten days to write a response to those submissions. The responding other parties must keep their submissions to four pages as well. In addition, they must send the response to the plaintiff, and any other party that requests to receive the response.

The court, again under its own initiative, can stay or dismiss a motion that appears on its face to be inflammatory, a waste of time, a nuisance, or an abuse of the court’s process.

If the court clerk becomes aware that an action or motion could be considered inflammatory, a waste of time, a nuisance, or an abuse of the court’s process, the clerk can notify the court of that situation.

Lastly, if the court recognizes that a person that is declared a “vexatious litigant” without obtaining permission of the court to start an action or bring a motion, the court can immediately order a stay or dismiss the action without giving notice.

You may be wondering how President Clinton amended his statement that you heard at the beginning of the podcast. Here it is.
SFX: Bill Clinton Apology clip
That wraps up this podcast. Your comments and questions are always invited. There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides. There you will find the Guide to Motions and Clerk’s Orders.

Thank you for listening and I hope you join me again soon.

Episode 6: The Settlement Conference

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Twitter PicSHOW RESOURCES:  SMALL CLAIMS COURT GUIDES

SHOW NOTES:

Welcome everyone to the Ontario Small Claims Court Podcast.  I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

 

This podcast comes to you via iTunes, Stitcher Radio, or by using your favourite podcast app at www.osccpodcast.ca.  If you haven’t done so already, you can either subscribe to iTunes or Stitcher Radio to get the latest update from the Ontario Small Claims Court Podcast and have it downloaded automatically to your device.

 

In this Episode 6 of the podcast, we are going to talk about going to a settlement conference.

 

Now you are in the thick of things.  The Plaintiff or Plaintiffs have filed and served a claim; the Defendant or Defendants have served and filed a defence; maybe one of the Defendants have filed and served a Defendant’s claim against one or more of the parties to the original action.  Lines have been drawn in the sand, and defaults have been noted to the clerk of the small claims court.  Let the games begin.

 

Within ninety days of filing the first defence, a settlement conference will be scheduled by the court clerk.

 

The purposes of a settlement conference are five-fold:

  1. It is supposed to help resolve or narrow the issues in the case;
  2. It is supposed to speed up resolution of the matter;
  3. It is supposed to encourage settlement of the action;
  4. It is to assist the parties in preparing for trial; and
  5. It is to provide full disclosure between the parties of the relevant facts and evidence.

 

Let’s remember first of all that this is a court that is built for self-representation.  One of the biggest things that deputy judges will try to do is to find out if there are areas of common ground; facts that both sides can agree on.  That way, if there is a trial to be had, the hope is that only the significant and important evidence will be heard.

 

This is me speaking as a paralegal right now that has experience working in the Small Claims Court.  The value I give my clients is my knowledge of the legal tests involved in a given matter.  That knowledge allows me to sort through the evidence to determine what is really needed; not to throw everything in, including the kitchen sink to make my case.  Section 25 of the Courts of Justice Act says that the small claims court is to hear and determine in a summary way all questions of law and fact.  That means the quicker I get to the point the better.  Section 27 of the Courts of Justice Act states that the small claims court may admit as evidence, oral testimony or any document or other thing, only so long as it is relevant and not repetitious.  Knowing what is relevant to your case makes for a quicker trial.  Knowing how much relevant evidence is needed for your case makes for a quicker trial as well.

 

So, the settlement conference, for a deputy judge or referee, is kind of like legal triage.

 

A typical settlement conference goes like this:

  1. The deputy judge or referee will explain what will happen during the settlement conference.
  2. The deputy judge or referee will talk to the plaintiff first. The plaintiff will explain to the deputy judge what their case is about.  The deputy judge is trying to see if you understand what kind of case you need to make if you are to be successful at trial.  The deputy judge might ask you some questions to clarify some point or evidence that might be relevant to your case.
  3. The deputy judge or referee will talk to the defendant next. The deputy judge is trying to see if you understand what kind of case you need to make if you are to be successful at trial.  The deputy judge might ask you some questions to clarify some point or evidence that might be relevant to your case.
  4. Sometimes, the deputy judge or referee may challenge you or your evidence. They want to see if you can appreciate the weaknesses in your case.  Don’t be defensive or offended by it.  It may become more difficult at trial, so be prepared for that challenge.  Besides, it’s better to know at a settlement conference what weaknesses your case has than to be at trial and suddenly your case inexplicably becomes pear-shaped.
  5. There will be an attempt to try and facilitate a settlement between the parties.
  6. If either one or both sides are entrenched in their positions, then it will be recommended to go to trial.
  7. The Deputy Judge will make an order to clean up any issues or to require further disclosure before trial.
  8. If the Settlement Conference is held before a Referee, then the Referee will make recommendations to a Deputy Judge for orders on a later date.

 

The settlement conference is a mandatory step within the Small Claims Court process when the court knows that it is a defended action.  The clerk of the court sets the time and date for the settlement conference within 90 days after the first defence is filed.

 

Both parties and their representatives either have to be at the settlement conference in person or connected by telephone or video conference call.  If there is a person that needs to be consulted, like a director or an officer of a corporation, that has to give their approval before an agreement can be made, then the party must arrange to have that person available by telephone during the settlement conference.  The parties that are appearing in person must have the authority to enter into a settlement agreement, so as not to frustrate the purposes of the settlement conference.  The court may order the parties to attend another settlement conference.

 

When you get the date of the first settlement conference you will also get a Form 13A, a Witness List.  Both sides need to serve upon the others this Witness List with all of the names and contact information that are expected to show up for trial.  There is also a section that includes other people that you believe that have knowledge of your matter, but are not sure yet as to making them a witness for your side.

 

You will also have to put together any additional disclosure materials and documents that you intend to rely upon at trial, whenever that is scheduled.  If you don’t have everything together, don’t worry if you can’t get your hands on it yet. You still have 30 days before trial to disclose documents or other evidence.  But, if you do have it, then go ahead and serve it.  You must serve the documents that you have and intend to rely upon at trial on or before 14 days ahead of the settlement conference date.  These documents and the Witness List must be served on the other party and filed with the court.  This can be served in any number of ways, and it doesn’t have to be personal service.  Service by regular mail is fine, but again, add five days to the service timeline, making it at least 19 days before the settlement conference date.  Rule 8 should be consulted here and you can listen to Episode 3 of this podcast to review your options.

 

Now, what if a party fails to attend the settlement conference?  For the first offence, the court may impose costs or other sanctions and order another settlement conference to be held.  For a second failure to attend a settlement conference, the court may strike the defence and dismiss the defendant’s claim (if any) and allow the plaintiff to prove the claim right then and there.  In the alternative the court may make any order as is just.

 

If a party attends the settlement conference, but is so inadequately prepared as to frustrate the purposes of the settlement conference or fails to file the Witness List and the disclosure as required, the court may award costs against the offending party.

 

Let’s assume that everybody did everything that’s needed to be done before a settlement conference: a defence has been filed; a settlement conference has been scheduled by the court; the parties have served upon each other all evidence they intend to rely upon at trial; a Witness List has been served.  How do you negotiate a settlement?

 

There are books dedicated to this one aspect of human conflict, and they are available at your local bookstore or library.  But it wouldn’t be a complete podcast without some general rules of thumb.

 

  1. This is your best time to ask for anything you need for personal closure on the matter, such as an apology or some other thing that not just about the money. The court can only give orders about the money, but settlement agreements can go far beyond what the court rules allow.  That’s why the deputy judges say that negotiation is the best resolution.  The opportunity to craft your own agreement without the court is limitless.  Leaving it all to a deputy judge will only end in disappointment.
  2. Rule 13.03 (3) says that, “At the settlement conference, the parties or their representatives shall openly and frankly discuss the issues involved in the action.” The courts use settlement conferences as safe places to talk about the issues.  Subsection (4) goes on to say, “Except as otherwise provided or with the consent of the parties, the matters discussed at the settlement conference shall not be disclosed to others until after the action has been disposed of.”  It’s like, “What happens in Vegas, stays in Vegas.”  I remember when I did my Alternative Dispute Resolution Course in Paralegal School.  It was a negotiation called the “Ugly Orange Negotiation Exercise”.  Two competing nations needed this fruit for their own purposes and can only buy all of the fruit from a third party.  One group only needed the pulp; the other group only needed the juice.  That exercise taught me that you have to separate your true interests from your positions.  And that’s why negotiations are held in private, so that all parties have the chance to reveal their true interests without repercussions.  So don’t say “no” to something without stating a reason why.  If you tell them why, they might be open to coming down from that position and may suggest an alternative altogether that works for both of you.
  3. What if one side does not want to negotiate? That may happen, but you should at least try.  It may require trying different tactics to get the opposite side to open up.
    1. “I can’t recommend that offer to my boss.” Listen carefully to what they’re saying.  They are not saying “No” outright.  They are indicating that a different number or position is in mind.  They want to see if you are willing to move from your position.
    2. “...Yeah, but you did this to me...” This is just one-upmanship.  It’s a competition for who was aggrieved more.  The only way to counteract that one-upmanship is to confront it directly to see how deep that understanding goes.  Asking why is a great way to do that.  If they can’t answer that question, then you know they are not there to settle the matter, but to score points.  Resist that urge by being ready to suspend negotiations to another time.  They’re not ready to listen to you.
    3. “I’m mad, angry, upset, etc.” Instead of looking to negotiate, the other side is trying to distract you or put you off your position.  You could match their anger with yours, but that never works.  Speaking more quietly puts the shouter at odds with the entire room, and serves to alienate the shouter.  The shouter is looking for allies or a retreat from your position.  Staying firm and speaking low will deny the shouter any advantage.  Besides, it makes the shouter seem all the more unreasonable.
    4. “Take it or leave it.” This is usually the best position that the side that uses this tactic is willing to go before going to war.  Here you have to be careful, because it usually represents their last stand.  You have two options now.  The first option is to be willing to walk away from the table and not blink.  The second option is to show why the take-it-or-leave-it guy will not get what they seek to accomplish.  But remember this: the take-it-or-leave-it guy’s reputation is now on the line.  If they back down now, they lose all credibility.  You may have to help the other side in saving face.
    5. “The silent treatment.” This is the same as “The person who speaks first, loses.”  North Americans hate the sound of silence.  Usually, the first person to break the silence is also the first person to offer a concession to a negotiation.  Used effectively then it’s a leveraging tool.  Just restate your position with the reason why and then stay silent.  Silence is a two-way tool.
    6. “False expertise.” If the other side is speaking in a way that comes across as an expert, then it’s time to ask questions as to their qualifications and expertise.  Challenge their knowledge and their information to force their hand.  I remember a trial where the police officer testified in court that the road was just cleared with snow prior to his arrival.  I immediately asked, “Oh, what time did that happen?”  The police officer immediately backed away from his statement, and the Justice of the Peace reminded him that he’s not to speculate in his testimony.
    7. “I need to talk with my spouse/wife/husband/partner/etc.” This is something you need to challenge right away.  Often, there is some sort of embarrassment or realization that they are in the wrong in some way.  This is a point in time to invite this other person into the negotiation process or have them explain why they were not here in the first place.  You would have to question the fact that the person you are negotiating with does not have the authority to sign a settlement agreement.
    8. “Let’s just split the difference.” This is a tried and true tactic.  There is so much guilt wrapped up in that statement.  “I moved a little, how about you move a little more?  It’s in the middle of our two offers, but that’s fair.”  Is it really fair?  There is nothing in a negotiation that says a number that is 50 percent of the difference between two other numbers is somehow fair.  What if the fair number is significantly higher than that 50 percent mark?  As long as you can justify a larger number, you can say no to the ‘split the difference’ tactic.
  4. Your two biggest strengths in a negotiation is to recognize that the other side may have interests that can be addressed as well as well as your own, and that you come to the settlement conference prepared. The settlement conference is scheduled for 45 minute intervals, but the deputy judge will make time for you all day if a matter can be resolved in that room.  Two cases come to mind: one was early in my career that my client was a homeowner and the defendant while the plaintiff was a contractor that did a kitchen renovation; the other case was a hydraulics company and a machine manufacturer.

 

In the homeowner/contractor case, my client owed money on a botched kitchen renovation and was being sued by the contractor.  I found out that the contractor was not licensed in the City of Mississauga.  I found case law that said that if a general contractor works in a jurisdiction that requires them to be licensed and wasn’t, then the contract is null and void.  That means that my client would not owe any money anymore.  The contractor complained that my client was holding his tools hostage.  Not true, but, “Whatever.”  So, I told my client to bring the tools to the settlement conference.  At the settlement conference I presented the case law to him and stated our position:  The deposit placed by my client will be considered forfeit and was willing to write it off in exchange for the contractor to give up on his claim.  Their concerns about the tools were negated after I told them that it was in the court parking lot.  It took about two or three hours of negotiating, but my client got exactly what he wanted, no lawsuit and the return of tools to the contractor.

 

In the hydraulics company and the machine manufacturer, I represented the hydraulics company.  My clients were owed about $15,000.00 for parts and labour while the machine manufacturer refused to pay.  I remember walking into the settlement conference with the lawyer for the manufacturer sitting across from me.  I briefly stated our case and they stated theirs, going on about how bad the parts were, and so on.  The deputy judge was about to recommend the matter to go to trial.  Then I spoke.  I remember how shocked and stunned they were when I said to the deputy judge, “That’s all well and good, however, I have instructions from my client to negotiate a settlement.”  The lawyer was taken aback.  He turned to his clients and asked, “Do you want to settle?”  You mean they came to a settlement conference and didn’t have a settlement strategy in mind?  I then put down in front of the lawyer a draft settlement agreement.  “I’m not prepared to negotiate at this time,” the lawyer said, “But there is a set of technical drawings that are owed to my client, and I bet you dollars to donuts that’s not there.”  Then I read the clause that covered the technical drawings.  “Well, I’ll take a look at the agreement,” the lawyer said.

 

Those two stories show how being prepared can make your settlement negotiations that much stronger.  They also lose steam when you are ready to address their concerns as well.

 

If a negotiated settlement is not reached, then the court might make recommendations to the parties such as the clarification and the simplification of issues; the elimination of claims or defences that appear to be unsupported; and, the admission of facts or documents without further proof.

 

The judge at settlement conference may make any number of orders under Rule 13.05(1) that a court of record could make.  Some of these orders could include:

  1. Adding or deleting parties;
  2. Consolidating actions;
  3. Staying or dismissing an action with written reasons;
  4. Amending or striking out a claim or defence under Rule 12.02(1);
  5. Directing the production of documents;
  6. Changing the place of trial under Rule 6.01;
  7. Directing an additional settlement conference under Rule 13.02(3); and
  8. Ordering costs.

 

It is possible to get a final judgment at a settlement conference once and for all if the following conditions are met:

  1. The amount in dispute is under the appealable limit of the Small Claims Court, which is $2,500.00.
  2. One of the parties files a Consent Form 13B that is signed by all of the parties in the action with the court.
  3. The Consent is filed before the settlement conference date.
  4. The Consent must specifically state that all of the parties want a final judgment at the settlement conference if a negotiated settlement is not reached.

 

If costs are ordered under Rule 13.10, then it shall not exceed $100 unless the court orders otherwise due to special circumstances.  This $100 does not include disbursements.

 

Last, but not least, if the settlement conference is heard by a deputy judge, then they cannot preside at a subsequent trial of the action.

 

That wraps up this podcast.  Your comments and questions are always invited.  There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides.  There you will find the Guide to Motions and Clerk’s Orders.

 

Thank you for listening and I hope you join me again soon.

Episode 5: Default Judgment

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SHOW NOTES:

Welcome everyone to the Ontario Small Claims Court Podcast.  I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

 

In this podcast we are going to talk about bringing a Default Judgment in the Small Claims Court.

 

There are a few ways in which a default judgment can occur.  One way is that the defendant fails to file a defence.  Another way is that the defendant files a defence, but admits to all of debt.  A third way is that a trial is set, but the defendant fails to appear at court on the trial date.

 

The rules surrounding default judgment are mostly contained within Rule 11 of the Rules of the Small Claims Court.  There are a number of pre-conditions that must be satisfied before a default judgment is issued.

 

First and foremost, there must have been a plaintiff’s claim or a defendant’s claim filed and served according to the rules.  This is why Affidavits of Service are so important.  Secondly, the defendant must have not filed a defence within the prescribed time period.  That’s a full 20 days from the day the defendant was served with your claim.

 

Once those two conditions have been satisfied, you can then ask the clerk to note the defendant in default.  This is Form 9B Request to Clerk.  At the top of the form, you fill out which Small Claims Court the matter is in along with its address and the court file number assigned to that case.  You then type in the name of the Plaintiff or Plaintiffs on the appropriate line, and type the name of the Defendant or Defendants on that line.  You will then identify yourself as the person making the request.  You will then make your mark on the first checkbox to note which defendants are to be noted in default for failing to file a defence.  At the end, add the date and sign your name.

 

When you file your completed form with the Clerk of the Small Claims Court, you have now removed that defendant from having any more say in your case.  If you only have one defendant, then you can request an assessment of damages from the clerk.  If that defendant is a person under disability, then you will need to bring a motion to the court for permission to note the defendant in default.

 

What do I mean by disability?  In the Small Claims Court, a person under disability is a minor under 18 years of age, someone who is mentally incapable by the definitions of the Substitute Decisions Act, 1992, or an absentee within the meaning of the Absentees Act.

 

In the Substitute Decisions Act, 1992, the person under disability is a person who is incapable of managing property or unable to appreciate the consequences of a decision or lack of decision about their property.  They are also a person which cannot look after themselves concerning their health care, nutrition, shelter, clothing, hygiene, or safety or is unable to appreciate the consequences of a decision or lack of decision about their personal care.

 

In the Absentees Act, an absentee is a person who normally a resident in Ontario who has disappeared, with their whereabouts unknown, and no knowledge that the absentee person is living or dead.

 

When you have a defendant noted in default, you can then request the clerk to sign a default judgment.  The form you use for this request is Form 11B.  This form looks just like the Plaintiff’s Claim on the first page, so you fill in the blanks just like the first time.  Don’t forget to add the court file number at the top right corner of the form.  On page two, you will only check one box.  Let’s assume that the defendant didn’t file a defence.

 

You now list which defendants, if there is more than one defendant, are to be noted in default.  If you have more than three defendants and they are all noted in default, then you will check the box for additional defendants and on a separate page, list them in the same format as on page two of the Default Judgment form.

 

The next section is the calculation of the default judgment.  Section A is the amount you were suing for.  Section B is pre-judgment interest.  You will have to get this information in one of two ways.  If you are using the Courts of Justice Act set rates, the pre-judgment and post-judgment interest rate changes quarterly.  For up to date information you can Google “pre-judgment interest Ontario” and click on the appropriate link.  Interest in accordance with the Courts of Justice Act has to have been claimed in the Plaintiff’s Claim or the Defendant’s Claim.  If that section is blank, the clerk will probably not sign the document with that information.  Interest is calculated as simple interest if using the Courts of Justice Act rates.

 

If you have a contract in which you describe an interest rate other than the Courts of Justice Act, you can claim this interest rate here.  Let’s say that on your invoice, you have indicated the interest rate of 18 percent per year.  If it forms part of a contract, then the 18 percent interest rate applies.

 

Within Section B, there are two date sections.  The court wants to break out the interest, because this document will be served by the court clerk on all parties to the claim.  The first date section can be either the date of the cause of action (in other words, when you knew you had a claim and you stated it in the Plaintiff’s Claim or Defendant’s Claim), or the date when the claim was filed.  The second date section is the day you bring the Default Judgment form to the court clerk.

 

Once the interest has been calculated, Section C is where you add your costs.  You might want to break this down on a separate piece of paper along with copies of receipts.  The clerk only has the authority to authorize costs that are part of the Administration of Justice Act or the Rules of the Small Claims Court.  Many of these costs are capped by law.  Under the Administration of Justice Act, you have to look to Ontario Regulation 432/93 which are the Small Claims Court—Fees and Allowances.  In the Rules of the Small Claims Court, you will have to look under Rule 19.

Here are a few numbers to consider for costs under default judgment:

  1. You can claim the filing fee for your plaintiff’s claim or defendant’s claim;
  2. You can claim the cost of effecting service of your plaintiff’s or Defendant’s Claim. This cost is capped at $60 maximum.
  3. You can claim the cost of preparing the plaintiff’s or Defendant’s Claim that includes photocopying, binding, the cost of obtaining documents. This cost is capped at $100 maximum.
  4. You can claim the cost of filing the Default Judgment. This is fixed at $35, because that is what you pay for filing the default judgment.

 

Once that is complete, check your math.

 

You will end up going over this form again with the clerk.  Show your work.  When the clerk of the court is satisfied, you can then pay your $35 fee and make sure you leave enough copies with the clerk for each party whether they filed a defence or not.  This helps out the clerk because it is they who serve all of the parties.

 

Rule 11.02 states that the clerk can sign a default judgment if it is for a debt or liquidated demand in money, including interest if claimed.

 

So, what does liquidated mean here?  Liquidated claims are claims for a sum of money that is the result of a contract and does not need the court to assess how much the plaintiff is to receive.

 

To illustrate the point further, here are examples of a liquidated claim:

  1. The plaintiff is someone who provides house painting services. The Defendant is the customer.  A verbal agreement is made for $2,000.00 for the plaintiff to paint the defendant’s house.  The house is painted.  The defendant refuses to pay.  This is a liquidated claim because the price was agreed to before work started.
  2. The plaintiff is a commercial landlord. The Defendant is the owner of a retail company that wants to open a pop-up store in the Plaintiff’s vacant space.  The commercial landlord and the retail tenant make a verbal agreement to rent the space for $2,000.00 a week for six months.  There is no lease or other written agreement.  The first three weeks the tenant payments are fine, but the retail tenant stops paying for weeks four to six.  The retail tenant moves out at the beginning of week seven.  This is a liquidated claim because the math calculation is obvious, three times $2,000.00.
  3. The plaintiff is seller of solar panels. The defendant is a customer that buys the solar panels.  The defendant pays for the panels by cheque for $2,000.00.  When the plaintiff goes to cash the cheque, it is returned NSF.  The Plaintiff sues for the amount of the cheque and the NSF charges incurred.  In their plaintiff’s claim, a copy of the dishonoured cheque and the NSF charge statement is included.  This is a liquidated claim because the amount is fixed and can be verified by the attached copy of the charges.

 

Here are examples of unliquidated claims:

  1. The plaintiff has a car that needs a repair. The plaintiff takes it to the defendant, a car mechanic.  The car is repaired for $2,000.00.  When the plaintiff gets the car back, the same problem is occurring again.  The plaintiff makes a claim for $2,000.00 stating that the repairs were faulty.  This is an unliquidated claim because the court has to figure out the true value of the repair, and the plaintiff might not get all of their money back, even if successful.
  2. The plaintiff buys a house from the defendant. All of the inspections were done.  The plaintiff encounters a problem with their septic system, and finds out that the entire septic bed has to be redone and that the condition of the septic bed existed before closing of the sale.  The Plaintiff repairs the septic bed for $2,000.00.  This is an unliquidated claim because the judge has to make a few decisions, one of them being if the cost of the repair was reasonable, and secondly, whether the cost of the repair represents a legal concept known as “betterment”.  “Betterment,” to put it briefly, is a defendant should only have to pay what the value of the septic bed was before closing as it was figured into the value of the land in total.  The repair has a new life expectancy that the plaintiff will have the benefit of.
  3. The plaintiff is a homeowner who wants to renovate the kitchen of their house. The defendant is a renovation contractor.  The plaintiff puts down a fifty per cent deposit of $2,000.00 to start the project.  A contract is drawn up stating what the agreed work would be on the kitchen renovation.  The renovation is completed, but the plaintiff isn’t satisfied with the work done as it wasn’t completed exactly to the terms stated in the contract.  The plaintiff sues for the return of the deposit.  This is an unliquidated claim because evidence by the judge is needed to figure out what the value of the repairs made actually is.

 

Having said all of this, you can still have a default judgment on an unliquidated demand claim.

 

For this, you have two options.

 

You can either file a motion and supporting affidavit (Form 15A) and fill out Part B of the motion or file a request to clerk (Form 9B) asking for an assessment hearing.  What’s the difference? The fist one becomes a “basket motion” or a motion that does not need to be done in court because there is no other side that can be represented; the defendant no longer has standing until the default is set aside.

 

The Deputy Judge may give three kinds of orders.  The deputy judge may grant your motion and you will have a final order to take to the clerk for enforcement.  The deputy judge may ask for another affidavit seeking additional information.  Or, the deputy judge may ask you to appear in person for an assessment hearing to give oral evidence and answer any questions that the deputy judge may have before granting judgment.  The assessment hearing will proceed like a trial, with the exception that the defendant will not be there.

 

If you are scheduled for an assessment hearing, the only thing that you need to prove is the amount of the damages.  You don’t need to prove whether or not that the defendant or defendants are liable.  That is what the Rules of the Small Claims Court say.

 

However, if it becomes an undefended trial, case law suggests that the court is not just a rubber stamp that says you win by default.  You still have to prove your case and meet the legal tests that arise from your claim.  It is then, and only then, will the court consider whether you have brought enough evidence and proof on the balance of probabilities to grant judgment in your favour.

 

In default judgments of a defendant’s claim, the judgement can only be obtained at a trial or on a motion.

 

When a default has been noted the clerk will not be able to accept a defence or take any other step in the small claims court process.  Defendants who have not been noted in default are also no longer entitled to service of documents except for the following:

  1. Service of Default Judgment;
  2. An amendment of a claim or defence;
  3. A motion after judgment; or
  4. Enforcement proceedings against a judgment debtor.

 

Even though you may have a default judgment in hand, the defendant may still have a chance to bring this back into the small claims court again.

 

Now, let me switch hats for a moment and work for the defendant for a bit.  If you are sitting with a default judgment against you, all is not lost.  You can bring a motion to the Small Claims Court to set aside the default judgment.  But you can’t delay.  In your affidavit in support of the motion, you will have to state when default judgment came into your knowledge, and that you have a valid defence and a reasonable explanation why the defence wasn’t filed.  In addition to the supporting affidavit, you will need to draft a defence on Form 9A for the deputy judge on the motion for him or her to review.  These kinds of motions crop up when the Plaintiff hasn’t served the defendant properly, for example, the claim is served to an address that the defendant no longer lives at.  They also crop up when the defendant is out of town and couldn’t respond to the plaintiff within the twenty days to file a defence.

 

That wraps up this podcast.  Your comments and questions are always invited.  There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides.  There you will find the Guide to Motions and Clerk’s Orders.

 

Thank you for listening and I hope you join me again soon.

Episode 4: Motions

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Welcome everyone to the Ontario Small Claims Court Podcast. I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

In this podcast we are going to talk about bringing Motions to the Small Claims Court.

What is a Motion? This is a mini-hearing that asks the court to do something. That something usually means asking for permission from the court and, in turn, the court gives an order. Motions can be put into three general categories: one category is to fix a problem that has come up during the case; another category is to ask the court for help with the best solution for a problem; and the last category is to change an order that has already been made.

The designations of Plaintiffs and Defendants are temporarily put aside during a motion. The party who brings a motion becomes either “the moving party” or “the applicant”. The party who receives and has to answer the motion is known as the “respondent”.

Form 15A is the Notice of Motion and Supporting Affidavit. The first page is easy to fill out because you are merely copying the information that has appeared on your Plaintiff’s Claim, Defence, or Defendant’s Claim. The claim number that has already been assigned to your case is also used again here. This helps the court keep track of all documents relating to the matter.

On Page 2 of the form, at the very top there is a section that states in bold letters, “This court will hear a motion, blank, blank, blank, or as soon as possible after that time, at blank.” This part, you will have to go to either the small claims court clerk or the court trial co-ordinator to get a date and time for your motion. You have to do this before serving the Notice of Motion and before filing the motion with the court after service.

When you get the date for the hearing, you have to be aware that there are deadlines that have to be met, which means that the earliest that you can serve and file a motion would be 11 days. That’s at least seven days before the motion hearing date to serve the notice of motion and supporting affidavit, and at least 3 days before the hearing date to file proof of service along with the Notice of motion and supporting affidavit. That means that you go to the court clerk’s office, get a motion hearing date, fill out the appropriate information on Page 2, then have the supporting affidavit sworn by a Commissioner for Taking Affidavits, then you are going back to the court clerk’s office to file the motion and proof of service on pretty much all on the same day. It can be done, but it makes you look petty in the scheme of things. Therefore, I recommend that you should leave at least two weeks from the motion hearing date to give you time to serve all of the other parties that need to be served. Essentially, that’s one week. Then you have a few days grace to go to the small claims court clerk and wait around in uncomfortable furniture to file your motion and affidavits of service.

Under the date set for the motion hearing, there are a number of tick-boxes for you to consider and explain to the deputy judge what the motion is about. These tick-boxes are the most common motions heard by the Small Claims Court.

The first one is requesting the court’s permission to extend time or to shorten time. This is usually the case for serving documents such as a plaintiff’s claim or a defence when they are difficulties in serving the documents. Motions to shorten time are usually found in motions and applications under the Repair and Storage Liens Act. There is usually some emergency where if the Court doesn’t get to hear the matter right away, the applicant would face some dire consequence, like losing their contents in a storage locker.

The next tick-box is a motion to set aside default judgment and noting in default. This is a Defence motion when the defendant was not served with a Plaintiff’s Claim, or received notice of claim after the date to file a defence has passed. The Plaintiff has already noted the Defendant in default and got a default judgment. In these motions, you will have to explain the circumstances why you didn’t respond to the Plaintiff’s Claim in time and show that you do have a defence. You will need to include a draft defence to show to the court what your defence would have been, had you not been found in default. This draft defence would be an exhibit in your affidavit. If you were out of the country when the Plaintiff’s Claim was served and you didn’t have notice until you returned, you would include any travel itinerary or other proof that you were out of the country at the time of service of the Plaintiff’s Claim and make them exhibits in your affidavit.

The next tick-box is essentially the same as the previous one. This occurs when a noting in default has taken place but a default judgment has not been rendered. This also happens in cases where there are cross-claims or counter-claims. Because the outcome of the Plaintiff’s Claim and Defendant’s Claim are dependent upon the same set of facts, you cannot get a default judgment in these cases, but you can note the defendants who do not respond to your claim in default. So, what does this really mean? I mean, once the facts are sorted out by the deputy judge, only then can there be an assessment of all the defendants as to their liability, if there is any liability to be had.

The next tick-box is permission to file a Defence. This would go in concert with the motion to extend time.

The tick-box after that is the request to set aside an order dismissing a claim as abandoned. This could happen when you don’t proceed with an action such as filing a plaintiff’s claim but not serving the claim within the six month window that you have. There could be a variety of reasons why you need to make this motion, including the fact that you are unable, for some reason to properly serve the intended defendant.

The next to last tick-box is a motion to request to terminate a garnishment or withdraw a writ. This is primarily a judgment debtor’s motion meant to assist these people from creditors claiming more money than what is owed in a judgment. When a judgment is satisfied, the creditor is usually tasked with the job of notifying the court of that new development. Sometimes, the creditor doesn’t do that, or forgets to do it because some garnishments and writs last for six years. The withdrawal of writs scenario can happen when a judgment creditor, puts a Writ of Seizure and Sale on Land on the judgment debtor’s house. The judgment debtor pays off the judgment, but when they go to sell the house, the writ appears in the title search and everyone is going to ask a lot of embarrassing questions about why that is. So, as part of your motion, your supporting affidavit will have information that you have paid the judgment.

The last box is marked “Other.” There are many other kinds of motions that could be had in Small Claims Court.

One is called substituted service. This is a motion under Rule 8.04 and is granted only in exceptional cases. You will also have to consider whether you need to extend time for either service or automatic dismissal. These types of motions have to be supported by affidavits describing what methods of service that you have tried, but were unable to carry out. You will have to satisfy the motion judge that the other types of service are impractical for your situation. Within your motion, you will need to suggest a remedy. For example, you could ask to serve a close relative of the party who has regular contact with them. You could ask to serve the party in Facebook, or by e-mail, if you know that they would receive it despite all of your other attempts to serve the documents in question. If you simply don’t know where they are any more, then you will have to do some more digging, like hiring a private investigator or a skip tracer. Otherwise, you might have to consider abandoning your claim.

Another type of motion to bring in Small Claims Court is a motion to amend a claim or a defence less than 30 days before trial. This is a motion under Rule 12.01. You will have to have a good reason for doing so in your supporting affidavit.

A third type of motion is a motion to strike or documents or parts of documents under Rule 12.02. There are specific reasons for which this motion can be made. It must be because there is no reasonable cause of action or defence. Another reason could be that the document may delay or make it difficult to have a fair trial. The third reason may be that the document or part of the document is inflammatory, a waste of time, a nuisance, or an abuse of the court’s process. “A waste of time” includes a conclusion that there is no reasonable hope of success at trial. Now, the court could order that the proceeding is stayed (meaning stopped in its tracks) pending an amendment of the document, claim, or defence.

A fourth type of motion is a motion for judgment in the terms of an accepted offer when the party fails to comply with it. This happens when a party reneges on a settlement deal. This becomes a motion under Rule 14.06. You can come to the court and ask that the court issue a judgment in the terms of the accepted offer or continue the proceeding as if there have been no offer to settle. If it becomes a judgment based upon the offer, then you can go ahead and enforce that judgment through court measures such as garnishment and writs of seizure and sale of property. If the matter continues, then you will be having a trial in which you will have to prove your case or defend the action. In your affidavit, you can explain how the parties came to terms outside of court, and further explain how it all fell apart.

A fifth kind of motion is a motion for a new trial. This is a very limited kind of appeal. This motion is based upon rule 17.04. The motion must be brought within 30 days of the final order. The moving party must also show, in addition to the supporting affidavit, proof of a request that a transcript of the proceeding was ordered that has the reasons for judgment and any other portion of the proceeding that is relevant. If the transcript is available, that transcript must be served at least three days before the hearing date on all of the parties served with a notice of trial and be filed with proof of service.

There are two conditions that you must meet to get a new trial.
1. There was a math mistake in calculating damages.
2. There was evidence that was not available to you at the time of the original trial and could not have reasonably been expected to have been available at that time.
If one of those two conditions is met, then the motion judge can grant a new trial, give a judgment that ought to have been given at trial, or dismiss the motion.

A sixth kind of motion is an order directing the delivery of personal property referred to in a writ if that property cannot be found or taken. This is purely a judgment creditor’s motion. Let’s say that the property being referred to is a boat. That boat is being hidden or lost or destroyed in some way. The person who has the writ can come back to the court and say the boat is unrecoverable; can I take something else instead, like that ATV over there? This is one of those motions in where it is a good idea to already have had an examination with the judgment debtor that lists all of his assets. You would also have to take a look at the Execution Act to see what personal property is protected by the legislation.

A seventh kind of motion is strictly a judgment debtor’s motion. If the judgment debtor has two or more unsatisfied orders that are outstanding, the debtor can bring a motion to the court to consolidate those orders into one payment. This is a motion brought under rule 20.09. The debtor has to have the following in the affidavit: the names and addresses of the creditors who have an order against you; the amount owed to each creditor; the total amount of income from all sources and identify each one of them; and the debtor’s current financial obligation (like rent or a mortgage). This notice of motion must be served on all creditors at least seven days before the hearing date. If successful, the judgment debtor will be paying all creditors simultaneously, but the payments cannot be more than the garnishment limit established in the Wages Act. Consolidation orders have the additional benefit that creditors cannot enforce their judgments in any other way except for a writ for seizure and sale of land. But judgment debtors have responsibilities as well: the consolidation order will automatically terminate if the debtor fails to make a payment for 21 days. In addition, the debtor will not be able to make the same motion again for one year from the date of the termination.

So, what I have just described for you are the types of motions that one can make in the Small Claims Court. I am now going to describe three kinds of motions you cannot do. This section is kind of technical, but I want to talk about it because sometimes crafty representatives on the other side take advantage of self-represented parties, and you need to be able to recognize an inappropriate motion. This is also a reminder that this court has its own rules as to how things are done.

You can’t do a motion for summary judgment. The Ontario Court of Appeal made a ruling in 2010 in a case called Van de Vrande v. Butkowski. In their decision, the Court of Appeal said that there is no such thing as a summary judgment motion. What often happens, and with lawyers especially, is that they will try to use Rule 1.03(2). Let me read it for you:

“If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts Of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.”

What lawyers often do is try to import Rule 20 and 21 from big pants court into the Small Claims Court. The lawyers argue that there is a ‘gap in the legislation’. The Court of Appeal has said that there is no gap; it is deliberately excluded from the Rules of the Small Claims Court. You can’t make an analogy to something in one set of rules when the other set of rules doesn’t address it.

You can’t make a motion for document discovery, especially from third parties. Discovery is the provision of documents that you intend to rely upon in evidence during trial. There are limited avenues in which these documents are exchanged. In Small Claims Court, most documents are provided for in the Plaintiff’s Claim, the Defence, and in the Defendant’s Claim. Then there is Rule 13.03(2). All parties, at least 14 days before the date of the settlement conference, must provide a copy of any document, including expert reports not attached to the party’s claim or defence, and a copy of a witness list with names, addresses, and contact information for each witness.

There is one last opportunity to share documents. That’s Rule 13.05. A judge at a settlement conference can order the production of documents between the parties. That’s it. It is the only exception to the general rule on the reliance of evidence. These settlement conference orders come from the point of view of relevance, meaning that in order to prove your case, these documents must be produced. This usually happens with cases that need expert reports or opinions.

There are times when important documents are held by third parties. But in Small Claims Court, there is no jurisdiction for compelling third parties to provide information by way of motion. As always, there is one exception. You will have to ask for a Summons to a Witness from the Small Claims Court Clerk. You will have to know the name of the witness you intend to call and have ready for payment in advance witness fees. Witness fees are $6 per day and 30 cents per kilometer travel allowance from the witness’ home to court. If you live in Northern Ontario, that travel allowance goes up to 30.5 cents per kilometer. If you are calling a lawyer, doctor, veterinarian, or engineer, the witness fee is $15 per day.

Summonses must be personally served and there is no other method allowed. In the summons itself, there is a section in which you can describe what documents are to be brought by the witness that they have in their possession and control. You will have to be specific. Those documents will only appear on the trial date. If the witness fails to appear, you can have the court make the witness attend court. If they fail to bring the documents requested, you can make the witness bring them the next time.

Lastly, you cannot make a motion for interim possession. Welcome to another grey area of the rules of the Small Claims Court. The Small Claims Court has jurisdiction for claims up to $25,000. The Small Claims Court also has jurisdiction to return property valued up to $25,000. This motion sometimes comes up without starting a plaintiff’s claim. You do have to start an action first.

Some judges have looked at these motions and said that you can’t get a writ of delivery until you have a final judgment. Other judges have looked at section 104 of the Courts of Justice Act and “by analogy,” rule 44 of the Rules of Civil Procedure. There is no clarity from the court for this kind of motion. However, what if the Defendant was going to do something, like destroy your property before you get a decision to get it back? You might be able to get an ex parte order. This is definitely one of those “talk to your local paralegal or lawyer” moments; who better can give you advice to your specific set of facts, right?

So, we have talked about all kinds of motions and rules that these motions relate to. You now need a supporting affidavit. The supporting affidavit is kind of like a snapshot of the facts that led up to the moment you decided you need help with an issue. There is a formal style to writing an affidavit for yourself. The forms provided for the Small Claims Court help you with some of these elements, like the introductory statement. That blank space after the preamble is the scary part.

Here are the rules of thumb to writing a decent affidavit:

1. Your first paragraph should have an identification and personal knowledge statement. The judge wants to know who is giving the affidavit, how do you fit in the scheme of things (like, are you the plaintiff or defendant), and how you got this information.
2. Write in the first person subjective. In other words, try to start each fact with the pronoun “I”. “I did this” or “I did that”.
3. Number each paragraph.
4. Only have one fact per paragraph.
5. Stay in chronological order. Be as specific as possible. If it happened on September 12, 2015, state that. If it was within a few days either side of September 12, 2015, but you can’t remember the exact date, use “On or about September 12, 2015, blah, blah, blah...” If you can’t remember the specific date but you can remember the month, use “In the month of September, 2015, yadda, yadda, yadda...”
6. Do not give an opinion in an affidavit. It has no weight.
7. Keep your paragraphs short.
8. If you have information that came from another source, like your friend, your statement should be specific as to whom that person is, and that their statement to you is something that you believe to be true. If you have a lot of these paragraphs, then you should consider whether that person should be making their own affidavit.
9. Sometimes you see as a last paragraph, “I swear/affirm this affidavit in support of this motion and for no other or improper purpose.” This is optional.
10. If you have more than one page when writing your affidavit, number your pages.
11. Type your affidavit, if possible.
12. If you want to attach documents to your affidavit, then those documents should be described in the body of the affidavit and describe them as Exhibit A, B, C, and so on.
13. Tell the truth. Swearing or affirming a false affidavit can be punishable under the Criminal Code of Canada.

So, you have checked the appropriate box or stated what kind of motion you are looking for and have written your supporting affidavit. This next step is very important.

DO NOT SIGN THE AFFIDAVIT.

You are going to have to be patient and wait until you go to the courthouse or to a lawyer or paralegal to give the oath or affirmation to you. These Commissioners of Affidavits will ask you either: “Do you swear that the contents of this affidavit as subscribed by you are true, so help you God?” or “Do you solemnly affirm and declare that the contents of this affidavit as subscribed by you are true?” After giving your answer, and I’m assuming that this will be a “yes”, you will sign in the appropriate place and the Commissioner will sign and print their name in their appropriate place.

The original will eventually be filed with the court and the copies served upon all the parties.

Now, earlier in this podcast, I have described motions with notice, meaning notice served at least 7 days before the hearing date. But, I didn’t say how to serve the motion on notice. Well, you have a lot of options. Personal service is one. Alternative to personal service is another. You can serve the notice by mail; just remember to add five days to the minimum 7 days before the hearing date. You can also serve the motion notice by courier. Again, adjust your timing accordingly, because service is determined by when the receiving party signs for the envelope. Lastly, if they have a fax number, then you can serve the party by fax.

There are situations where you don’t need to notify the other side. Motions without notice, sometimes called ex parte motions, these are usually reserved for parties noted in default. They no longer have standing with the court, so you can go ahead with your motion without telling the other side.

This is when you can fill out Section B of Form 15A. This section is self-evident in how to fill it out. There are some pre-conditions that must be followed. First, the request for an assessment of damages must be for a liquidated claim, meaning the amount can be easily calculated. They owe you $1,000.00 because you have an invoice for that amount for the services you have done, or they owe you $1,000.00 because you have a repair bill that you’ve paid for. Second, the defendant must have already been found in default for not filing a defence. Third, if there is more than one defendant, all of the defendants must be in default for not filing a defence. If one of them has filed a defence, the default judgment can only happen at the end of the trial, once there has been a determination of liability. Not one moment before.

The Deputy Judge may give three kinds of orders. The deputy judge may grant your motion and you will have a final order to take to the clerk for enforcement. The deputy judge may ask for another affidavit seeking additional information. Or, the deputy judge may ask you to appear in person for an assessment hearing to give oral evidence and answer any questions that the deputy judge may have before granting judgment.

Sometimes there are emergencies that crop up, such as a writ that is still attached to a property that hasn’t been withdrawn by the other party after you’ve satisfied the judgment, and now you can’t find the other party that issued the writ. Let’s look at this second example.

In your motion, you would have to ask the court to dispense with service of the motion in addition to the request to withdraw the writ. This puts the deputy judge on notice that they will have to decide first if the situation warrants a motion without notice. If they say yes, then you can talk about the main part of your motion, which is to remove the writ of seizure and sale of land. If your ex parte motion is granted, it is then up to you to serve the motion, the supporting affidavit, and the Order itself within 5 days after the order is signed. The method of service can be by personal service, alternative to personal service, mail, courier, or by fax.

However, the party who is affected by the Order has up to thirty days to bring a motion to set aside the Order or to vary the Order. So, the motion may not end on the day you get the ex parte order signed.

Let’s say that you are served with a motion and you are not available on that date to speak to it. Can you get it adjourned? Yes, you can, but only on consent. The court may order it, but you will need to have an agent, a paralegal or a lawyer present to argue for an adjournment along with a good reason why. Otherwise, a motion is not to be adjourned for any reason. If you do get an adjournment, the party seeking the adjournment might get dinged with costs for the delay. It can happen.

The court is also pretty strict about withdrawing a motion. For a motion to be withdrawn, you have to either have the written consent of the parties, or the permission of the court.

At the end of the motion, the successful party may ask the courts for costs. These costs are limited from zero to $100.00. That’s it. Anything more, then the motion had to be so extraordinary to provoke addition costs above that $100.00 benchmark. Disbursements, however, can be added on, like photocopying and filing fees. Don’t forget that the privilege of bringing a motion to small claims court costs forty dollars.

That wraps up this podcast. Your comments and questions are always invited. There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides. There you will find the Guide to Motions and Clerk’s Orders.

Thank you for listening and I hope you join me again soon.

Episode 3: Service of Documents

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Twitter PicEPISODE RESOURCES: SMALL CLAIMS COURT GUIDES

SHOW NOTES:

Welcome everyone to the Ontario Small Claims Court Podcast. I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.

In this podcast we are going to talk about the different kinds of service of documents.

If you are looking this up in the Rules of the Small Claims Court, Rule 8 covers every situation for the service of documents with the exception of motions. Service of Motions is covered under Rule 15.

For initiating documents that start a process, like a claim against a party and beginning an enforcement of a judgment, that requires personal service or alternative to personal service.

Let’s talk about personal service. Personal service is hiring someone known as a process server to take your document to the person you have named, and presenting that document “in person.” That person, after service of the document, swears to an Affidavit of Service that they personally served the document named in the affidavit to a specific person at a specific address. You can serve a document personally yourself if you want to take time out of your day to do so, or are willing to go back two or three times, sometimes more to see it through. But don’t do personal service yourself if you think that there may be a possibility that your personal safety may be at risk.

When it comes to serving a Plaintiff’s Claim you have six months from the date that you filed the claim to serve all of the parties you named as defendants to the claim.

Why so long? Let’s face it. Sometimes people go out of their way to avoid service. That’s just a fact of life. Sometimes they even leave the country. I talk about fixing the problems that you might face later.

Okay back to personal service. On an individual to individual basis, personal service is pretty straight forward.

If it is personal service on a municipality, then you can leave a copy of the document with the chair, mayor, warden, or reeve of the municipality, the clerk of the municipality, or the lawyer for the municipality.

If you are going to do personal service on a corporation, then you can leave the document with an officer, director or another person authorized to act on behalf of the corporation or on a person at any place of business of the corporation who appears to be in control or management of the place of business.

If you must have personal service on a Board or Commission, you may leave a copy of the document with a member or officer of the Board or Commission.

If you are personally serving the Federal Government, then you are naming Her Majesty the Queen in Right of Canada. Personal service will have to be on the Deputy Attorney General of Canada in Ottawa, or the Chief Executive Officer of the federal agency that is directly responsible. You can also serve the Director of the Toronto Regional Office of the Department of Justice. But 99% of the time, personal service of documents goes to an agent of the Crown with the authority to accept documents. Contact the agency or the Department of Justice for further information. It’s not as if that they are going anywhere anytime soon.

If you are personally serving the Ontario Government, then you are naming Her Majesty the Queen in Right of Ontario. Personal service will have to be on a solicitor in the Crown Law Office (Civil Law) of the Ministry of the Attorney General. Again, contact the Ministry of the Attorney General for Ontario for further information.

You can still sue a person who is considered to be an Absentee. An Absentee is a person who normally lives and resides in Ontario has disappeared and is now missing. Under the Absentees Act, a committee is formed to manage the estate of the absentee to find and locate the missing person and to determine if they are living or dead. If there is no committee, this function is taken over by the Ontario Public Guardian and Trustee. If you are going to sue someone in Small Claims Court that is an Absentee, you can personally serve it on the committee or on the Ontario Public Guardian and Trustee, whoever has stewardship of the estate.

If you are serving the claim on a minor, meaning a person under 18 years of age, you can personally serve the minor AND the parent or guardian of the minor you are suing.

If there is good reason to believe that the person that you are serving is a mentally incapable person, this will be tricky. It depends upon what measures are in place to govern the affairs of the mentally incapable person.

The first scenario is when the mentally incompetent person is governed by a guardian or person operating under a Power of Attorney for personal care with the authority to act in the Small Claims Court. In this instance, you can personally serve the guardian or attorney. Remember in this scenario an attorney does not mean a lawyer. It means some who has the power of attorney to act for the mentally incompetent person and that can mean almost anyone.

The second scenario is when the mentally incompetent person does not have a guardian or a person operating under a Power of Attorney for personal care with authority to act in a proceeding, but does have a person acting under a power of attorney with authority to act in a proceeding. Okay, it does sound complicated. That’s because there can be more than one kind of attorney. Again attorney does not mean lawyer. The difference here is about what powers the attorney has. In this case, the attorney can make decisions about the court case, but cannot make decisions on the incompetent’s personal care. So, if you are personally serving the mentally incompetent person, then you can serve the incompetent AND the attorney with authority to act in a proceeding.

The third scenario is when the mentally incompetent person does not have an attorney or guardian, and is governed by the Ontario Public Guardian and Trustee. In terms of personal service, you have to serve both the Public Guardian and Trustee AND the mentally incompetent person.

Hopefully, you will never have to serve a mentally incompetent person.

Onwards, to personal service on a partnership. When serving a partnership, you have two choices. You can serve the document on one or more of the partners. The other choice is to serve the document on a person in a place of business of the partnership that appears to be in control or management of the place of business.

If you are serving a Sole Proprietorship, you can leave it with the sole proprietor, or on a person in a place of business of the proprietorship that appears to be in control or management of the place of business.

Now the Rules of the Small Claims Court recognize that personal service does have its problems, and so, the rules allow for ‘alternatives to personal service.’

Only certain documents can be served using an alternative to personal service. In General, they are Plaintiff’s Claims and Defendant’s Claims.

One alternative is on the Defendant’s place of residence. You leave a copy of the document in a sealed envelope addressed to your Defendant and you leave it with anyone who appears to be an adult member of the same household. When that is done, you must serve the same document again to the same person, this time by mailing it or sending it by courier either on the same day or on the following day. So, in this alternative, you are serving two copies of the document two different ways and counts as one service.

An alternative service on the corporation if the head office or principal place of business is in Ontario, or if the company is based outside of Ontario, the attorney for service in Ontario is as follows:
• You either mail or send by courier a copy of the document to the corporation’s address, or the address to the attorney for service in Ontario; AND
• You either mail or send by courier a copy of the document to each director of the corporation as recorded with the Ministry of Government Services, at the director’s address recorded with the ministry.
Again, in this alternative, you are serving at least two copies of the document to both the company itself and the director at their home address or address for service. So what happens if there are five directors in the company? Then, using this alternative to personal service you are serving one copy on the company itself and five more copies, one to each director, at each address that is listed for the director as the address for service.

When you are using either of these two methods of service, especially by mail, service is considered effective depends on whether you serve the document by mail or by courier. If you served the document by mail, the effective date of service is five days after the document was mailed. If it was served by courier, the effective date of service is when the courier verifies that the document was delivered. That’s the date when the defendant signs for the document and appears in your confirmation. Why is this important? It’s because that is the date that the clerk of the court uses to calculate the 20 days for filing the Defence. Therefore, if you are considering a request to the court clerk to note a Defendant in default, and you served the defendant by the alternative to personal service by mail, then you have to add five days to the twenty that’s allowed for the defence to be served and filed.

Another alternative to personal service is by service on a party that is represented by a lawyer or a paralegal. You can serve it on the lawyer or paralegal themselves or their employee. The lawyer, paralegal or employee will have to sign the back of the copy of the document that you will attach to your affidavit of service and date it. That date becomes the effective date of service. The lawyer or paralegal that accepts the document is considered to have the client’s authority to accept service.

Lastly, when you are serving a Plaintiff’s Claim or a Defendant’s Claim, you can serve these documents by registered mail or by courier as an alternative to personal service. The address must be the defendant’s place of residence. Date of effective service is when the defendant signs for the document. A delivery confirmation notice will have to be attached to your affidavit of service and it becomes proof of delivery.

If you are having problems trying to serve someone personally or by alternative to personal service, you will have to bring a motion to the Small Claims Court to ask for permission to use substituted service. You will have to fill out Form 15A, a Notice of Motion and swear to an affidavit that sets out the following:
• The dates, the addresses for service, and the effective dates of such service of all of your attempts to serve the defendant
• That personal service and alternative to personal service is or has become impractical
• That you propose a method of service that you are reasonably confident that the recipient of such notice will bring the next process or claim to their attention to the person that you are trying to serve

Now, this substituted service can happen in a number of ways. You could ask for service by e-mail or Facebook. Another way is to serve a relative of the recipient. Or you could ask the court that you can place the document on their front door. You could also ask the court permission to put an ad in the newspaper.

You can’t ask for substituted service if the only reason is that you don’t know where the defendant lives or carries on business. You have to show that you have done some investigative work to find them. At this point, you are walking into the realm of skip tracers and private investigators. And, of course, spending more money. Given the size of your claim, you have to seriously consider whether that it is better to abandon suing them versus the added costs to locating the person you are trying to serve.

Only in extreme circumstances should you ask for the court to dispense with service of a document. You will have to show that in the interests of justice, it is necessary to dispense with service.

Now, there are other methods of service for documents that are not initiating documents, or documents that are exchanged when claim or defence has already been filed with the court. Service of these documents is less onerous on the person serving them. So, there are three kinds of service that is allowed for these other documents: service by mail, service by courier, and service by fax.

Service by mail can be sent by either regular mail or registered mail to the address of the individual or the individual’s representative that is known to the sender. If the document is being sent by the clerk of the small claims court, the clerk will send it to the address that is on file with the court. Don’t forget that the clerks have to follow the rules for serving documents as well, and they never have to do personal service! If you are serving a document by mail that is not a Plaintiff’s Claim or a Defendant’s Claim, then the date of effective service is five days from the date of mailing, regardless if it was sent by regular mail or by registered mail. So, remember, Plaintiff’s Claims and Defendant’s Claims are the only documents, if sent by registered mail, that the date of delivery as stated in the confirmation notice provided by Canada Post is the effective date of service.

If you are serving a document by courier, then it can be sent to the recipient to the address of the individual or their representative that is on file with the court, OR an address that is known to the sender. Again, if you are serving a document by courier that is not a Plaintiff’s Claim or a Defendant’s Claim, then the date of the effective service is five days from the date of delivery as stated in the confirmation notice provided by the courier.

Finally, if you are serving a document by fax, then it can be sent anywhere that you know the recipient will be at the material time. The date of effective service is on the day of transmission if it is sent between the hours of 8:00 am and 5:00 pm on a day that is not a holiday. If the fax is sent between the hours of 5:00 pm and 8:00 am the following day, then the effective date of service is the following day that is not a holiday. In this method of service, you have to count the pages you are sending. If the document has 16 or more pages, and that includes the cover page, you can only send that fax between 5:00 pm and 8:00 am. If you want to send it during business hours, then you will need to get consent from the other side first before you send the document. Now, I have mentioned the phrase, “...a day that is not a holiday.” What do I mean by holiday?

Holidays have their own rule in the Rules of the Small Claims Court. It is part of the definitions of Rule 1.02. The following days are considered to be holidays whenever you see this word in the Rules of the Small Claims Court:
• Any Saturday or Sunday
• New Years Day
• Family Day
• Good Friday
• Easter Monday
• Victoria Day
• Canada Day
• the summer Civic Holiday
• Labour Day
• Thanksgiving Day
• Remembrance Day
• Christmas Day
• Boxing Day
• Any special day proclaimed by the Governor General of Canada or the Lieutenant Governor of Ontario

The rule on holidays also takes into account if New Years Day, Remembrance Day, and Christmas Day fall on a Friday, Saturday or Sunday. For New Years Day and Remembrance Day, if it falls on a Saturday or Sunday, the following Monday becomes a holiday. If Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday become holidays. If Christmas Day falls on a Friday, then the following Monday becomes a holiday. In other words, if the courts are closed, then it’s a holiday.

For obvious reasons, when serving documents, addresses become very important. Therefore, accuracy of addresses is important as well. Parties to a claim must notify the court and to all other parties of any changes of address within 7 days after the change takes place. So, if you are a party to a claim, and then you move, you can’t say you didn’t get the document because of your move. Parties and the court are entitled to serve documents to the address filed with the court. It is your responsibility to make sure that your contact information remains accurate through the entire court process.

Now that doesn’t mean that if you failed to receive a document, there is no hope. These defences based on service of documents show up in motions to set aside court orders, such as default judgment, asking the court to extend time, and requests for adjournment. If you are saying that you failed to receive a document, then in your affidavit in support of your motion, you would have to show that the document did not come to your attention or that the document only came to your attention some time after when the document was deemed to be served in the affidavit of service.

As you may guess, each document has access to these rules at different times and in different situations. The last thing that you need to know is that the small claims court will require affidavits of service at certain times before the next step is completed. What do I mean by that? One example is noting a defendant in default for not filing a defence. If you are filing this Request to Clerk (Form 9B), the Clerk will not sign the request without an Affidavit of Service filed with the clerk that shows how and when you served the claim.

Sometimes, there are deadlines for filing the Affidavit of Service if there is an important process that affects a person’s rights, like the enforcement of judgments. The court must be confident that the proper steps have taken place, especially when a party fails to appear for a court date. There is a guide provided by the Ministry of the Attorney General that helps you navigate the service of documents. It is called the “Guide to Serving Documents” and it is available at your local courthouse or online at http://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/. Towards the end of that guide is a handy grid that sets out the documents being served, who serves them, how that document can be served, and the time limits for service of that particular document.

I am going to list a few here that are the more common ones that you might be serving onto parties, so this will not be a complete list. You will have to refer to the Rules of the Small Claims Court, look at the guide, or speak to a lawyer or paralegal for guidance for your particular situation.

For a Plaintiff’s Claim or a Defendant’s Claim, you can serve it by personal service, by alternative to personal service, or by substituted service, but only by permission of the court. You have six months to serve those claims.

A Notice of Garnishment or a Notice of Renewal of Garnishment: you, the judgment creditor, can serve it by personal service, alternative to personal service, by mail, or by courier on the debtor or the garnishee. A Notice of Garnishment or a Notice of Renewal of Garnishment must be served with an Affidavit for Enforcement Request when serving the Debtor. A Notice of Garnishment or a Notice of Renewal of Garnishment must be served on the Garnishee with a Garnishee Statement. You have to serve the debtor within five days of service on the garnishee.

For serving a Notice of Examination: you, the judgment creditor, can serve the Notice of Examination on the judgment debtor either by personal service or by alternative to personal service. The Notice of Examination must be served with a blank Financial Information Form. You have to serve these documents at least thirty days before the date set for the Examination Hearing and you have to file an Affidavit of Service with the court at least three days before that court date.

For serving a Notice of Motion, you, the party filing the motion, can serve the Motion notice and materials to all other parties who has filed a claim and on any defendants who has not been noted default if the motion comes before a final judgment has been rendered. If the motion is made after judgment, then you, the party filing the motion, will have to serve the motion notice and materials on all parties, including the parties noted in default. Service of the motion can be done by personal service, alternative to personal service, mail, courier, or by fax. Timing for serving a Notice of Motion again depends upon whether there has been a final judgment in the case. Before judgment, motion notices must be served at least seven days before the hearing. After judgment, documents must be filed with proof of service at least three days before the hearing.

That wraps up this podcast. Your comments and questions are always invited. There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides. There you will find the Guide to Serving Documents.

Thank you for listening and I hope you join me again soon.

Episode 2: The Defence

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Twitter PicSHOW NOTES:
* naming of parties
* considerations for corporations, limited partnerships & sole proprietors
* research the law
* writing the defence
*
* admitting to all of the claim
* admitting to part of the claim
* not admitting to any part of the claim
* do's & don'ts
*
* don't be inflammatory with your rhetoric
* do know the legal test
* do number your paragraphs
* do type your defence
* don't "boilerplate" your defence
* do be specific in your objections
* do pull out each allegation and analyze it
* do ask for what you want
* do explain how you calculated damages if the Plaintiff' Claim is wrong

* writing in the alternative
* asking for costs

* filing the defence
* time deadlines

Episode 1: Should I Sue? & Starting A Claim

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Twitter PicSHOW NOTES:

Should I sue?
* considerations before suing in small claims court
* name searches
* does the defendant have assets?
* are there secured creditors who will get all the valuable assets before you?
* how many other creditors are there?

* $25, 000.00 limit
* $2, 500.00 appeal limit
* writing off debt vs. pursuing claim
* time lines
* remedies
* when to call a paralegal
* resources to help starting a claim

 The Plaintiff's Claim

* naming parties and defendants
* considerations for corporations, limited partnerships, & sole proprietors
* include liabilities for each entity

* research the law (CanLII)
* writing the claim
* writing in paragraphs
* do's & don'ts
* don't be inflammatory with your rhetoric
* do know the legal test
* do number your paragraphs
* do type your claim
* don't put in facts that are irrelevant to your claim
* do know the 5 W's & 1 H
* do have the right number of copies
* do ask for what you want
* do explain how you calculated your damages

* writing in the alternative
* pre- & post-judgment interest and costs

* filing the claim
* time deadlines
* Defendant's Claim