Small Claims Court for the Everyday Canadian
Milena Celap, B.Sc., LL.B., and Pamela J. Larmondin, B.A., LL.B.
Self-Counsel Press (a division of ) International Self-Counsel Press Ltd. Canada USA
Contents
NOTICE TO READERS PROLEGOMEN ACKNOWLEDGMENTS 1 OVERVIEW OF SMALL CLAIMS COURT 1. What is Small Claims Court? 2. Who Are the Players? 3. How Does Small Claims Court Work? 4. How Should You Use this Book? BEFORE YOU SUE 1. Should You Sue? 2. Is Small Claims Court Suitable for Your Case? 2.1 The type of claim 2.2 The amount of the claim 3. Limitation and Notice Periods 3.1 The limitation period 3.2 The notice period 4. Parties to Sue 5. The Proper Court Office 5.1 Determining the correct territory 5.2 The case of many territories
xv xvi xvii 1 1 2 4 5 6 6 8 9 9 13 13 16 17 17 18 19 iii
2
6.
Are You a Person under Disability? 6.1 Who may be a litigation guardian? 6.2 Role of the litigation guardian 6.3 Commencing an action as a litigation guardian 6.4 Special powers of the court
20 20 20 24 24 25 27 27 28 28 29 29 29 30 33 33 34 35 35 36 39 39 40 41 42 42 43 43 43 43 46 46 48
3
PREPARING THE PLAINTIFF’S CLAIM 1. The Plaintiff ’s Claim Form and Supporting Documents 1.1 The plaintiff 1.2 The defendant 1.3 Amount of claim 1.4 Type of claim 1.5 Reasons for bringing the claim 2. Organizing Your Claim 2.1 Remedy sought 2.2 Facts in chronological order (Schedule ‘A’) 2.3 Documentary evidence (Schedule ‘B’) 2.4 Excerpts from legislation (Schedule ‘C’) 3. Issuing the Plaintiff ’s Claim 4. Serving the Plaintiff ’s Claim 5. What Happens Next? 6. Default Proceedings 6.1 Noting the defendant in default 6.2 Default judgment 6.3 Damages assessment and adjudication hearing 7. Dealing with the Defence 7.1 Defendant admits liability for a portion of the claim 7.2 Defendant admits liability for the entire claim 7.3 Defendant disputes the entire claim 8. Withdrawing the Claim 9. After Judgment THE DEFENCE AND DEFENCE-RELATED CLAIMS 1. Respond on Time 2. Are You a Person under Disability?
4
iv
Small claims court for the everyday Canadian
3.
4. 5. 6. 7.
8.
9. 10. 11. 12. 5
Reflecting on the Defence 3.1 Gathering information about the claim 3.2 Categorizing the information 3.3 Recognizing procedural problems in the plaintiff ’s claim Preparing the Defence Terms of Payment Disputing a Portion of the Claim Defence-related Claims 7.1 The plaintiff owes you (counterclaim) 7.2 Someone else is liable (third party claim) 7.3 Claiming against another defendant (crossclaim) Disputing the Entire Claim 8.1 Preparing the defence 8.2 The form and supporting documents Filing the Defence What Happens Next? Default Proceedings Setting Aside a Default Judgment
49 49 50 54 60 61 61 61 62 63 64 65 65 66 68 69 69 74 76 77 79 80 81 82 82 82 83 83 83 84 84 84 84 85
DEALING WITH CHANGES 1. Dealing with Changes to Court Documents 1.1 Amending pleadings 1.2 Amending affidavits 1.3 Supplementary affidavits 1.4 Changing other documents 2. Making Changes to Procedures 2.1 Changing the date of a proceeding 2.2 Changing the location of a trial 3. Responding to Changes 3.1 Responding to procedural changes 3.2 Responding to amend documents 3.3 Responding to motions or applications 4. Dealing with Missing Key Evidence 5. What to Do When a Witness Fails to Show Up for Trial 6. Dealing with a Request for Separate Trials
Contents
v
7. 8. 9. 10. 11. 6
Transferring to the Higher Court Transferring from the Higher Court Combining Actions Started in Different Courts Changes in Representation Address, Telephone, and Fax Changes
85 86 86 86 87 88 89 89 90 90 91 93 93 94 95 95 95 97 97 97 97 101 101 101 101 102 103 104 104 104 110 110 111 112
TRYING TO SETTLE 1. Why Settle? 2. When Should You Consider Settlement? 3. Parties under Disability 4. Evaluating Your Case 4.1 Determine your goal 4.2 Gather the facts 4.3 Gather the evidence that supports the facts 4.4 Determine the applicable law 4.5 Weigh the strengths and weaknesses of your case 4.6 Be objective 4.7 Make the decision 5. The Offer to Settle 5.1 Making the offer 5.2 Serving the offer 5.3 Withdrawing the offer 6. Responding to the Offer 6.1 Accepting the offer 6.2 Making a counter offer 6.3 Accepting the offer with conditions of payment 6.4 The manner of settlement 6.5 Drafting minutes of settlement 6.6 Drafting the offer to settle and the release 6.7 Rejecting the offer 7. When Settlement Seems Impossible THE SETTLEMENT CONFERENCE 1. The Purpose of a Settlement Conference 2. Requesting a Settlement Conference 3. Attendance at a Settlement Conference
7
vi
Small claims court for the everyday Canadian
4. 5.
6.
Preparing for the Settlement Conference Conference Procedure 5.1 Role of the parties 5.2 Role of the conference official 5.3 Orders 5.4 Costs After the Settlement Conference 6.1 If the action settles during the conference 6.2 If the action does not settle during the conference
113 115 116 116 116 117 118 118 118 119 119 119 120 122 122 122 123 123 124 127 128 132 135 136 136 139 139 140 140 143 144 144 146
8
PREPARING FOR TRIAL 1. Setting the Matter Down for Trial 2. Organizing the Case 2.1 Keep a decent filing system for your case 2.2 Update your summary of proceedings sheet as events unfold 2.3 Start preparing at least one month before trial 2.4 Create a trial binder 3. Developing a Trial Strategy 3.1 Identifying the issues 3.2 Evaluating the issues 4. Organizing Evidence 5. Preparing Witnesses 6. Summonsing Witnesses 7. Preparing Yourself as Advocate 8. Planning Your Presentation 9. Finalizing Details TRIAL PROCEDURE 1. The Day of Trial 1.1 The courtroom and its players 1.2 Before court is in session 1.3 When court is in session 2. Trial Procedure 3. Advocacy 3.1 Conduct in the courtroom
9
Contents
vii
4.
5 6 7.
8.
9. 10. 11.
3.2 Advocacy skills 3.3 Opening statements 3.4 Questioning witnesses Dealing with Witnesses 4.1 Examination-in-chief 4.2 Cross-examination 4.3 Re-examination 4.4 Examining expert witnesses Closing arguments Motions and applications during trial Evidence 7.1 Entering exhibits 7.2 Rules of evidence Dealing with Surprises 8.1 Where’s my witness? 8.2 Adjournments The Judgment Speaking to Costs Immediately after the Trial 11.1 Getting your exhibits back 11.2 Requesting a new trial
146 149 149 151 151 154 157 158 161 163 164 164 166 171 171 171 172 172 173 175 175 176 177 178 179 179 179 185 186 187 187 188 188
10
AFTER JUDGMENT 1. Enforcing a Judgment Ordering Action 2. Enforcing a Judgment Ordering Payment 3. Judgment Debtor Examinations 3.1 Arranging an examination 3.2 Preparing for the examination 3.3 Attendance and co-operation 3.4 Contempt of court 3.5 Conducting the examination 4. Garnishment 4.1 Limits of garnishment 4.2 The garnishee’s role
viii
Small claims court for the everyday Canadian
5.
6. 7. 8. 9.
10.
4.3 Requesting a garnishment hearing 4.4 Claiming funds paid into court Seizure and Sale of Personal Property 5.1 How easy is it to seize and sell property? 5.2 Initiating seizure and sale of personal property Seizure and Sale of Lands Enforcing an Order of a Board, Tribunal, Agency, or Other Court Tips for Creditors Tips for Debtors 9.1 If you are unable to pay 9.2 Consolidation orders Appealing a Judgment 10.1 Grounds for appeal 10.2 Commencing an appeal
189 189 190 190 192 193 193 194 195 195 196 196 197 197 200 200 202 204 204 205 206 206 206 207 212 213 214 215 216 217 219 221 222
11
OTHER APPEARANCES 1. Motions and Applications 1.1 Bringing a motion 1.2 Responding to a motion 1.3 Preparing for a motion 1.4 Arguing a motion 1.5 Dealing with the results of a motion 1.6 Withdrawing a motion 2. Dealing with Specific Motions 2.1 Motions relating to pleadings 2.2 Motions relating to default proceedings 2.3 Motions relating to forum or jurisdiction 2.4 Motions relating to service 2.5 Motions relating to settlement 2.6 Motions relating to orders or judgments 2.7 Motions relating to trial 2.8 Motions relating to enforcement 3. Damages Assessment Hearing or Adjudication Hearing 3.1 Preparing for an assessment hearing
Contents
ix
4. 5. 12
3.2 Appearing at an assessment hearing Judgment Debtor Examination Terms of Payment Hearing
224 224 224 227 227 229 232 234 243 252 257 261 262 262 262 263 269 270 270 291 293 293 295 295 295 296 296 296 296 297 297 297 297 298
PREPARING DOCUMENTS 1. Writing Demand Letters 2. Writing Complaint Letters 3. Writing Letters to the Court 4. Drafting Authorizations 5. Preparing the Plaintiff ’s Claim 6. Preparing the Defence 7. Preparing Defence-Related Claims 8. Preparing an Affidavit 8.1 Purpose of an affidavit 8.2 Structure of an affidavit 8.3 Creating an original affidavit 9. Preparing an Affidavit of Service 10. Preparing a Supplementary Affidavit 11. Preparing an Affidavit in Reply 12. Drafting a Notice Letter SERVING COURT DOCUMENTS 1. British Columbia 1.1 Notice of claim 1.2 Alternative methods of service 1.3 Reply 1.4 Third party notice 1.5 Service by mail 1.6 Address for service 2. Alberta 2.1 Civil claim 2.2 Reply 3. Saskatchewan 3.1 Summons 3.2 Service generally 3.3 Service outside of Saskatchewan
13
x
Small claims court for the everyday Canadian
4.
5.
6.
7.
8.
9. 10.
3.4 Service by registered or certified mail 3.5 Third party claim 3.6 Alternative methods of service 3.7 Deemed service Manitoba 4.1 Claim 4.2 Counterclaim 4.3 Bench warrant Ontario 5.1 Personal service 5.2 Alternatives to personal service 5.3 Substituted service New Brunswick 6.1 Claim 6.2 Service generally 6.3 Deemed service 6.4 Alternative methods of service Nova Scotia 7.1 Claim 7.2 Defence and counterclaim Prince Edward Island 8.1 Notice of claim 8.2 Reply 8.3 Service by mail Newfoundland Yukon 10.1 Claim 10.2 Alternative service 10.3 Reply 10.4 Third party claim 10.5 Substituted service 10.6 Service outside Yukon 10.7 Service by mail 10.8 Service by fax
298 298 299 299 299 299 299 299 300 302 303 305 306 306 306 308 309 309 309 309 309 309 310 310 310 312 312 314 314 314 314 315 315 315
Contents
xi
11.
12. 13.
Northwest Territories 11.1 Claim 11.2 Substituted service 11.3 Defence Proof of Service Failure to Receive a Court Document
315 315 315 315 316 316
APPENDICES 1 Overview of a Lawsuit 2 The Plaintiff ’s Claim 3 Default Proceedings 4 Defence and Defence-Related Claims 5 Summonsing Witnesses 6 Bringing a Motion or Application 7 Trial Procedure GLOSSARY CHECKLISTS 1 Preparing the plaintiff's claim 2 Checklist for default proceedings 3 Checklist for preparing a defence 4 Preparing for trial 5 Appropriate courtroom conduct 6 Effective advocacy skills 7 Checklist for other appearances 8 Checkist for preparing documents FIGURES 1 2 3 Where to sit in the courtroom (One plaintiff and one defendant, both self-represented) Where to sit in the courtroom (Two plaintiffs and two defendants, both represented by counsel) Order of events at trial
320 321 322 323 324 325 326 327
44 45 75 138 147 148 226 287
141 142 145
xii
Small claims court for the everyday Canadian
SAMPLES 1 Evaluating a lawsuit 2 Minutes of settlement 3 Minutes of settlement involving payment into court 4 Offer to settle and release 5 Tickler sheet 6 Developing a trial strategy 7 Trial strategies 8 Evidence needed to prove a case 9 Witness information sheet 10 Opening statements 11 Closing arguments 12 Determining costs 13 Sample questions for a judgment debtor examinator 14 Demand letters 15 Complaint letter 16 Letter requesting that court note the defendant in default 17 Letter requesting damages assessment hearing 18 Letter requesting an adjournment 19 Letter requesting scheduling of pre-trial conference 20 Letter requesting an action be set down for trial 21 Letter withdrawing a claim (Provincial Court) 22 Letter withdrawing a claim 23 Authorization for the release of medical records from a physician 24 Authorization for the release of medical records from a hospital 25 Authorization for the release of records held by an insurance company 26 Authorization for the release of records from an employer 27 Plaintiff's claim for breach of contract 28 Defence for breach of contract 29 Affidavit for a damages assessment hearing 30 Affidavit in support of a motion to dismiss an action for delay 31 Wording for affidavit of service 32 Supplementary affidavit
98 105 106 107 121 125 127 129 133 150 162 174 182 230 233 235 236 237 238 239 240 241 244 246 248 250 253 258 264 266 269 271
Contents
xiii
33 34 35
Affidavit in reply Notice letter Pleadings
272 274 275
TABLES 1 Small claims court players 2 Actions suitable for small claims court 3 Provincial monetary limits for small claims court 4 What may happen after issuing and serving a claim 5 Provincial and territorial deadlines for filing a defence 6 Reasons you may not admit liability 7 Reasons you do not agree with damages 8 Choosing territorial jurisdiction 9 What may happen after issuing and serving a defence 10 What to do when the defendant is in default 11 Rules of general discretion 12 Evaluating your case 13 Should you settle? 14 Bringing motions during trial 15 Where to appeal small claims judgment 16 Liquidated versus unliquidated damages 17 Service in Ontario 18 Proving service
3 10 12 37 48 53 54 56 70 72 78 92 96 163 198 223 301 317
xiv
Small claims court for the everyday Canadian
1
Overview of Small Claims Court
1. What Is Small Claims Court?
Small claims court is a court of equity. In other words, the court applies general principles of justice in addition to common and statute law, in the interests of fairness and impartiality. Small claims court was created to increase access to justice for the average person. Almost anyone can attend at the court without the assistance of a lawyer or law student. Sometimes, however, people are uncomfortable representing themselves and choose someone with legal training to represent them. Other times, people are quite comfortable presenting their own cases but hire a lawyer for legal advice before attending court. Small claims court rules set out how a lawsuit must proceed. These rules are different from those of other courts. Small claims court rules also differ in small ways among the provinces and territories. The rules for most provinces and territories may be found using the links to government Web sites posted on the Self-Counsel Press Web site at . You can use these as a starting point for gathering more information about small claims court. The rules deal, in part, with the following major issues:
= = =
The kind of claims that are allowed How to bring a lawsuit How to defend a lawsuit 1
= = = = =
How to settle a lawsuit without going to trial How to bring a lawsuit to trial if settlement fails How to conduct a trial How to get judgment How to collect money owed as a result of a judgment
2. Who Are the Players?
Before entering a small claims court action, you should become familiar with the people involved in the small claims court system and the overall course of a lawsuit. Table 1 outlines the various players you will encounter at small claims court, as well as their function.
B
Note: A single judge or adjudicator presides over a trial in small claims court. Jury trials are not held in small claims court.
Criminal versus civil actions
A criminal action is a court action brought by the government or state, also known as the Crown. A Crown attorney represents the state in a criminal action, which involves the prosecution of a person charged with an offence under the Criminal Code. The goal is to convict the accused if there is sufficient evidence that he or she committed the crime and to acquit the person if there is insufficient evidence that he or she committed the crime. Examples of criminal charges are assault, theft, forgery, and perjury. A civil action is a lawsuit about any matter that is not criminal. The purpose of a civil action is to correct a wrong through an award of money or an order for the defendant to do something. Examples include tort, breach of contract, and landlord and tenant actions. (Note: Not all civil actions are available in all small claims court jurisdictions. For example, in Ontario, landlord and tenant matters are handled through a tribunal. Some landlord-tenant matters can be brought to the small claims court only when the landlord-tenant relationship has been terminated. Examples of civil actions include personal injury, failure to pay rent, failure to pay for goods, failure to perform a contract, or failure to pay for goods purchased (e.g., NSF cheque). Criminal actions are dealt with not in the small claims court but in the higher court. However, civil actions arising out of criminal activity may be brought before the small claims court. Examples of such civil actions include personal injury, property damage, or trespass to property or person. As well, the criminal courts may grant restitution orders to repay for damage done through a criminal act. Restitution orders are enforceable in small claims court if they fall within its monetary jurisdiction.
2
Small claims court for the everyday Canadian
TABLE 1
SMALL CLAIMS COURT PLAYERS
PLAYER Commissioner of oaths ROLE A commissioner of oaths (or a lawyer) must be present when an affidavit is sworn. A small claims court office may have a staff member who is appointed as a commissioner of oaths. The court clerk sits in front of the judge, calls the court to order, swears or affirms witnesses, labels exhibits, keeps order in the courtroom, and otherwise assists the judge. A prothonotary is a senior clerk of the court. A court officer or court staff member works in the court office. He or she processes claims, defences, and other court documents; schedules appearances; and deals with other administrative matters. A court reporter is present at trials and motions and records the players in attendance, takes notes at or records the proceedings, and keeps transcripts. In some jurisdictions, the court reporter performs the duties of a court clerk as well. A court interpreter translates witness testimony from a foreign language into English or, in some cases, into French. The defendant is the person being sued and is also referred to as a party. The judge is the decision-maker who presides over motions, hearings, examinations, pre-trial settlement conferences, and trials. The deputy judge is a practising lawyer who performs the duties of a judge. A lawyer or agent represents a party who is either a plaintiff or defendant. An agent may be a law student, articling student, a paralegal, or any other person. Note that plaintiffs and defendants may represent themselves. The plaintiff is a person who initiates an action and is also referred to as a party or claimant. The referee is a decision-maker who may preside over pre-trial conferences, judgment debtor examinations, and hearings ordered by a judge. The referee may be a lawyer or mediator. The witness is a person who tells the story to support one or more of the parties in the lawsuit.
Court clerk
Court officer or court staff member Court reporter
Court interpreter Defendant Judge or deputy judge
Lawyer or agent
Plaintiff Referee
Witness
Overview of small claims court
3
3. How Does Small Claims Court Work?
A typical lawsuit or action in small claims court unfolds as follows: (a) A dispute arises between two or more parties relating to a civil matter.
(b) The case is suitable for the small claims court because it is within limits set by that court. (c) The plaintiff starts a lawsuit by preparing a claim in which the plaintiff explains the dispute and the events surrounding it. This claim puts the defendant on notice that he or she is now a party to a lawsuit.
(d) The defendant replies to the allegations in the claim by preparing a defence. The defendant may also file a claim against the plaintiff or any other person. This is called a defendant’s claim, counterclaim, crossclaim, or third party claim, depending on whom is being sued. (See chapter 4 for more information on the defendant’s claim.) (e) Any number of events may then occur: (i) The parties may negotiate a settlement. (ii) A party may request an order of the court by bringing a motion. (iii) The case may proceed to trial. (iv) A verdict at trial may result in an appeal or in collection procedures. This is a simplified big-picture look at the small claims court. Many other things could happen depending on the type of lawsuit and the parties involved. Other steps may become necessary, such as —
= = = = =
filling out forms and leaving them with the court, delivering documents to another party, summonsing witnesses, drafting affidavits, offers, and agreements, and swearing affidavits.
Although the rules will outline the steps you need to take, you will find some exceptions. This is because in small claims court judges have leeway in applying those rules. This judicial discretion makes the small
4
Small claims court for the everyday Canadian
claims court system more flexible than that of higher courts, allowing the judge to make a decision that is most fair for a particular case.
4. How Should You Use This Book?
Each chapter of this book focuses on one major aspect of the processes involved in the small claims court system. Numerous explanations, examples, and tips will help you through your lawsuit properly and efficiently. Be aware that procedure differs in some ways among the provinces and territories. We have highlighted these differences whenever necessary, but you may also wish to confirm procedure with your local small claims court staff. In any event, the overall principles are the same from province to province and from territory to territory. Understanding these principles will make a world of difference between a good experience and a bad experience in starting a lawsuit or defending yourself against one. Note: To the best of our knowledge, at time of publication, the small claims court rules for the Northwest Territories also apply to Nunavut. Read this book thoroughly if you have never before been involved in the small claims court process. To get the most out of the book, use the detailed table of contents and appendices to provide you with a quick reference to the particular stage of the case with which you are dealing. If you do not understand any words or phrases in this chapter, look them up in the glossary. If you need more information about the legislation for your province or territory, consult the links to legislation and law-related Web sites posted on Self-Counsel Press’s Web site at . Note: The samples used in this book use addresses which may change. Even if an example letter or other document in this book uses a court address in your province or territory, you are strongly advised to check that the address is correct before using it.
Overview of small claims court
5