This episode is really to introduce myself and give the grand overview of the series,
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?”
“Did you see me commit any Highway Traffic Act offence that would prompt you to stop me?”
“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?”
“Did the cup have any advertising on from a liquor or beer brand?”
“From outside the bus, could you see the open liquor from where you were standing?”
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?”
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.
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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.