Ontario Small Claims Court Trial Again
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Past Paul Russell, LegalMatters Staff • If you want to sue someone for money, the return of personal property or damages, valued at $35,00 or less, Ontario's Small Claims Court is the place to seek a remedy, says Toronto paralegal Joyann Oliver.
"Minor Claims Courtroom is a courtroom of disinterestedness. It tin can only honor damages. Information technology cannot order a person to do – or stop doing – something," says Oliver, co-founder of JNR Legal Services.
"Though the process is adequately straightforward, you are notwithstanding dealing with the constabulary, and so that's why you stand a much ameliorate chance of success if you have a paralegal build your case," she tells LegalMattersCanada.ca.
6 tips
While courts are temporarily airtight due to COVID-nineteen, she offers these 6 tips on how to launch a claim one time the lockdown ends.
one. Know the terminology
"When it comes to whatsoever legal action, the plaintiff is the person who commences the proceedings, and the accused is the person who responds," Oliver says. "Both can be individuals, a number of individuals, a corporation or a partnership."
2. Write a demand letter
Before you start a claim, create a demand letter, she says, explaining this gives the parties an opportunity to resolve the matter before even going to court.
three. File and serve a plaintiff's merits
A plaintiff's claim must give a concise and clear summary of the events that took place and the reasons y'all recall you lot are entitled to money or property. It and then has to exist served on the defendant, Oliver says, either by courier, personal delivery or by leaving it with a legal representative to handle.
'Cost-efficient'
"I highly recommend plaintiffs recall about how the claim is to be delivered because if it is improperly served that volition delay the court process," she says. "At JNR, nosotros use process servers (someone who delivers legal documents to those involved in a court case) because nosotros believe it is more toll-effective for the client and guarantees the defendant has been served."
If the claim is sent past mail or courier, Oliver explains the defendant tin say they never received information technology.
"With a process server, we take a third party who tin can verify they served the claim," she says.
Oliver says plaintiffs are then required to provide an affidavit of service, showing the court the defendant is aware a legal action has commenced confronting them.
4. Give the defendant a chance to respond
After a merits has been delivered, she says the defendant has 20 days to serve a defense force.
"Out of professional courtesy, I tend to requite people more than 20 days," Oliver says. "In one case the 20 days has expired, I volition remind them of the merits, provide a courtesy copy and ask them to again respond."
Three things can then happen. First, the accused can respond and file a defence, explaining their side of the story.
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"Once they file a defense, then in that location will be a settlement conference," she says. A second selection is for the person to file a defendant's claim, explaining why they are not completely – or at all – responsible for the issues that are existence raised. Another party could be added to the courtroom activity at this stage, with that party and then given 20 days to respond.
File a defence
A 3rd option is for the defendant to file a defence forth with a defendant'due south claim. The defendant's claim may be against the initial plaintiff or it may be confronting a tertiary party who was not initially involved in the claim, Oliver says. Whatsoever new parties to the action will be given 20 days to respond.
five. if the defendants fail to reply
If the defendant fails to respond, she says the plaintiff can notation the accused in default.
"Because people have to respond to allegations in legal claims, it can be argued a lack of response should be seen as their acceptance of the allegations in the merits and their credence of the damages being sought," she says.
Drawing on her extensive experience in the Small Claims Court, Oliver says she always warns clients not to exist in a rush to have a default judgment alleged by a judge.
"If you push likewise chop-chop to have a accused noted in default, they can easily come up back and file a movement with the court explaining they were out of the country, or sick, or they can provide another reasonable alibi and the court will probably ready aside the default judgment and the plaintiff would unable to proceed with enforcing the judgment," she says.
"You lot desire to avoid the additional costs and delays that will involve, so requite them fourth dimension to reply before filing for a default judgment."
Oliver says she has seen default judgments gear up bated months later on being granted, which is why she gives defendants at least half-dozen months to reply, during which time she will remind them of the claim in letters and telephone calls.
'Good religion effort'
"If I do move to have them noted in default, I make sure I take plenty documentation to prove the court that I accept made a good faith try to exist in touch with them," she says. "If you can show proof that you have fabricated many efforts to accept the accused file a defense force but they didn't, the courtroom will normally permit the default judgment to stand."
vi. Rent a legal professional
No matter what y'all are suing for, Oliver says your chances of success will be enhanced by hiring a lawyer or paralegal who understands both statute and common law. She gives the example of someone alleging wrongful dismissal.
"People without legal training practice non know the legal precedents found in mutual law, which guides judgments in terms of entitlements or detect periods," she says.
If the instance revolves effectually a contractual dispute, Oliver says a layperson may not understand the half-dozen elements that must exist found in a contract to make it legal and binding.
"A trained legal professional will know what to look for, and will be meliorate able to advocate for yous in Small-scale Claims Court than y'all volition exist able to do past yourself," she says.
This is the offset of a 3-part serial. Next month Joyann Oliver discusses what goes on during the settlement conference and provides more information nearly default judgments.
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Source: https://legalmatterscanada.ca/how-to-launch-and-win-a-lawsuit-in-ontario-small-claims-court/