small claims final exam

what does ADR stand for

alternative dispute resolution

when must a settlement conference be held

in every defended action

how many days must the settlement conference be held after the first defended action

within 90 days. Subrules (1) to (3) do not apply if the defence contains an admission of liability for all of the plaintiff’s claim and a proposal of terms of payment under subrule 9.03 (1

what is the purpose of settlement

o   1) The purposes of a settlement conference are,

§  (a)  to resolve or narrow the issues in the action;

§  (b)  to expedite the disposition of the action;

§  (c)  to encourage settlement of the action

§  (d)  to assist the parties in effective preparation for trial; and

§  (e)  to provide full disclosure between the parties of the relevant facts and evidence.

how many days before the conference must disclosure be given

o   At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,

§  (a)  a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence; and

§  (b)  a list of proposed witnesses (Form 13A) and of other persons with knowledge of the matters in dispute in the action

are character witnesses allowed

o   Character witnesses are not allowed unless the character of the defendant is the issue at hand

when can parties make a final order within the settlement conference

o   Parties can agree to a final order within the settlement conference if the amount is under the appealable limit ($5,000 and under) and if the parties agree before or during the conference

what rule is associated with settlement

13

can a party withdraw a claim after a settlement conference has been held

·      After a settlement conference has been held, a claim against a party who is not in default shall not be withdrawn or discontinued by the party who brought the claim without,

o   (a)  the written consent of the party against whom the claim is brought; or

o   (b)  leave of the court

what % are costs of the amount claimed

o   Up to 15% of amount claimed

o   Shall not exceed $100 (for settlements specifically) unless the court orders otherwise because there are special circumstances

§  What constitutes “special circumstances”?

§  If the defendant has lingered when producing their disclosure after multiple attempts to ask for them and they finally send it the night before the conference for example. This is very unfair for the plaintiff and they may be given more in costs beyond the $100.

what is an invitation to treat

an invitation intended to do nothing more than to open up negotiations; usually does not contain essential terms of the settlement

can you tell the court about settlement discussions

Never file an offer to settle with the court. A judge can never know of settlement discussions

what are the two types of offers to settle

·      An offer with an expiration date

·      1 minute after the commencement of trial trial offer

what is a request fir clerks order on consent

this is where you ask the clerk to give consent for the plaintiffs claim to be removed without paying costs and the case be dismissed. This may happen when there’s been a settlement and the defendant agrees to pay but they don’t want the public to see the payment was done (every time you file with the court it becomes public).

o   This should be a term of the settlement if you are representing the defendant

what costs does the plaintiff get on an offer to settle if there’s nothing addressing it in the offer

o   If an accepted offer to settle does not deal with costs, the plaintiff is entitled,

§  (a)  in the case of an offer made by the defendant, to the plaintiff’s disbursements assessed to the date the plaintiff was served with the offer;

§  (b)  in the case of an offer made by the plaintiff, to the plaintiff’s disbursements assessed to the date that the notice of acceptance was served. 

what does the plaintiff get in costs for a failure to accept offer

up to twice the costs of the action

what are the conditions

o   .  The plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer.

o   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

is this the same for if the defendant made the offer

·      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, other than disbursements, from the date the offer was served, if the following conditions are met:

o   1.  The plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer.

o   2.  The offer was made at least seven days before the trial.

o   3.  The offer was not withdrawn and did not expire before the trial.  O. Reg. 258/98, r. 14.07 (2); O. Reg. 3/25, s. 11 (2).

·      So the defendant would still have to pay the plaintiffs costs, and they would be awarded double their own costs. So this will lower the amount of costs the defendant will have to pay

what form and rule is for settlement offers

14

what is a partial settlement agreement

·      Party settles with some but not all of the opposing parties in a lawsuit

·      Settling parties are able to secure a resolution of that portion of the claim in which they are involved without disturbing the right of non-settling parties to continue to trial

·      effects of PSA

o   Parties who want to exit litigation and avoid costly and prolonged process may wish to resolve their dispute, and should not be discouraged by a party who is not prepared to settle

o   Settling defendant may have evidence relevant to the defence of a non-settling defendant

o   Recovery by the Plaintiff against the non-settling defendant will be limited (reduced) by the amount obtained in the settlement with the settling defendant

what is The Pierringer agreement

It is useful to start by discussing the nature of a Pierringer agreement and specifically what they are designed to achieve. Pierringer agreements are a valuable tool to encourage settlement in multi-party litigation. They shield the settling defendant from any claims by non-settling defendants for contribution and indemnity because the settling defendant is assured to only pay damages commensurate with their degree of fault found at trial: To achieve this, essential terms include 1) the plaintiff limiting its claim against any non-settling defendant to their several liability, 2)  the settling defendant no longer seeking contribution and indemnity from any non-settling defendant, and 3) the plaintiff indemnifying the settling defendant against any claim over by a non-settling defendant

what is the Mary Carter agreement

·      The settling defendant(s) agrees to provide the plaintiff with a certain guaranteed sum of money, regardless of the outcome of the trial;

·      The plaintiff agrees to limit its recovery against the settling defendant(s) to, at maximum, this amount;

·      The settling defendant(s) remains in the lawsuit, in practice or by agreement, for the purpose of trying to establish the liability of the non-settling defendant(s) to the highest possible degree.

·      The plaintiff agrees to limit its recovery against the non-settling defendant(s) to the non-settling defendant(s)’s several liabilities;

·      The plaintiff agrees to indemnify the settling defendant(s) for any contribution sought from the non-settling defendants(s); and

·      The plaintiff agrees to decrease the sum guaranteed by the settling defendants by the proportion which the non-settling defendant is held to be liable for.

 

Improvident settlements

·      An improvident (not having or showing foresight/thoughtless) settlement is a settlement of one’s claims at an amount significantly below what a claimant could reasonably have expected to receive in settlement of his/her claims.

·      Not because it is low, rather because it is significantly lower than what would have been reasonable in the circumstances had the legal representative recommending the settlement exercised reasonable competence in negotiating the settlement

what do you need to include in your legal opinion

·      Provide full legal opinion –include risks (loss and costs) and reasons for the opinion

how long after the settlement conference must a trial be set if there’s no agreement in settlement

30 days

what can the court include or not include in pre trial disclosure

Subject to subsections (3) and (4), the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious

how much do witnesses get per km for travel to court

30.5 cents/km for norther Ontario, 30/km for southern Ontario

what is a “will say” from a witness

a written, not sworn statement from a witness

what are the problems associated with affidavits and witness credibility

Affidavits are normally crafted by lawyers.  They are not the spontaneous statements of witnesses subject to immediate cross-examination.  When affidavits concern controversial matters they tend to present facts in a light favourable to the party on whose behalf they were prepared. (at pp. 329-3) 

This fettering of a witness’s conscience potentially undermines the credibility of a witness’s testimony at trial.

A further consequence of the practice is that it potentially raises a number of collateral issues about how the affidavit was prepared and the extent to which the witness was helped to recall facts disclosed in the affidavit.

If anything, the taking of the affidavit from Mr. Young compromised the plaintiff’s case by opening avenues of inquiry on cross-examination with the potential to undermine his credibility.

in a document brief before trial, should you use tabs or bookmarks

  Document Brief – consider preparing a bound, tabbed, index and title page instead of individual exhibits (digital format with “bookmarks” instead of tabs)

does a defendant get a grace period if they fail to attend trial?

While a 30-day "grace period" exists to move to set aside such a judgment, the burden shifts entirely to the absentee to prove "special circumstances" for their failure, reinforcing that the court views trial attendance as a non-negotiable prerequisite for justice, rather than a suggestion.

what does a plaintiff have to prove in an assessment hearing for damages for a defendant in default

the plaintiff is not required to prove liability against a defendant noted in default, but is required to prove the amount of the claim

what is the normal flow of trial

opening statement, your witness presents evidence, examination in chief (you examine your own witness), cross examination, re direct (can only be about matter brought up in the cross examination, and you cant do this for the opposing sides witness), closing submissions

who must be served a summons and how

·      Always summon a witness no matter how close you are to them

·      Each witness gets s separate summons and must always be done by personal service (no mail)

·      The summons must also be served on the opposing representative. You can then file the proof of service with the court to show that the service has been done

·      Consequences for failing to comply with 18.02 (5) and (6)?

o   R. 18.02 (7)

o   If you don’t serve the opposing representative, they may request an adjournment with costs

how many days in advance must you provide supporting documents for your witnesses

at least 14 days. but list of proposed witnesses is 30 days

what is the prescribed amount to allow an appeal from the court to the divisional court

What is the “prescribed amount?”

o   More than $5000 (so 5,000.01) This must be the final order amount excluding costs

what is the maximum amount of disbursements allowed for affecting service

o   The amount of disbursements assessed for effecting service shall not exceed $60 for each person served unless the court is of the opinion that there are special circumstances that justify assessing a greater amount.  

what is the max % of costs that can be granted on a successful party

  An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed (NOT the amount awarded) 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 behaviour in the proceeding.

when would a successful party be awarded a representation fee

·      If a successful party is represented by a lawyer, student-at-law or paralegal, the court may award the party a reasonable representation fee at trial or at an assessment hearing.

how much can a successful self represented party get in representation fees

The court may order an unsuccessful party to pay to a successful party who is self-represented an amount not exceeding $500 as compensation for inconvenience and expense. 

what’s the consequence for declining an offer to settle

·      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, other than disbursements, if the following conditions are met:

o   The plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer.

o   The offer was made at least seven days before the trial.

o   The offer was in writing.

o   The offer was not withdrawn and did not expire before the trial. 

is there a guarantee or entitlement to costs

o   Firstly, for the costs award associated with Part 1 of Claim 3, the Deputy Judge erred in the wording she used when applying r. 19.02 of the Rules of Small Claims Court and s. 29 of the Courts of Justice Act. Mr. Williams is not “entitled to” 15 percent of the amount “awarded”

o   After all, s. 29 of the Courts of Justice Act does not guarantee a certain amount of costs, but rather only limits the maximum amount permitted

review this for cost calculation review

•       Claim for $35,000

•       Trial results in judgment of $20,000 payable by the Defendant

•       Usual maximum costs up to 15% = $5,250.00 payable by the Defendant

•       Defendant made a “trial offer” where the Defendant would pay $25,000 to the Plaintiff, to settle the case.

•       Plaintiff did not accept the offer.

•       Who should be seeking costs, and against whom?

•       Defendant would get costs from the plaintiff

•       What is the maximum amount of costs that party can seek?

o   The defendant would get 30% (double the costs amount) so 10,500

o   The amount awarded BEFORE COSTS is less favorable than what the offer was and the defendant is entitied to costs

what is the purpose of costs

o   Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.

what is the max amount you get in disbursements for effecting service

$60

when can you send your cost submissions to the court

·      After judgment is rendered

o   Or

·      In a sealed envelope prior to the judgment being rendered

·      Subject to the instructions of the presiding judge

·      Includes submissions re: Offers presented if such were “trial offers”

·      Do not raise or discuss offers until judgment is rendered, failing which the party may be penalized and/or a mistrial may be called by the judge and/or opposing resulting in substantial costs against your client and/or yourself as an advocate

are bill of costs and cost submissions the same thing

no. Submissions = legal arguments

·      Issues before the judge:

o   Whether or not the Plaintiff/Defendant is entitled to Costs?

o   If yes, what is the amount of costs the party should be awarded

bill of costs is pretty much a form with a table on what the exact costs are

on a motion in writing for an assessment of damages, what happens if the supporting affidavit is deemed inadequate

§  (3) On a motion in writing for an assessment of damages under clause (2) (a), a judge who finds the plaintiff’s affidavit inadequate or unsatisfactory may order that,

§  (a)  a further affidavit be provided; or 

§  (b)  an assessment hearing be held

an oral motion for an assessment of damages is done through what?

an assessment hearing

what might a plaintiffs claim be dismissed at an assessment hearing

o   The plaintiffs then filed a motion for assessment of damages, which was dismissed on March 7, 2013.  I found that the supporting affidavit made no attempt to establish the plaintiffs’ entitlement to a judgment as a matter of fact and law, in any amount.  The dismissal was without prejudice to a further motion on fresh evidence, or the matter could proceed as an assessment hearing

what happens if a plaintiff doesn't provide an original form of a contract

o   Given the evidence before the court including the absence of an original version of the contract, the lack of evidence concerning its form when executed by the defendant and the lack of initials on the Terms and Conditions document and the form and hearsay nature of the copy produced,  I am not prepared to accept on a balance of probabilities that it is a true copy of the back of the document signed by the defendant.  Therefore I decide this matter without reference to those Terms and Conditions

what does it mean to be jointly and severally liable

multiple parties who owe the money, wherein each party owes the full amount (together or separately from other party)

how to calculate dates between time

When calculating dates between time, you EXCLUDE the day the calculations start and INCLUDE the last day

how is post interest interest calculated

starting on the date when the court makes the order and ending on the date you receive payment. This interest is intended to cover the loss of the use of money you would have had if you received payment the day the judgment was made.

you add the amount awarded + any costs + prejudgment interest (if any), then multiply by the quarterly interest rate (make sure its divided by 100 for a percentage) then you divide by 365, then multiply by the # of days.

how to know the location of the enforcement?

·      where the debtor resides, employed, owns property (not always the same jurisdiction where the judgment was obtained)

o   so the enforcement can be in a different place than where the judgmemt was

what are secured creditors

·      whose loans/amounts are secured against personal or real property of the debtor. Collateral against the loan. Mortgage is one form of a secured loan.

what are preferred creditors

– unsecured creditor who ranks ahead of ordinary unsecured creditors because of priority and special rights conferred by a statute. Example: Crown in right of Canada, then Crown in right of Ontario. Certain child and spousal support claims, municipal taxes

what are ordinary creditors

·      creditors with no security for the debt and no preferred status. Type that is often encountered in Small Claims Court.

can the court change the times and proportions in which money is paid to the debtor

yes, Small Claims Court may order the times and the proportions in which money is payable under an order of the court

·      Rule 20.02 (1)

o   Stay the enforcement of an order for such time and on such terms as are just; and

o   Vary the times and proportions in which money is payable under an order, if the court is satisfied that the debtor’s circumstances have changed

how long after a creditor filed a notice of default payment (when they dont pay on time) does the debtor have to pay the periodic payment?

·      The Order for periodic payment terminates on the day that is 15 days after the date the creditor serves the debtor with the notice of default payment, unless the creditor files a waiver of default within 15 days.

·      If no consent is filed, creditor may file an Affidavit of Default Payment (Form 20M) and once the Periodic Payment Order terminates, may enforce judgment by any lawful method.

what can a debtor do if they have two or more unsatisfied orders for payment (what motion can they bring)

·      Debtor who has two or more unsatisfied orders for payment, may (by motion) obtain an order consolidating orders

·      Regular motion procedures apply

·      Service of the motion materials must be made on all creditors who are affected by the consolidation order

·      The purpose is to lower the payments – therefore the debtor is to demonstrate the total amount(s) owed to all creditors that are subject to the consolidation order, his income from all sources, identify the sources of income, and all particulars of his current financial debts and obligations (Financial Form 20I)

how much of the debtors wages can the consolidated order be for

·      Total amounts to be paid into court by the debtor, towards the consolidated order may not exceed 20% of the debtor’s wages (sec. 7 of the Wages Act)

·      Net wages – after all source deductions are applied, includes CPP, Taxes, EI

·      Creditors equally share the payments made into court; court distributes the funds at least once every six months

when would a consolidation order be terminated

·      If an order for payment of money is obtained against the debtor for a debt incurred after the date of the consolidated order or if the debtor is in default under the consolidated order for 21 days

·      Rules 20.09(8) and (10)

·      Once terminates, the creditor may enforce by any lawful means

how do you enforce an order from another Ontario court

·      File Affidavit for Enforcement Request (Form 20P)

·      Obtain a Certificate of Judgment (Rule 20.04)(Form 20A)

·      File the Certificate of Judgment at the court of appropriate geographical jurisdiction

·      Once filed, it becomes an Order as if that court issued the Order

how do you enforce an order from another canadian jurisdiction

you need a motion under the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5, as if it was an Order from Ontario

calculation of pre and post judgement intrest

·      Pre-judgment interest ends on the day before the judgment is granted

·      Post-judgment interest begins on the day the judgment is granted

·      Calculating days – eliminate the first day and include the last day of each time period in compliance with Rule 3.01

·      Rate = contractual or as per CJA

·      s. 347 of the Criminal Code prohibits an interest rate in excess of 60%

·      Payday Loans Act (Ontario) and its regulations – prescribes maximums that can be charged to the borrower

 

what is a notice of examination

gives the creditor the opportunity to discover assets, resources for enforcement

·      Who can be examined?

o   Debtor

o   Officer or director of the corporation who is a debtor

o   Partner of a debtor who is in a partnership

·      Must be conducted in the jurisdiction where the debtor resides/carries on business (may require a Certificate of Judgment)

·      In addition to the Notice of Examination, serve Financial Information Form (Form 20I) on the debtor

 

what happens if the debtor doesn’t attend the examination hearing

·      If the documents were served on the party in accordance with the Rules, and the party fails to attend at the Examination Hearing

·      Court may order that person to attend for a contempt hearing (Rule 20.11(1))

·      If court finds contempt of court, the person may by way of a motion set aside the finding of contempt (before the actual contempt hearing (Rule 20.10)

·      If the person attends, but refuses to answer questions, court may find that person in contempt of court.

·      At a contempt hearing the court may order that the person be jailed for a period of not more than five days, among other orders

what happens when the debtor has paid everything off

·      If the amount(s) owed has been satisfied, in full, the Creditor must immediately serve and file termination of garnishment and/or serve and file request to withdraw writs

·      Failure to do so, may result in costs against the Creditor

what is a writ

A writ is a formal written order issued by a court or legal authority commanding an individual or entity to perform a specific action or stop doing something. It acts as a mandatory command, often used for enforcement, such as seizing property to satisfy a debt, issuing subpoenas, or requiring a person to appear before a court

what items are exempt from garnishment

·      Non-Exigible assets – those assets that cannot be seized by the sheriff or bailiff under a writ, nor may be garnished

·      s. 2 of the Act = personal property of a debtor that is not a corporation, and at the option of the debtor, exempt from forced seizure or sale by any process at law or in equity:

·      Necessary clothing of the debtor and the debtor’s dependants

·      Household furnishings and appliances that are of a value not exceeding the prescribed amount

·      Tools and other personal property of the debtor, not exceeding the prescribed amount in value, that are used by the debtor to earn income from the debtor’s occupation.

·      One motor vehicle that is of a value not exceeding the prescribed amount.

·      Personal property prescribed by the regulations that is of a value not exceeding the prescribed amount

what is not exempt

·      Exigible assets – those assets that can be garnished or seized

·      Pensions, Benefits (CPP, Old Age Security, EI, etc.)

·      Wages: 80% of the net wages. May be increased/decreased on a motion

·      Insurance benefits: WSIB, pursuant to Insurance Act

·      Ontario Works benefits, Ontario Disability Support payments

·      Necessary clothing of the debtor and his/her dependants

·      Household furnishings and appliances that do not exceed prescribed amount

·      Tools and other personal property of the debtor, not exceeding the prescribed amount, that are used to earn income from the debtor’s occupation

·      Medical devices that are required by the debtor or its dependents to assist with disability or a medical or a dental condition

what is the prescribes amount for household furnishings

$17,091.

what is the prescribed amount for farming if its the debtors main occupation

$37,820. if its not the main occupation then $17,362

what is the prescribed amount for a car

$8,578

what is the prescribed amount for the principled residence

12,997

what to do for a writ of seizure and sale of land

·      Requires Affidavit for Enforcement Request (Form 20P)

·      File the Writ & the Affidavit with the Court where the property is located, regardless of where judgment was granted.

·      May need Certificate of Judgment (20A) if from another jurisdiction

·      Once the court issues the Writ, file with the local Sheriff (Enforcement Office)

·      Applies to “real property” = property that has value, is tangible, immovable

how long does a writ stay in place for

6 years

·      A Writ is not a lien on the property

·      Writ is against the person’s name

·      Restricts sale of the property

·      Restricts financing / re-financing of the property (maybe permitted in certain circumstances)

·      Interest continues to accrue

·      Renewable indefinitely, each time for  a six (6) year term

·      If writ is not filed within six (6) years after the judgment is granted, leave of the court (motion) is required to issue the writ

·      If not issued within 1 year after leave is granted, another motion is required

who is charged for each writ attempt

·      Enforcement office will require a deposit and enforcement fee, to cover anticipated expenses

·      Creditor will be charged for each attempt, successful or not, plus travel (km)

what is an improvident sale

An improvident sale occurs when a mortgagee (lender) sells a property under power of sale without taking reasonable care to obtain its true market value, often due to poor marketing or ignoring key property characteristics.

what does “pro rata basis” mean

proportional distribution

for wages/ bank account, who is the garnishee and who is the garnishor

·      Garnishee – person who owes the money to the debtor (Employer) -

·      Garnishor – person (creditor) who is trying to enforce an order

how to enforce a garnishment

·      File the Notice of Garnishment and the Affidavit for Enforcement with the Clerk (jurisdiction where the debtor resides/carries on business)

·      Clerk will issue the Notice of Garnishment – naming only 1 debtor and 1 garnishee

·      Issued Notice of Garnishment is returned to the Creditor by the court

·      Serve the Garnishee with the Notice and a blank Garnishee’s Statement ( in accordance with the Rules)

·      Serve the Debtor within five (5) days of serving the garnishee

·      File AOS/COS with the court for each instance

·      Notice of Garnishment is valid for six (6) years after the notice is served

how long does the garnishee have to pay to the court after notice

10 days

what does a party have to prove in a motion for a new trial

1. there was a purely mathematical error in determining the amount of damages awarded

2. there is relevant evidence that wasn’t available to the party at the time of the original trial and couldn’t have been reasonably expected at the time

what does it mean to encumber a property

·      Encumber = to register a mortgage, lien, other security against property

·      Person holding the security interest = encumbrancer

·      If the assignment and/or encumberance effects/prejudices the lawful claims of other creditors, it will be subject to judicial scrutiny

once paid, who must get the notice of termination of garnishment

the garnishee and the law clerk through form 20R