To finalize this set of blogs about the Plaintiff’s Claim in the Construction / Renovation context, I thought it would be worthwhile to give some information about that all-important Schedule A!

Schedule A
The Plaintiff’s Claim includes space for you to give reasons as to why you think you’re entitled to damages from the Defendant(s). The space provided in the government form is not normally enough for you to tell your side of the story. That’s why you can simply state “See Attached Schedule A” and then give your story on a separate document which you attach to your Plaintiff’s Claim. Make sure to title this document “Schedule A”.

In what follows, we’ll be going over some of the various factors which you should consider when drafting your own Schedule A.

The Claim
The first thing any Schedule A should have is a paragraph that sets out who you are suing and for how much. For example: “The Plaintiff is suing the Defendant, Jeremy Smith, for breach of contract and for negligent performance of services rendered for $5,000.”

The Parties
Next, Schedule A should identify the parties to the claim. Here are some examples:

“The Plaintiff, John Doe, is an individual residing in Toronto, Ontario.”

“The Plaintiff, X Corp., is a corporation with an office in Mississauga, Ontario.”

“The Plaintiff, ABC Partnership, is a partnership with an office in Oakville, Ontario.”

“The Defendant, Jane Smith, is an individual residing in Newmarket, Ontario.”

“The Defendant, 123456 Ontario Inc., is a corporation incorporated under the laws of the Province of Ontario.”

“The Defendant, Jeremy Smith, is an individual operating a sole proprietorship under the name Acme Suppliers”.

The Story
After having identified who you are suing and for how much and having identified all the parties to the action, it’s now time to tell your side to the story. In short and simple sentences and numbered paragraphs, tell the court the chronology of how the parties came together, what they agreed to, what actually happened, and how you suffered damages as a result of the Defendant’s acts or omissions. Dates, places, and the nature of the occurrences are important. Also, be sure to explain how you came to (if applicable) the nature and amount of the damages. You do not need to use “legalese”. Just write in everyday language.

Here are some examples:

Example #1:

The Plaintiff hired the Defendant to paint the Plaintiff’s house.

On January 1, 2010, the Plaintiff and Defendant signed an agreement.

The agreement said that the Defendant would paint the Plaintiff’s house for $5,000.

The Plaintiff had to provide a $1,000 deposit as part of the agreement, which the Plaintiff did.

The Defendant did not paint the house, but kept the Plaintiff’s deposit.

Example #2:

The Plaintiff hired the Defendant to renovate the Plaintiff’s kitchen.

On January 1, 2010, the Plaintiff and Defendant made an oral agreement.

While the Defendant was renovating the Plaintiff’s kitchen, the Defendant damaged the Plaintiff’s floors.

Despite the Plaintiff’s demands, the Defendant did not fix the damaged floors.

The Plaintiff had to hire a third party to fix the floors, which cost $5,000.

The Defendant should reimburse the Plaintiff for the cost of fixing the floors.

Example #3:

The Plaintiff hired the Defendant to repair the Plaintiff’s leaky roof at a cost of $10,000.

On January 1, 2010, the Plaintiff signed the Defendant’s contract for work.

The Defendant was supposed to repair the leaky roof to make the house air and water tight.

3 months after the Defendant allegedly repaired the leaky roof, the roof began to leak again.

The Plaintiff suffered extensive water damage because of the leaky roof amounted to $5,000.

The Plaintiff hired a third party to fix the leaky roof at a cost of $5,000.

The Plaintiff wants the Defendant to return the original $10,000 and pay an additional $10,000 to compensate the plaintiff for the damages.

Please note that the above are simplified examples provided for informational purposes only. Your story may have a lot more detail and complexity (e.g. parties, facts, legal issues, etc.). You should contact a lawyer if you have any concerns about the legal claims you’re raising or how to properly draft your story in a clear and convincing manner.

Remember: this isn’t legal advice.  It’s simply legal information.  If you’re looking for a lawyer, make a post on Dynamic Lawyers.

written by admin \\ tags: breach of contract, chronology, damages, defendant, jane smith, jeremy smith, john doe, mississauga ontario, newmarket ontario, oakville ontario, ontario inc, paragraph, paragraphs, plaintiff, province of ontario, renovation, simple sentences, sole proprietorship, toronto ontario, x corp

As a follow up to my last blog about small claims court matters, let’s keep going…Remember: this isn’t legal advice.  It’s legal information.  If you’re looking for a small claims court lawyer in Ontario, make a post on Dynamic Lawyers.

Valuing the Claim
Remember: the amount of damages you suffered must be less than $25,000. If it is over this amount, you will have to reduce your claim to $25,000 exclusive of interest (pre and post judgment) and reimbursement of court costs or legal fees. If you are not prepared to reduce your claim to this limit, then you need to take your case to the Superior Court.

If you claim for more than $25,000 or if you split your claim into smaller portions, each under $25,000 but which altogether are over $25,000, you run the risk of having the Small Claims Court reject your claim, or a party challenging it.

The next question is how to quantify your claim. If your claim is based on an invoice or a contract price or a specific damage that is ascertainable, then you know the value of your claim. Enter this amount on the space provided on page 3 of the Plaintiff’s Claim that says “How Much?” Along with entering the amount of your claim, there is also a space on the form to claim interest. Interest may be based on an agreed upon amount (e.g. as per a contract) or in accordance with the current court rate (as per Courts of Justice Act).

If your claim is not based on an invoice or a contract price and is not readily ascertainable, then you can put down your best estimate of what your total damages will be when the dust settles up to the maximum $25,000. You can also claim interest on this types of damages.

When calculating your damages, some things to keep in mind are: out-of-pocket expenses, lost income, lost opportunities, loss of reputation, loss of value to property, etc. Emotional distress and psychological harm are not easily to quantify and there are stringent legal tests that must be met in order for a court to award damages on that basis. Besides, if you claim these latter types of damages, you may expose yourself to having to open up your medical history through the litigation.

…Next Up: Schedule A…

written by admin \\ tags: best estimate, contract price, court matters, courts of justice act, emotional distress, interest interest, invoice, judgment, lawyer, lawyers, legal advice, legal information, legal tests, plaintiff, pocket expenses, psychological harm, reputation, small claims court, superior court, types of damages

As a follow up to my other blogs about the Ontario Small Claims Court, I thought I’d give some insight into the Plaintiff’s Claim.  Particularly, I want to shed some light on various aspects of the Plaintiff’s Claim in light of a Construction / Renovation dispute.

But first…a refresher for those who need it….

The Ontario Small Claims Court is one branch of the judicial system governing court disputes in Ontario.  The Small Claims Court is meant to be a more informal and simplified way of resolving disputes involving relatively small amounts of money.  As of January 1, 2010, the Small Claim’s Court’s monetary jurisdiction (i.e. the maximum amount of damages that the court can deal with and award) was increased from $10,000 to $25,000. This brings Ontario up to where other provinces – namely, Alberta, British Columbia, and Nova Scotia – have put their limits.

What is a Plaintiff’s Claim for a Construction / Renovation Dispute?
If you find yourself in the situation where the person or company you hired to build or fix your home or business has not done what you hired them to do, you may need to take them to court. To do so, your first step is drafting a Plaintiff’s Claim. A Plaintiff’s Claim is a court form which the injured party (the “Plaintiff”) fills out. The form must be filled out properly and completely or it may be rejected by the court staff or challenged by other parties. A Plaintiff’s Claim is basically your chance to tell your side of the story and explain why another party (the “Defendant”) has injured and should compensate you.

The Plaintiff’s Claim (Form 7A)
In what is to follow, we’ll be reviewing the major portions of the Plaintiff’s Claim as it relates to a Construction / Renovation dispute. Remember: if you need help with regards to filling out this form given your particular situation, you should contact an Ontario small claims court lawyer.

Court name
The first step in filling out the Plaintiff’s Claim is to identify the relevant court where you will start your litigation. Rule 6 of the Rules of the Small Claims Court says that you must commence your claim in the court where either the damage was done or where any Defendant(s) resides or carries on their business. So there may be a choice as to where you can start your litigation. If, for example, your scenario allows you to commence your litigation in either Toronto or Milton and you would prefer a faster court resolution, you may decide to go with Milton (because it’s not as busy as Toronto).

If you start your lawsuit in the wrong court, court staff may not accept it. Even if it is accepted, a party to the dispute may challenge the jurisdiction and require that you (at your time and expense) transfer the case to an appropriate court.

If you start a lawsuit in a court where no defendant resides, then you may be requested to swear an “Affidavit of Jurisdiction” (another court form where you swear the contents of what you say in the document are true and you sign it before a commissioner for taking affidavits) that the damages you suffered arose in the jurisdiction of the court office where you are filed the Plaintiff’s Claim.

You can obtain the contact information and jurisdiction for all Ontario Small Claims Courts at the Ministry of the Attorney General’s website.

Parties
Next, you need to properly identify the parties to the action. Make sure to use full legal names. Get a lawyer if you need help on this as they can perform various searches to properly identify parties. If, for whatever reason, a party cannot be properly identified, you may be able to include the name “John Doe” or “Jane Doe” (in the case of an individual) and then properly identify them later by amending your Plaintiff’s Claim.

If a party (Plaintiff or Defendant) is an individual, make sure to have their full legal name(s). The individual’s middle names are not necessary. If the party is known by more than one name, you can include each addition name as another party. It’s always best to be overly cautious about naming parties!

If a party is a sole proprietor (which is an unincorporated business owned and operated by one individual), then you need to identify both the individual and the name under which the business operates.  Here, a sole proprietorship in a Plaintiff’s Claim could be one party (e.g. “John Doe, carrying on business as Acme”) or two separate parties (e.g. “John Doe” as one party and “Acme” as another).

If the party is a company, make sure to include their full corporate name ­- which always includes a suffix such as “Corp.”, “Co.”, “Inc.”, “Ltd.”, etc. or simply the words “Company”, “Corporation”, “Incorporated”, or “Limited”.  The Ministry of Consumer and Business Services maintains a database of company names and, for a small fee, you can obtain a Corporate Profile Report to make sure you get the proper business name.

If the party is a numbered company doing business under a different name (called a “Trade Name”), then you should identify the party as the numbered company operating as that Trade Name (e.g. 123456 Ontario Inc. carrying on business as Acme).  The fear here is that if you don’t include both the corporate name and the Trade Name, then you may ultimately get a judgment only in the name of one of those parties.  You may not be able to collect on such a judgment: you will need a court order to amend your judgment to correct the name.  Once again, there is a government database of Trade Names which can be searched to properly identify parties.

If a party is a general partnership (two or more persons carrying on business together with a view to a profit), you need to identify both the individual partners and the name under which the partnership operates.  Here, a partnership in a Plaintiff’s Claim could be one party (e.g. “John Doe and Jane Smith operating as Acme Partnership”) or three parties (e.g. “John Doe”, “Jane Smith”, and “Acme Partnership”).  Worth mentioning is that if you only identify the partnership name as a Defendant, for example, and get a judgment, if the partnership has no assets but the individuals partners do, your judgment won’t be enforceable against the individual partners.  The Ministry of Consumer and Business Services maintains a database of partnership names registered under the Business Names Act and, for a small fee, you can obtain a Corporate Profile Report to make sure you get the proper partnership name.  Third parties also provide those services.

In the first page to the Plaintiff’s Claim, there is a place to include all the relevant information about the Plaintiff(s) and Defendant(s).   If there are multiple Plaintiff(s) and Defendant(s), then you’ll need to use form 1A “Additional Parties” and include that with your Plaintiff’s Claim.  Make sure to check off the box on the Plaintiff’s Claim to indicate that there are additional Plaintiffs or Defendants.  Finally, if a party is an individual under 18 years of age, be sure to check off the box or boxes that apply.

…TUNE IN FOR MORE BLOGS ABOUT THE PLAINTIFF’S CLAIM…

written by admin \\ tags: construction, defendant, ontario small claims court, ontario small claims court lawyer, plaintiff, small claims court

So the Supreme Court mentioned bloggers in a recent decision on defamation law.  That’s a big deal.  The case is Grant v. Torstar Corp.  The case involved defamation law.

What’s important here is not so much the facts of the case or the outcome of the decision, but rather what the Supreme Court observed about bloggers when it comes to defamation.

In a nutshell, the Supreme Court observed that bloggers engaged in public communication on matters of public interest could have a viable defence against defamation lawsuits.  That defence was called “responsible communication on matters of public interest“.  The Supreme Court held that this defence will apply to media (and bloggers) where:

A. The publication is on a matter of public interest and

B. The publisher was diligent in trying to verify the allegation, having regard to:

(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff’s side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.

The Supreme Court commented that this defence is, absent good reason, available to anyone who publishes material of public interest in any medium.  So there you have it: bloggers and other online social media personalities are on the same page as traditional media when it comes to this new defence.

written by admin \\ tags: bloggers, blogging, defamation, grant v. torstar corp, supreme court of canada

Dynamic Lawyers is looking for a Toronto Civil Litigator to respond to a new public post (i.e. someone is looking for a Toronto Civil Litigator to help them appeal their Tarion decision to Divisional Court).  If you are or know a  Toronto Civil Litigator who does this type of work, please give me a shout at michael@dynamiclawyers.com or sign up here.  You can read the full public post here.  Remember: Dynamic Lawyers is currently having a 1 month free trial period for new lawyers who sign up today.  There’s no risk and no obligations!  What are you waiting for?  Register today!

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to applying to the Ontario Land Titles Assurance Fund or appealing a tribunal decision, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have lawyers who can assist you in this process to make representations or appeal decisions.

Assumption:
For the purpose of this blog, I’m going to be discussing the process of applying to the Ontario Land Titles Assurance Fund in respect of real estate fraud that happened before October 19, 2006 (because that’s when recent amendments created a two-track system).

Synopsis:
The Ontario Land Titles Assurance Fund ["LTAF"] is typically a fund of last resort in cases of real estate fraud (where the fraud occurred before October 19, 2006).  The LTAF can cover clear financial losses and reasonable legal fees where a judgment has already been made and/or rectification has been ordered. To be eligible to apply to the LTAF, you must commence your claim within 6 years of the date of the alleged fraud. There are a number of rules concerning eligibility, such as the requirement that you must have tried other avenues (e.g. criminal, civil, title insurance, etc.) to rectify the fraud before applying to the LTAF.  After a claim is made, it will be assigned to a hearings officer for investigation. You may be asked for additional info or documentation to help clarify the claim. If compensation is not paid out directly, hearings may be held by the Director of Titles to determine if you have met the requirements for compensation and how much you will be paid.  You will be notified of the Tribunal’s decision in writing.  That decision can be appealed to the Superior Court of Justice within 30 days after the date of mailing of the Tribunal’s decision; in the event of no appeal, no further action will be taken by the Tribunal pending the outcome of the court process.

About the Fund:
The LTAF is established through the Ontario Land Titles Act to compensate people for certain financial losses due to real estate fraud (among other things).[1] Specifically, the LTAF can compensate an individual wrongfully deprived of land or an interest in land by reason of some other person being registered as owner through fraud.[2] The LTAF covers financial losses as a result of a fraud, reasonable legal costs related to the claim, and other reasonable costs related to the claim.[3]

Fund as Last Resort:
The LTAF is meant to be a fund of last resort for frauds that allegedly took place before October 19, 2006.  This distinction was caused by recent amendments to the Land Titles Act.

Time Limitations:
To be eligible to apply to the LTAF, your claim must be one that qualifies for coverage and an application must be made within 6 years from the time of having suffered the loss.

Eligibility
To be eligible for compensation:

1. You must demonstrate the requisite due diligence as specified by the Director of Titles.[4]
2. You must be unable to recover just compensation for their loss.[5]
3. You must make an application to the Director of Titles[6] “within six years from the time of having suffered the loss”.[7]
4. The Director of Titles may hold a hearing between the claimant and the other parties, and determine compensation as a result of those proceedings.[8]

You will not be entitled to recover out of the Fund any compensation where (among other things):

1. The person first registered could have conveyed good title to the purchaser.[9]
2. You had notice of registration proceedings.[10]
3. Your negligence has caused or contributed to their loss.[11]
4. You knowingly participated or colluded in the fraud.[12]

How to Make a Claim
You can make a claim by filling out a Compensation Claims Form and sending it by mail, fax, courier, or in person to the Director of Titles at the address below:[13]

Office of the Director of Titles
Ministry of Government Services
Service Ontario
Policy and Regulatory Services Branch
Suite 420, Box 117
20 Dundas Street West
Toronto, Ontario M5G 2C2
Tel: 416-314-4882
Fax: 416-314-4878
E-mail: Director_of_Titles@ontario.ca

A Compensation Claims Form is comprised of two documents: an Application for Payment of Compensation (Form 55) and an Affidavit in Support of Application for Payment of Compensation (Form 56)[14].

After a Claim is Made
After the Compensation Claim Form has been submitted, a letter will be sent acknowledging that the application has been received.  The file will be assigned to a Hearings Officer who will review the application to make sure it is complete and may suggest that you provide additional information to help clarify the claim.  The Hearings Officer will determine if you have met the requirements for compensation set out in the Land Titles Act and the amount of any compensation payable. If your claim cannot be paid in full, the Director of Titles of Deputy Director of Titles may hold a hearing for those purposes.[15]

Supporting Documentation
A Hearings Officer may request additional information and documentation to establish proof of your claim.  Some examples of the types of documents that the Tribunal has requested from claimants in the past are:[16]

• A police report with contact information. The Director of Titles may also contact the police to inquire about the status of an investigation and/or to confirm whether criminal charges are going to be laid or are pending and other results of any investigation.
• A statutory declaration indicating the fraud. The declaration may state, for example, that the signature on the documents affecting title was not your own, that you never consented to or received any consideration for and in fact had no immediate knowledge of the fraudulent documents and were not a party to the transaction.
• Any court order that may be applicable.
• Solicitor’s accounts and supporting documentation.

It is important to note that a default or consent order may not be conclusive evidence of fraud, depending on the case. The Tribunal overseeing the hearing may require additional information, and you may provide further documents.

Hearings:
If a hearing is ordered, the Director of Titles or Deputy Director of Titles will decide what type of hearing you will have (e.g. in writing, oral, electronic, etc.).  Hearing set dates will be set in consultation with the parties (all persons with an interest in the proceeding are entitled to be made a party).  Hearings are generally open to the public although the Tribunal does not have to guarantee public access. The Tribunal can issue a summons, which requires the named person to attend the hearing as a witness.  The Tribunal (presently comprised of 2 lawyers) will weigh the evidence – be it documentation or witness testimony.  If the Tribunal grants a claim for compensation in its entirety, there are no written reasons; if a claim is denied, reasons are generally given.  A party has a right to request reasons with any final decision.  The Tribunal has the discretion to award costs of proceedings where the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or where a party has acted in bad faith. The Tribunal also has a policy whereby the claimant’s time (at $25/hour) and reasonable out-of-pocket expenses relating to time spent on matters for which compensation may be paid can be compensable.  The final decision will be mailed first class to the claimant.  The Tribunal also makes its decisions public through the Internet.[17]

[2] Section 57(4)(a)(ii) of the Land Titles Act.

[3] Ibid.

[4] Section 57(4)(b) of the Land Titles Act.

[5] Section 57(4)(c) of the Land Titles Act.

[6] Section 57(4)(d) of the Land Titles Act.

[7] Sections 57(5.1) ad (6) of the Land Titles Act.

[8] Sections 57(7) and (8) of the Land Titles Act.

[9] Section 59(1)(a) of the Land Titles Act.

[10] Section 59(1)(b) of the Land Titles Act.

[11] Section 59(1)(c) of the Land Titles Act.

[12] Section 59(1)(d) of the Land Titles Act.

[13] Ontario, Land Registration Information, “How do I make a claim?”, online: http://www.ontario.ca/en/information_bundle/land_registration/content/STEL02_165931?openNav=land_titles_assurance_fund_(ltaf) (site accessed: 13 August 2009).

[14] Forms, Records and Procedures, R.R.O. 1990, Regulation 690, made under the Land Titles Act, R.S.O. 1990, c. L.5.

[15] Ontario, Land Registration Information, “How do I make a claim?”, online: http://www.ontario.ca/en/information_bundle/land_registration/content/STEL02_165931?openNav=land_titles_assurance_fund_(ltaf) (site accessed: 13 August 2009).

[16] Ontario, Information Regarding the Land Titles Assurance Fund and the Tribunal’s Rules of Procedure, online: http://www.gov.on.ca/mgs/graphics/112478.pdf, pp. 10-11 (site accessed: 14 August 2009).

[17] Ibid.

written by admin \\ tags: land titles assurance fund, ltaf, oltaf, ontario land titles, ontario land titles assurance fund, real estate fraud

The only means of compelling an Ontario defendant to attend examinations for discovery or trial in Ontario in respect of foreign court proceedings is by the issuance of the letters rogatory (letter of request) by the foreign issuing court, which then must be recognized and enforced by an Ontario court. The same applies for an Ontario court to compel a foreign non-party to attend an examination for discovery (as a non-party) or trial in Ontario.

There are no bilateral agreements for extra-judicial cooperation between Canada and the United States, and Canada is not yet a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (18 March, 1970). Therefore, if a Canadian plaintiff wishes to examine a foreign witness (who is not a named defendant in the action), they must obtain a Letter of Request (Letters Rogatory) issued by the foreign court and then retain counsel in Ontario to apply to the Ontario court to give effect to the Letter of Request (Letters Rogatory). See also, Pam Pengelley, entitled “A Compelling Situation: Enforcing American Letters Rogatory in Ontario” (2006), 85 Can. Bar. Rev. 345, which provides a good overview of the key principles and recent caselaw; and Presbyterian Church of Sudan v. Rybiak (2006) 215 O.A.C. 140, 33 C.P.C. (6th) 27, 275 D.L.R. (4th) 512, 2006 CarswellOnt 5781 (Ont. C.A.) which is the leading Ontario authority for the judicial test to determine whether a request for international judicial assistance via letters rogatory should be given effect.

With respect to business records, the “Business Records Protection Act“ [“Ontario BRPA”] was the first of many blocking statutes enacted specifically to thwart United States discovery. The BRPA was enacted after the District Court in the Southern District of New York District Court ordered the Canadian subsidiaries of a New York corporation to produce documents located in Canada in a grand jury antitrust investigation: see, In re Grand Jury Subpoenas Duces Tecum Addressed to Can. Int’l Paper Co., 72 F.Supp. 1013 (S.D.N.Y. 1947).

There are two cases which have applied the Ontario BRPA:

The first is a Quebec Court of Appeal case, 2632-7502 Québec Inc. c. Pizza Pizza Canada Inc. 1993 CarswellQue 285, 7 Q.A.C. 313, [1993] R.D.J. 568, 103 D.L.R. (4th) 45, J.E. 93-1305 (Que. C.A.) [“Pizza Pizza Canada”]. Although the Pizza Pizza Canada case supports the argument that provincial blocking legislation prohibits disclosure or removal of business records outside of the province based upon the principles of comity; this case is no longer good law (at least inter-provincially), since it relied upon the British Columbia Court of Appeal decision in Hunt v. N plc (1991), 3 B.C.A.C. 138, 7 W.A.C. 138; 81 D.L.R.(4th) 763 (C.A.), which was later reversed on appeal by the Supreme Court of Canada: Hunt v T & N plc, 109 D.L.R. (4th) 16, [1994] 1 W.W.R. 129, [1993] 4 S.C.R. 289, 37 B.C.A.C. 161, 85 B.C.L.R. (2d) 1, 161 N.R. 81, 1993 CarswellBC 294, 1993 CarswellBC 1271, 21 C.P.C. (3d) 269, 60 W.A.C. 161, [1994] B.C.W.L.D. 110, J.E. 93-1890, 4 W.D.C.P. (2d) 603, [1993] S.C.J. No. 125, EYB 1993-68597 (S.C.C. Nov 18, 1993). [“Hunt v. T & N plc”] The Supreme Court of Canada held the Quebec Business Concerns Records Act (the Quebec equivalent to the Ontario BRPA) did not meet the constitutional standards of “order and fairness”. Where a court order is sought under the Quebec BCRA, a judicial order in another province would be denied effect with no discretion given. The province could not avoid the constitutional mandate by such a preemptive strike. The whole purpose of blocking statutes is to impede successful litigation in other jurisdictions by refusing compliance with orders issued there. While this is part of sovereign right, it runs counter to comity. The rules of private international law must be adapted to the Canadian federation’s structure. The Court held that the presence of such blocking statutes is anachronistic where their application harms interprovincial litigation. Therefore, the Supreme Court of Canada held that the Quebec BCRA is “constitutionally inapplicable in other provinces”.

However, it is arguable that the Hunt v. T & N plc case may be distinguished as a case dealing with “full faith and credit” between two sister provinces (i.e. inter-provincial jurisdictions) but the principles of comity do not extend as far in international or transnational litigation, particularly since constitutional issues are irrelevant and the BRPA has neither been struck down nor repealed.

The second is the Ontario decision in Local Court of Stuttgart of the Federal Republic of Germany v. Canadian Imperial Bank of Commerce 1997 CarswellOnt 102 (sub nom. Germany (Federal Republic) v. Canadian Imperial Bank of Commerce), 31 O.R. (3d) 684, (sub nom. Germany (Federal Republic) v. Canadian Imperial Bank of Commerce) 23 O.T.C. 364 (Ont. Gen. Div.); aff’d 1998 WL 1719090 (Ont. C.A.), 1998 CarswellOnt 1999 (Ont. C.A.) [“Germany (Federal Republic) v. CIBC”]. In Germany (Federal Republic) v. CIBC, the Local Court of Stuttgart, Federal Republic of Germany made application for letters of request for judicial assistance, to require the attendance for examination and production of documents of the accused, Rudolf Kretz, who was alleged to have engaged in a fraudulent scheme in Germany which caused considerable losses to German investors. Lax, J. granted the application. The trial judge found that there was a pending criminal matter before a German court which met the requirement of s. 46 of the Canada Evidence Act (CEA). Justice Lax also found that the German court was a court of competent jurisdiction within the meaning of s. 46 of the CEA. Without the order, the German court would not have had evidence of either the respondent or key documents. The Germany (Federal Republic) v. CIBC case is clearly distinguishable as a case dealing with extra-judicial assistance involving a foreign criminal extradition matter.

It is advisable to consult with and retain a qualified lawyer in your local jurisdiction specializing in international litigation to provide you with sound legal advice for your particular situation.

Antonin I. Pribetic

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to retaining a personal injury attorney, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Ontario personal injury attorneys registered on the website who can assess your situation and, if need be, represent you in court proceedings or help settle your case.

Personal Injury Attorneys: who are they?
A personal injury attorney is trained to represent parties (e.g. individuals, corporations, partnerships, etc.) in a civil dispute.   In civil cases, unlike criminal cases (where the state or government is the party that is prosecuting an accused person), one or more parties sue each other and the state is typically not a party to the proceedings.

What Personal Injury Attorneys can do for you
Some of the things which personal injury attorneys can assist you in include (but are not limited to) the following:

1. Determining and advising you on your rights and whether you have a claim (e.g. for damages, for declaratory relief, for an injunction, for equitable remedies, etc.).
2. Explain the civil law process from the time you believe a claim arises through to trial, and finally to a court order and (perhaps) appealing a court order (if it gets there).
3. Negotiating with the opposing counsel to reach a settlement.
4. At trial, challenge witness’ credibility and testimony.
5. At trial, present expert evidence in the form of expert testimony and reports that are favourable to their client.
6. At trial, point out past cases (called precedents) that are in their client’s favour and draw analogies and parallels, while trying to distinguish unfavourable precedents.
7. At trial, protect their clients from answering inappropriate or irrelevant questions (e.g. questions that would tend to self-incriminate a party, questions which have nothing to do with the trial, or questions which makes the party give testimony which they are not competent or otherwise qualified to give, etc.).

The onus of proof
In Ontario civil trials, parties must generally establish the elements of their case on a balance of probabilities.  This means 50% + 1 %.  Hence, to establish that a party was negligence or breached a contract, it must establish that that party was more likely than not to have done so.   If, however, the elements of the offence are established, then a judge or jury may still find no liability or reduce damages accordingly if the other party had some type of justification or excuse (e.g. undue influence, duress, etc.).

When to consult with or hire a Personal Injury Attorney?
Immediately on becoming aware of the fact that you have been injured or suffered damages, you should consult with a personal injury attorney.  They can help take away your stress by explaining the law (e.g. your rights, your obligations, your entitlements, etc.), helping to formulate a proper strategy, and telling you about how the civil law process works from start to finish.  Again, if you need legal advice with respect to retaining a Toronto personal injury attorney, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

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The monetary jurisdiction of the Small Claims court is presently set at $10,000 (just check out Ontario Regulation 626/000, which is made under the authority of the Ontario Courts of Justice Act).  That’s going to change to $25,000 on January 1st, 2010.  This will bring Ontario’s monetary jurisdiction for Small Claims court matters up to where other provinces – namely, Alberta, British Columbia, and Nova Scotia – have put their limits.  This increase is supposed to enhance access to justice by creating a more informal process for initiating lawsuits dealing with relatively small amounts of money.

At present, if damages are sought in small claims court for more than $10,000, then the court may be called upon to either (1) require that party to amend their pleadings (e.g. their Plaintiff’s Claim) so that they are not asking for more than $10,000 or (2) require that party to bring their claim in Superior Court (which entails additional costs for doing so).

Also worth noting is that, with the increase in monetary jurisdiction will come an increase in the potential costs that can be awarded by a court.   At present, s. 19.02 of the current Small Claims Court Rules limit costs according to s. 29 of the Ontario Courts of Justice Act, which states that an award in small claims court “shall not exceed 15 per cent of the amount claimed…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”.  These figures don’t include awarding recovery for disbursements.  So going from $1,500 in maximum costs now to $3,750 (or 15% of $25,000) by next January may be a significant consideration when people decide whether to start or maintain their claims.  For more information, check out my previous blog about costs in small claims court.

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Over the next few blogs, I thought it would be worthwhile to discuss the small claims court process in Ontario.  So, beginning with this blog, I thought about listing some resources I came across on the Internet dealing with small claims court in Ontario.

Remember: if you have questions about small claims court or if you want help with respect to your small claims court matter, you should make a post on Dynamic Lawyers (to get in touch with a small claims court lawyer) or Dynamic Paralegals (to get in touch with a small claims court paralegal).

So here are the resources you should look into with respect to small claims court in Ontario:

1. Rules of the Small Claims Court (make sure you’re looking at the most up-to-date version!).  Remember that the Rules of the Small Claims court are simply regulations made by the government under the authority of the Courts of Justice Act.  There may be additional provisions in the latter which affect or impact Small Claims Court proceedings in Ontario.
2. Ontario Small Claims Court Forms.  Make sure that these are the most up-to-date forms!
3. Before Making a Claim in Small Claims Court – Ministry of the Attorney General website.
4. List of Small Claims Courts – Ministry of the Attorney General website.
5. Small Claims Court Guides to Procedures – Ministry of the Attorney General website.  This is a great resource and you’ll need Adobe Acrobat Reader to view the guides.  The guides themselves cover the following topics:

• What is Small Claims Court
• After Judgment – Guide to Getting Results
• Guide to Making a Claim
• Guide to Replying to a Claim
• Guide to Serving Documents
• Guide to Motions and Clerk’s Orders
• Guide to Getting Ready for Court
• Guide to Fee Schedules
• After Judgment – Guide to Getting Results

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