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…
Related posts:
