Here’s Legal Form + Video Guide #16:

Plaintiff’s Claim – Unpaid Account Disputes (Ontario Small Claims Court)

This Court Form Package can be used by a party who wants to start a lawsuit in Ontario’s Small Claims Court concerning an Unpaid Account dispute.   This package comes with a FREE VIDEO GUIDE (watch a useful example of how this court form can be customized), a FREE DL GUIDE (read helpful information about this court form), and another FREE DL GUIDE that offers valuable insight into preparing for and attending Ontario’s Small Claims Court.  What are you waiting for?   Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

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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…

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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…

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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 buying, selling or renting real estate, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario real estate lawyers registered to help you with your purchase, sale, and lease of real estate.

In this blog, I’ll be talking about the exclusivity clause in buyer representation agreements.

Taking a step back, a buyer representation agreement is the agreement which a Real Estate Salesperson wants their clients (a person looking to buy a home) to sign.  It can be signed at any time but it must definitely be signed before an offer is made: s. 14 of the Code of Ethics made under the Real Estate Business and Brokers Act, 2002. It gives the Real Estate Salesperson the exclusive authority for a set period of time to work on your behalf.  This protects the Real Estate Salesperson and helps to guarantee that they will get paid.

The standard OREA form that Real Estate Salespeople use includes an exclusivity clause.  This clause means that the principal (i.e. the client) gives the Salesperson the exclusive and irrevocable authority to act as their agent for a set period of time. The client will also represent and warrant in this agreement that they are not a party to another buyer representation agreement or similar agreement.

Sometimes, a buyer who signs this agreement will breach it by engaging another Realtor and concluding a deal through them. The problem here is that the buyer (1) had a buyer representation agreement with another Realtor and (2) may have lied to their present Realtor by indicating that they did not have such a deal.  The next thing the buyer realizes is that they are being sought after and perhaps even sued in small claims court by the original Realtor for the commissions that should have gone to them.

Problems can arise where a buyer and Realtor never sign a buyer representation agreement.  Take the case of Stoicevski v. Nelson, 2007 CarswellOnt 8606.  There, a buyer engaged Realtor “A” to look for properties on his behalf.  No buyer representation agreement was ever signed.  Realtor “A” identified numerous suitable properties, arranged inspections for the buyer, and made various offers on behalf of the buyer (which were never accepted).  Four of those failed offers were made in respect of one property and all of them were accompanied by a “Confirmation of Co-operating and Representation” agreement, which indicated that Realtor “A” would receive a commission if a deal went through. The buyer, looking to save some money, engaged Realtor “B” (who would accept a lower commission) to make an offer on his behalf for that property.  Using Realtor “B”, the buyer submitted an offer which was accepted. Realtor “A” then sued the buyer for lost commissions.  The Ontario Superior Court of Justice found that, even though no buyer representation agreement had been entered into between the buyer and Realtor “A”, the buyer was still liable to pay Realtor “A” the commission owed.  The Court reasoned that the buyer’s expectation to pay Realtor “A” commissions if a deal had gone through, coupled with the buyer’s actions – namely, working with Realtor “A” (both generally and specifically with respect to the property that was ultimately purchased) and then engaging Realtor “B” to save money – constituted an unjust enrichment. This case demonstrates that, in these circumstances, the absence of a buyer representation agreement may nevertheless make a buyer who engages multiple Realtors liable for commissions owed.

Overall, if a buyer is looking to get out a buyer representation agreement without the headache of litigation, they should get a written release of liability from the Realtor.  Assuming this release is obtained and entered into properly, it should prove to be a good defence in case litigation arises thereafter.

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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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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 small claims court rules, procedures, or representation, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto small claims court lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your small claims court matters.

In this blog, I’ll be discuss some of the relevant rules pertaining to costs in Ontario small claims court.  Small claims court matters deal with monetary damages of $10,000 or less.  Beginning in 2010, however, that monetary limit will increase to $25,000 in an effort to speed up the administration of justice and help reduce the backlog in the superior courts.

The rules concerning costs recently changed in Ontario.  At the moment, the following small claims court rules concerning costs are relevant:

• A successful part is entitled to have their reasonable disbursements (e.g. cost of service, expenses for travel, accommodation, photocopying, experts’ reports, etc.) paid for by the defendant: s. 19.01(1) of the Small Claims Court Rules [hereinafter "Rules"].
• Cost awards are limited by s. 29 of the Courts of Justice Act: s. 19.02 of the Rules.
• Section 29 of the Ontario Courts of Justice Act 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”.
• The court may award successful party an amount not exceeding $50 for preparation and filing of pleadings: s. 19.03 of the Rules.
• The court may award a reasonable representation fee at trial or at an assessment hearing if the amount claimed in an action exceeds $500, exclusive of interest and costs, and the successful party is represented by a lawyer: s. 19.04 of the Rules.
• The court may award up to $500 as compensation for inconvenience and expense if the successful party is self-represented: s. 19.05(a) of the Rules.

Remember: if you have any questions or concerns about costs in Ontario small claims court (or Toronto small claims court) or other small claims court-related issues, go to Dynamic Lawyers and make a post and get free information and quotes from Toronto small claims court lawyers.

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There are many avenues for average Torontonians to find not only a lawyer, but the right lawyer for their particular case.  Unfortunately, most of these avenues are inconvenient and sometimes very costly (e.g. an initial meeting with a lawyer could run you a few hundred bucks!).

More often than not, people find a lawyer through word of mouth referrals from family, friends, colleagues, or other professionals they do know (e.g. bankers, accountants, consultants, real estate agents, insurance agents, paralegals, other lawyers they know, etc.).  This, in fact, is how most lawyers find their clients.

Alternatively, people may turn to the Yellow Pages and simply pick an advertisement and make a phone call.  I’ve been told that people tend to pick the biggest advertisement because they somehow believe that the bigger the ad, the more successful the lawyer or law firm.

They may even turn to the Law Society of Upper Canada’s Lawyer Referral Service, which charges users $6 for a 30-minute conversation with one lawyer.

The point here is that finding the right lawyer for you is an important undertaking.  You don’t want to have the lawyer who drafted your will or acted on your house deal to represent you in a criminal case: they may not be up-to-date on court room procedure or have experience cross-examining adverse parties.

Torontonians generally only need a lawyer for a limited time and have a limited budget for such engagements. Yet it is hard for these people to distinguish lawyers and law firms from each other, especially given that many small and medium law firms have a general practice. It may also be intimidating for them to approach lawyers with their legal issues, given that doing so may cost money (e.g. $500 for the initial hour visit) and ultimately retaining a lawyer could be very expensive given the uncertainty of hourly billings.

These factors make ordinary Torontonians shy away from seeking or hiring lawyers. Those sophisticated Torontonians who surf the Web looking for a lawyer are hungry for more information than what is provided in the YellowPages or a newspaper advertisement. They are doing a Google or Yahoo search to seek out a particular type of attorney in a particular field in a particular area. They are also looking for testimonials and looking for the experience of a lawyer.

All in all, it makes perfect sense for users facing these challenges to turn to Dynamic Lawyers as a way of finding the right lawyer for the right price.  Making a post is free and anonymous, posts remain on the website for up to 45 days, and users have the opportunity to receive information and multiple quotes from local lawyers specializing in the area of law requested.  Comparing answers and then following up with the lawyer of your choice is just plain smart – particularly in a field where it is hard to compare one service provider from the next.  All in all, a very good deal…

So now that you have found the right avenue to find a lawyer in a convenient and cost-effective manner: what next?  Well, let’s talk about legal fees.  Many lawyers will charge you a fixed fee for the first consultation.  At this meeting, they’ll ask you questions about yourself and your situation.  The lawyer is trying to understand the legal issues so that he can offer you some type of recommendation on how to proceed.  If the meeting goes well, you may end up signing the lawyer’s retainer agreement, which stipulates the services that are going to be offered and the fees that are going to be charged.  The fees are typically hourly fees ranging from $200 to upwards of $1000 / hour, depending on the size of the law firm, where it’s located (and it’s physical appearance and amenities), and the particular lawyer’s expertise and reputation.

At the first meeting with the lawyer, you should ask some basic questions related to:

1. What services will the lawyer specifically provide;
2. Billing, costs and budget;
3. Time line;
4. Communication (e.g. by phone, e-mail, etc. and how regularly);
5. Past Experience in a particular field;
6. Strategy;
7. Style (e.g. aggressive trial lawyer or alternative dispute resolution lawyer); and
8. Terminating the retainer (e.g. failure to pay, failure to act, breakdown in the relationship, loss of confidence, etc.).

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Toronto law firms can help answer your legal questions, facilitate your transaction (e.g. business, real estate, wills and estates, family, etc.) or even represent you in court.  To find a Toronto lawyer or law firm, go to Dynamic Lawyers and make a post.  It’s free and anonymous and Toronto lawyers and law firms will respond to you with information and quotes for you to compare.

Here are some of the different types of legal services that Toronto law firms can offer:

• Accidents and Injuries: Involved in an accident where you suffered personal injury?
• Business: Need corporate or commercial agreements? Need to have a lawyer help you do a transaction?
• Charities and Not-For-Profit: Need to establish a Not-For-Profit corporation or obtain charity status?
• Civil Litigation – Higher Court: Have a serious legal claim that needs to be litigated in the Superior Court, Divisional Court, etc.?
• Civil Litigation – Small Claims Court: Have a legal claim (e.g. breach of contract, negligence, etc.) for less than $10,000?
• Constitutional / Human Rights and Freedoms: Challenging a law or government action / inaction?
  Criminal: Charged with a criminal offence? Appealing a conviction?
• Employment and Labour: Need an employment agreement? Unjustly terminated? Need to know your rights?
• Family: Going through a separation or divorce? Fighting to get custody or access? Dealing with spousal and child support?
• Government: Need to lobby the government? Need to resolve a dispute with a government agency?
• Highway Traffic Tickets: Charged with speeding or DUI? Need to fight traffic tickets?
• Immigration: Need to immigrate to Canada? Fighting against deportation?
• Insurance: Having difficulties with your Insurance company?.
• Intellectual Property: Need to register a copyright or trademark? Need help with a patent?
• Landlord and Tenant: Need a resolve a dispute? Need to know your rights?.
• Notary Public / Commissioner: Need to notarize or commission your documents?
• Real Estate: Need someone to facilitate your residential or commercial purchase, sale, or lease?
• Tax: Need help structuring your tax affairs? Need help resolving tax disputes with the Canada Revenue Agency?
• Wills, Estates and Trusts: Need a will? Need to update your will? Find out why having an up-to-date will is a must.

Try to consult with a couple of Toronto law firms and Toronto attorneys until you’re comfortable with whom you’re speaking with.  Toronto law firms differ in size, location, expertise, and reputation.  Go to Dynamic Lawyers and save time and money finding the right Toronto law firms and Toronto attorneys who specialize in the legal area you require!

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Toronto law firms can help answer your legal questions, facilitate your transaction (e.g. business, real estate, wills and estates, family, etc.) or even represent you in court.  To find a Toronto lawyer or law firm, go to Dynamic Lawyers and make a post.  It’s free and anonymous and Toronto lawyers and law firms will respond to you with information and quotes for you to compare.

Here are some of the different types of law that Toronto law firms can assist you in:

• Accidents and Injuries: Involved in an accident where you suffered personal injury?
• Business: Need corporate or commercial agreements? Need to have a lawyer help you do a transaction?
• Charities and Not-For-Profit: Need to establish a Not-For-Profit corporation or obtain charity status?
• Civil Litigation – Higher Court: Have a serious legal claim that needs to be litigated in the Superior Court, Divisional Court, etc.?
• Civil Litigation – Small Claims Court: Have a legal claim (e.g. breach of contract, negligence, etc.) for less than $10,000?
• Constitutional / Human Rights and Freedoms: Challenging a law or government action / inaction?
  Criminal: Charged with a criminal offence? Appealing a conviction?
• Employment and Labour: Need an employment agreement? Unjustly terminated? Need to know your rights?
• Family: Going through a separation or divorce? Fighting to get custody or access? Dealing with spousal and child support?
• Government: Need to lobby the government? Need to resolve a dispute with a government agency?
• Highway Traffic Tickets: Charged with speeding or DUI? Need to fight traffic tickets?
• Immigration: Need to immigrate to Canada? Fighting against deportation?
• Insurance: Having difficulties with your Insurance company?.
• Intellectual Property: Need to register a copyright or trademark? Need help with a patent?
• Landlord and Tenant: Need a resolve a dispute? Need to know your rights?.
• Notary Public / Commissioner: Need to notarize or commission your documents?
• Real Estate: Need someone to facilitate your residential or commercial purchase, sale, or lease?
• Tax: Need help structuring your tax affairs? Need help resolving tax disputes with the Canada Revenue Agency?
• Wills, Estates and Trusts: Need a will? Need to update your will? Find out why having an up-to-date will is a must.

Try to consult with a couple of Toronto law firms and Toronto attorneys until you’re comfortable with whom you’re speaking with.  Toronto law firms differ in size, location, expertise, and reputation.  Go to Dynamic Lawyers and save time and money finding the right Toronto law firms and Toronto attorneys who specialize in the legal area you require!

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Legal People?  Who are they and what are they capable of?

Well, here’s a short description of the more popular legal people that you’ve always wondered about but never really knew what it was all about:

Lawyer: A person who goes to school for a long time to get trained in analytical and legal reasoning. Lawyer services can be used for various legal issues – ranging from facilitating transactions (like buying or selling a home), representing parties in trial or administrative proceedings or providing answers to legal questions.  Lawyers are very good at reading, writing, researching, thinking, and speaking (both on their own behalf and on behalf of their clients).

Judge: A lawyer who acts in the capacity as a trier of fact/law and renders judgment in cases.  A judge is presumed to be impartial, neutral, and unbiased. They are supposed to conduct trials in a fair and efficient manner to all parties, and (in certain circumstances) weigh the evidence and assess the credibility of witnesses and their testimony.  If an accused is convicted in criminal court, a judge is also responsible for handing down a sentence i.e. prison term, monetary, etc.  In civil cases, a judge must determine what, if any, compensation, award, damages, declaration or other order is warranted in the circumstances.

Paralegal: Is not a lawyer.  In Ontario, they were only recently required to be licensed by the Law Society of Upper Canada.  They are capable of representing parties in Small Claims Court matters (i.e. less than $10,000), minor criminal matters, adjudicative proceedings before Ontario or Federal boards and agencies, provincial highway traffic offences, and statutory accidents and benefits claims.  Paralegals are often found assisting lawyers with their files and typically work under their supervision.

Justice of the Peace (JP): Is an appointed official (sometimes elected, depending of the region) that deal with certain minor court-room matters, such as scheduling a date for trial, hearing and trying provincial offences, performing civil marriages, etc.  It is not necessary for a JP to have a formal education in law or to have been a lawyer (as is required to be a judge).

Notary Public: Is a public officer who performs non-litigious matters e.g. powers- of-attorney, administering oaths, verifying documents (passports), etc.  Notary Public’s do not necessary have to be lawyers, however lawyers qualify as notary republics so long as they fill in the application, pay the $150 (or whatever it costs) government fee, and get themselves an embosser (around $60 at Staples Business Depot).

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