You can now sue for up to $35,000.00 in the Ontario Small Claims Court

The Ontario small claims court monetary jurisdiction is now $35,000.00. Each Plaintiff in the Toronto Small Claims Court, Brampton Small Claims Court, Richmond Hill Small Claims Court, Newmarket Small Claims Court, and other Ontario small claims courts can now sue for up to $35,000.00 per person. You can also seek the return of personal property not exceeding $35,000.00 in value.

The monetary jurisdiction of the small claims court Ontario increased on January 1, 2020.

Paralegal Representation

Every day our office receives calls from small businesses wanting to hire us to sue for unpaid accounts, accounts receivable, loans, and more in the Small Claims Court Ontario.

 If you are in Toronto or the GTA and you need to hire an experienced, licensed paralegal contact me:

Marshall Yarmus
Civil Litigations

(416) 229-1479

https://www.civilparalegal.com/our_services/small-claims-court/

Do’s and don’ts of small claims court

Is small claims court now too complicated for the average person to represent himself or herself? Many people’s only interaction with the civil courts in Ontario will be through small claims court.

Is small claims court now too complicated for the average person to represent himself or herself? Many people’s only interaction with the civil courts in Ontario will be through small claims court. Currently you can sue for money damages of up to $25,000 or the return of personal property not exceeding that amount. Ontario small claims court bears no resemblance to American television shows. The judge does not take an active role in questioning witnesses. You do.

Cases can be won or lost based on your ability to effectively question the opposing side’s witnesses. Small claims court is far less complicated than the Ontario Superior Court of Justice. But that may be of little comfort to the litigant who is trying to go through the steps of bringing an action to trial, obtain judgment and successfully collect their money. At the courthouse, many people can be seen clutching court forms, trying to navigate their way through the system. The court clerks can only give general information on procedures, not legal advice.

When cases become too complicated, people and companies often hire a licensed paralegal or a lawyer to represent them. They are the experts at navigating this mine field.

At the first hearing of a defended claim, the parties meet in front of a deputy judge or mediator to try to settle the case. At this settlement conference judges sometimes urge a person with a complicated case to hire a paralegal or lawyer. Trials are measured in hours, a day, or multiple days. The formal procedures for hearing evidence, marking documents as exhibits and questioning witnesses take far longer than what is seen on so-called reality court television shows.

Dr. Julie Macfarlane released a report on self-represented litigants in 2013.In it she found, unsurprisingly, that the majority of litigants who decide to self-represent do so because they cannot afford representation. Another reason for people self-representing was that they were attracted to the do-it-yourself approach. Many believed they could handle the case themselves because so much information was available on the Internet.

But a losing party at trial has more to worry about than paying the opposing side’s representation fee. A self-represented party can lose a case in large part due to not knowing how to properly present it to the judge. This requires calling the necessary witnesses, asking them the right questions, knowing what to ask witnesses appearing for the other side, presenting the relevant documents and summarizing the law and the facts to the judge.

Many people know they can hire a lawyer but many don’t know licensed paralegals can represent them in small claims court.

Those who choose to self-represent against a seasoned paralegal or lawyer are at a severe disadvantage. Many people think success in small claims is easier than the reality.After almost every trial there is one party who is unhappy. Settlement should be encouraged at every stage of the action.

The problem is not the court system. The rules and procedures are there to make sure the process is fair. But litigants need to understand that when a case becomes too complicated to represent themselves, they should hire a legal professional. Finally, the smartest and happiest litigants are usually those who compromise and come to a settlement before trial.

January 7, 2016  Copied from http://torontosun.com/2016/01/07/dos-and-donts-of-small-claims-court/wcm/a3946a31-7e95-44c7-aa5a-faba31f407ee

Paralegals able to help during court matters

Individuals and businesses use the small claims court to sue for money owed for a wide variety of reasons where the amount owing is $25,000 or less. The court also has the power to order return of property not exceeding that value.

  • Published in the The Intelligencer (Belleville)
  • 14 Jun 2016
  • MARSHALL YARMUS — Marshall Yarmus is a licensed paralegal specializing in small claims court. His company, Civil Litigations, operates in Toronto.

Individuals and businesses use the small claims court to sue for money owed for a wide variety of reasons where the amount owing is $35,000 or less. The court also has the power to order return of property not exceeding that value.

The government just announced starting a new court action can now be done online for all types of claims province-wide, through a secure government website.

The Ontario government wants to make the court more accessible, by offering this new online filing service. However, just because it is easier to file documents doesn’t mean the small claims court procedures are easy to navigate.

Many people attempt to represent themselves in the small claims court. They have that ‘do it yourself’ attitude. They mistakenly believe the small claims court is like American courtroom reality television. Nothing can be further from the truth. Forms must be filed correctly. Procedures must be followed. A trial in Ontario looks nothing like television.

Court staff can give you general information procedures on how to complete forms, but they are not supposed to give legal advice.

This doesn’t stop people from asking court staff for legal advice when the case becomes complicated. A staff member may even give advice which they shouldn’t. Since court staff are not legally trained, the advice given, although well meaning, may be wrong. Unless the person gets professional legal advice the error may prove costly.

When your case becomes complicated, or you need someone who has knowledge of the rules of the court, the evidence and witnesses needed, and the particular law concerning the facts of your case you should turn to a licensed paralegal or a lawyer.

Ontario is the only jurisdiction in North America where a paralegal is a trained and educated professional, who is licensed, insured, and regulated. Paralegals are authorized to provide legal services directly to the public. A paralegal in Ontario can represent you with your legal matter by offering you legal advice, filling out forms, and representing you at trial in certain courts (including small claims court) and tribunals.

The small claims court process starts out by completing and issuing a Plaintiff’s Claim. The party being sued must file a defense with the court within 20 days of service. If this is done, the matter will be scheduled for a settlement conference before a judge or a mediator. This, in my opinion, is the most important hearing. Selfrepresented litigants may not recognize its significance.

A judge at a settlement conference has the power to make a number of orders, including dismissing a claim which has no merit, and to order the opposing side to produce documents which helps your case. If you don’t know to ask the judge to make a specific order, this may hurt your case.

The settlement conference is a great opportunity to allow the parties to come to an agreement on their own. It is a much better outcome than having a trial judge impose a decision. You could go to trial and get an order the other side owes you money. It is then up to you to collect through the process available through the court.

If the case is not settled, you will end up at trial. Here, you must present your case to the judge in an organized and understandable manner. Licensed paralegals and lawyers who specialize in small claims court representation know how to prepare a case for trial. They know how to question the opposing side’s witnesses. Cases are often won or lost based on this skill which can take years to learn properly.

Do you have a general question about small claims court procedures? Call 416-229-1479 e-mail me at Marshall@CivilParalegal.com Our website is www.CivilParalegal.com

Questions commonly posed to paralegals

The small claims court does not collect a judgment for you. You must take steps to collect. There are four methods available through the court. They are: writ of seizure and sale of lands, a writ of seizure and sale

In this article I will address some frequently asked questions paralegals who specialize in small claims court representation receive.

I have a judgment. How do I collect my money?

The small claims court does not collect a judgment for you. You must take steps to collect. There are four methods available through the court. They are: writ of seizure and sale of lands, a writ of seizure and sale of personal property, a garnishment and a judgment debtor examination. How much information you have on the debtor will determine which is the best method for your case.

A writ of seizure and sale of lands effectively acts as lien against real estate owned by the debtor. You are allowed to force the sale of the property. However, the cost to you to do that is so much that forcing a sale is rarely pursued.

A writ of seizure and sale of personal property is, in my opinion, a last resort. The sheriff is not allowed to enter a person’s home to seize anything. In the case of an individual debtor this method is usually restricted to seizure and sale of a car. To seize a car you will need to do searches to prove the debtor owns the car outright. It cannot have a lien against it. The sheriff will want between a $1,000 and $3,000 deposit before seizing and selling a car.

A garnishment is a court order forcing either an employer, a bank, or a company who owes money to be a business debtor for accounts receivable to pay the money to the court. If you have the necessary information, this is the best tool to force payment of the judgment.

A judgment debtor examination allows you to ask almost any questions of the debtor regarding their past, present and future ability to pay. Used properly by someone who knows what to ask this is powerful method to collect information to help you enforce the judgment. However, since debtors don’t always show up for the scheduled hearing, you should only use this if you don’t have information on the debtor.

How much does a paralegal charge for a small claims court case?

Like every profession, different people charge different rates. You usually get what you pay for. The lowest priced paralegal may not be the best choice. Some of the factors paralegals consider in determining their price are: their years of experience, whether they specialize in that area, the difficulty of the matter and importance of the matter to the client, and special circumstances, such as the loss of other retainers, postponement of payment, uncertainty of reward, or urgency.

Paralegals may charge based on an hourly rate, a flat fee for a particular portion of the case or the entire case, or on a contingency basis.

An hourly fee seems straight forward. However, small claims court cases often do not proceed as planned. There could be unexpected motions to the court, an amendment of a claim or defence, the need to defend a claim by brought by the Defendant, or more than one settlement conference.

In a flat fee also known as a block fee arrangement, the paralegal may take the risk by changing a known and agreed fee in advance that unexpected things don’t happen that require more of their time than expected.

A contingency fee is where a paralegal’s fee is based on a percentage of the amount recovered from the debtor. The paralegal is entitled to request the client pay the out of pocket expenses in advance. Since the paralegal is taking the risk here and delaying payment of any fees until money is recovered, you could pay the most fees though this method.

How do I collect my Small Claims Court or Landlord and Tenant Board judgment?

First, does the debtor own a house, condo or any land in Ontario? If the answer is yes, you may choose to issue a Writ of Seizure and Sale of Lands, and file it with the sheriff in the jurisdiction where the debtor owns property.

The Toronto Small Claims Court deals with thousands of cases a year. It is part of the small claims Ontario system.

There are many advantages to be represented by a paralegal Ontario, however many people represent themselves.

A question I am asked several times a week is “How do I collect my judgment?” There are several methods to do this.

First, does the debtor own a house, condo or any land in Ontario? If the answer is yes, you may choose to issue a Writ of Seizure and Sale of Lands, and file it with the sheriff in the jurisdiction where the debtor owns property.

This acts like a lien. The debtor will not be able to sell the property or obtain a mortgage from a new lender without paying off the judgment in full, including daily interest. The writ expires in six years. It can be renewed before or after expiry, if necessary.

If you don’t know whether your debtor owns lands, our firm can do a search to find hidden properties owned by the debtor in Ontario.

Often the quickest method to collect a judgment is to issue a Notice of Garnishment. In order to do this you need to know where the debtor works or where they bank. To garnish a bank account you must know the bank and branch location where account is located.

If your debtor is a business you may consider garnishing accounts receivable, or rent paid to the company.

Another choice is to have the sheriff seize and sell personal property of the debtor. This may be a worthwhile method if the debtor is a business, and you know exactly what assets the business debtor owns. You must be willing to put up a large cash deposit with the sheriff. You also need to do searches to prove that there are no liens against the property.

There is a lot of false information out there about the powers of the sheriff to seize items under a Writ of Seizure and Sale of Personal Property. The sheriff can only enter a business address. It has no proper to enter a residence. The Execution Act lists a number of things a sheriff has no power to seize.
The Creditors’ Relief Act, 2010 sets out how money is to be paid out by the sheriff if there are multiple creditors.

If you want the sheriff to seize and sell an automobile, you need the make, model, and VIN number. In addition to the large cash deposit you will have to provide the sheriff, you will also be required to do searches proving the vehicle is solely owned by the debtor, and there are no liens on the vehicle.
If you have no information about the judgment debtor’s assets, you will probably choose to issue a Notice of Examination. This enforcement method is usually a last resort as it has its share of drawbacks. You will need to serve the debtor with the Notice of Examination either personally, or if served at the debtor’s residence it can be left with an adult member of the household, provided you mail another copy within 24 hours.

The debtor may show up for hearing. If they do that is great. A skilled paralegal Ontario knows how to get the debtor to answer questions about their ability to pay the judgment. They will spend some time asking questions of the debtor. Afterwards, the creditor or their representative may ask the judge for an order for monthly payments. There are both advantages and disadvantages to obtaining such an order.

The paralegal Ontario may also ask the judge for an order for the debtor to produce documents.
If the debtor does not attend for the hearing, a Notice of Further Examination Hearing or Contempt Hearing may be ordered. The process varies across the province. At some point if the debtor fails to attend a Contempt Hearing, a warrant for their arrest may issue.

This has been a brief overview of the major judgment enforcement options. There are many books that have been written about the art of judgment enforcement. This is not intended to be legal advice.
If you need help collecting your judgment, contact us at 416-229-1479 or visit our website at http://civilparalegal.com/home_services/judgement-enforcement/

Be Prepared for the Unexpected Before the Small Claims Court

There are many types of witnesses. At one recent trial I had before the Toronto Small Claims Court I had the opposing paralegal seek to have a witness declared as “an expert.” In another case before the small claims court Ontario

There are many types of witnesses. At one recent trial I had before the Toronto Small Claims Court I had the opposing paralegal seek to have a witness declared as “an expert.” In another case before the small claims court Ontario I had the opposing representative seek to declare a witness as a “hostile witness” or “an adverse witness.”

In both cases I was given no advance notice that these requests would be made. If you were self-represented, would know how to respond? Would you have consented or opposed these requests?

This week I was retained shortly after settlement conference by a party who had learned at the settlement conference hearing that a Defendant’s Claim had been issued against them. They had already been noted in default. This means that they are prevented from filing a defence without a judge’s order or the consent of the opposing side. They hired me to take the necessary steps to set aside the noting in default and allow them to file a Defence.

“Did you ask the judge at the settlement conference for an order allowing you to file a late defence?” I asked the client. The client responded by saying “The judge never said I could do that.”

It is not the judge’s job to give you legal advice or explain the Small Claims Court Rules. Had this client known a settlement conference judge has the power to make a variety of orders they could have saved money.

My point today is that any number of things can happen during Small Claims Court proceedings that you will not expect and will probably not know how best to respond to protect your interests.

You need an experienced licensed paralegal ontario representing you at all stages of an case; someone with a solid knowledge of the Small Claims Court Rules, Courts of Justice Act and the rules of evidence. We can help you.

What does it take to win at a small claims court trial?

As someone who has represented at probably more than a thousand small claims trials at the Toronto Small Claims Court and other small claims court ontario, I can tell you preparation is the most important thing.

What does it take to win at a small claims court trial?

As someone who has represented at probably more than a thousand small claims trials at the Toronto Small Claims Court and other small claims court ontario, I can tell you preparation is the most important thing.

Other important aspects are making sure you have all the witnesses you need, and documents necessary to prove your case. Make sure the evidence comes out through your witnesses in a logical way that the judge can follow.

Preparation starts with the writing of the Plaintiff’s Claim or Defence. You will be limited to the facts you have plead in these documents.

The most important hearing to get ready for trial is the settlement conference. You read that correctly. Settlement Conference is the most important hearing to obtain necessary orders to get ready for trial, to obtain information from the opposing side that will assist you in trial preparation.

You cannot tell the trial judge what was said at settlement conference. That does not stop you from using information you heard to help you prepare for trial.

You also need to know and be able to present to the judge what the law is. I know it is small claims court and you think the judge knows the law. You are thinking I don’t need to present statute or case law to the judge.

Maybe your case involves an area of the law the judge is very familiar with. Then again, maybe the judge isn’t familiar with the law regarding your case. The judge may not be aware of case law that helps your case. Presenting law to the judge during closing submissions can only help your case.

What else do you need to know? Some knowledge of evidence law is helpful. This is especially so if expert reports or expert witnesses are to be presented to the court. Knowledge of the small claims court rules also helps.

You will need to prepare for asking your witnesses questions. These questions cannot be leading.

You will need to prepare to ask the opposing witnesses questions. This is called cross-examination. Many cases are won or lost on the strength and experience of the person asking the cross-examination questions.

If you do not have the time, patience, or knowledge to prepare for trial I urge you to hire a paralegal ontario or a lawyer.

Our paralegal firm, Civil Litigations has 24 years experience we can help you. Our phone number is 416-229-1479. Our website is CivilParalegal.com

Suing a Contractor is often Complicated

It is that that time of the year when our paralegal office gets calls from home owners looking to sue contractors who have done work around their home. The small claims court Ontario deals with many of these types of cases.

It is that that time of the year when our paralegal office gets calls from home owners looking to sue contractors who have done work around their home. The small claims court Ontario deals with many of these types of cases. Often these cases start out easy, and become complicated before reaching trial.

There are many variations to this type of claim. Sometimes there is a written contract setting out exactly what the contractor was to do, and how they were to be paid. Too often though, there is poorly written contract or no contract at all. Sometimes there are just e-mail exchanges giving a vague idea what the contractor was hired to do.

If you want the contractor to do things that were not part of the original signed contract, be sure to sign “add on agreements,” which clearly state what the extra work to be done is and how much it will cost.

Contractors, unlike paralegals and lawyers, don’t have a tough regulator like the Law Society of Ontario. Ontario paralegals are required us to put all client money in a trust account until work is completed and an invoice is issued and delivered.

Disputes that I see in the Toronto Small Claims Court, Richmond Hill Small Claims Court, Brampton Small Claims Court, include the contractor just abandoning the job part way through. This is especially true when the contractor is paid a large portion of the fees upfront.

Did the contract do the work negligently? Do you need another contractor to redo the work? Before you hire another contractor to redo work, obtain legal advice immediately. You may need an independent expert’s report. Paying another contractor to fix the negligent work your original contractor may forever destroy evidence necessary to properly prove your case in court.

At trial you need an experienced paralegal Ontario. Some of the issues I see at trials involving a contractor include: whether the proper party or parties have been to sued, disputes about the work the contractor was hired to do, the contract price, the amount paid, what work was done and what was not done, whether certain work was done negligently, the cost to redo work, were there ad ons necessary or agreed to,  a Defendant’s Claim (if any), and minimizing damages.

We have been representing home owners in small claims court since 1996. Contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit our website at https://www.civilparalegal.com/our_services/small-claims-court/

The Art of Cross-Examination for Small Claims Ontario and the Landlord Tenant Board Ontario

I have called cross-examination an art. Others call it a science. Either way to do it properly takes years of practice. After twenty-two years in business I am still learning new techniques.

I have called cross-examination an art. Others call it a science. Either way to do it properly takes years of practice. After twenty-two years in business I am still learning new techniques.

Your ability or that of your Ontario paralegal to ask questions of the opposing side’s witnesses can be the difference between winning or losing your case.

Cross-examination is a tool that is only as good as the person wielding it. An experienced paralegal knows how to ask questions to obtain the answers helpful to their client.

The self-represented party who has little or no experience in court often does not know about the amount of preparation necessary to be good cross-examiner. They don’t know the skills necessary to elicit the answers needed.

Before we go further you must know the purposes of cross-examination. This tool is used to poke holes in the evidence of the opposing side’s witness. It is also used to gain admissions from the opposing side’s witnesses that strengthen your case.

Cross-examination is used in small claims court Ontario and the landlord and tenant board. It is also used in other courts and tribunals.

Do you need to ask questions of every opposing witness? No. The less seasoned legal representatives may feel pressure to ask questions of every witness. There is no need to cross-examine a witness that has not said anything to harm your case, and who has nothing to offer that would help your case.

Another novice problem I see is asking one too many questions. Though a carefully planned series of questions you may get a witness to admit an important fact. All can be lost if you ask one more question then necessary which allows the witness to say something that destroys your case.

How do you get the opposing side’s witnesses to admit facts favorable to your case? How do you ask questions based on documents? How do you use cross-examination to show a witness is not credible and should not be believed by the court or tribunal? How do you deal with a difficult to control witness?
There are many goods books that you can read to find answers to these questions. I recommend “Cross-Examination: Science and Techniques, 3rd edition.” However, there is no substitute for experience.

If you lack experience in cross-examining witnesses, we can help. Contact Marshall Yarmus (phone 416-229-1479 www.Civilparalegal.com) to represent you at your small claims court trial or landlord and tenant board hearing.

If hire a paralegal will I get the costs I pay to you awarded to me by the small claims court Ontario?

Costs are usually awarded to the successful party at a trial. Cost awards are in the discretion of the judge, and are subject to the Courts of Justice Act and the Small Claims Court Rules.
The winning party at a trial who is represented by a paralegal

This office receives this question almost daily from litigants at the Toronto Small Claims Court, Richmond Hill Small Claims Court and other courts.

Costs are usually awarded to the successful party at a trial. Cost awards are in the discretion of the judge, and are subject to the Courts of Justice Act and the Small Claims Court Rules.
The winning party at a trial who is represented by a paralegal, a lawyer, or a student-at-law, may be entitled to a representation fee intended to partially cover their legal fees.

In most cases the representation fee is capped at 15% of the amount of the Plaintiff’s Claim or the Defendant’s Claim.

Costs are always in the discretion of the judge to award or not under all the circumstances. The Courts of Justice Act, the Small Claims Court Rules, and case law provide judges with guidance on the costs to be awarded. There is no minimum costs that must be awarded.

The general rule is that an award of costs at trial in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed. That 15% of the amount of the claim cost award contemplated in the Courts of Justice Act and the Small Claims Court Rules can be increased if the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behavior in the proceeding.

Offers to settle properly made under rule 14.07 may attract double cost consequences of failure to accept.
If you hire a paralegal Ontario to represent you at trial where the amount claimed is $35,000.00, you may be entitled to a representation fee of 15% of $35,000.00 being $5,250.00.

If you make an offer to settle in accordance with Rule 14.07 and are successful at trial that $5,250.00 may be doubled to $10,500.00 in costs awarded in your favour.

Contrast that with costs awarded to a self-represented party at trial who may be awarded a limit of $500.00 for inconvenience and expense.

The winning party at a trial also usually gets their allowable out of pocket disbursements added to the judgment. This includes court fees, process serving capped at $60.00 per person served, and sometimes travel expenses, postage, and photocopies.

If you have paid a paralegal or a lawyer to prepare your Plaintiff’s Claim or Defence or Defendant’s Claim you may be awarded  a $100.00 preparation fee.

If you are requesting costs you will need to cite the specific act, rule, or the case law that allows for it.


This is meant to be general information on cost awards that the small claims court may award. This is not intended to be legal advice.
If you need help with costs awards or anything else dealing with a small claims Ontario proceeding, we would be honored to help you. Contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit our website at www.CivilParalegal.com

Small Claims Court Ontario Motion to Set-Aside Default Judgment

The most common orders sought at a motion are: to set aside a default judgment, set aside noting in default, terminate enforcement action, file a defence, strike out a claim or defence that has no merit, to extend a deadline to do something, to file a Defendant’s Claim.

A motion is a special hearing in small claims court where any party can request a specific order.

The most common orders sought at a motion are: to set aside a default judgment, set aside noting in default, terminate enforcement action, file a defence, strike out a claim or defence that has no merit, to extend a deadline to do something, to file a Defendant’s Claim.

Every motion starts with the party requesting the order to fill out the Notice of Motion and Supporting Affidavit form. This is issued by the court. You will be given a date and time for the hearing to take place.

The party who is requesting the order is called the Moving Party.

This Notice of Motion and Supporting Affidavit must be served on every Plaintiff and Defendant in the action. This includes serving it on a party that has been noted in default. That means it must be served on a Defendant even if they did not file a Defence and the Plaintiff had filed documents with the court asked that the Defendant be noted in default.
The party that is served with the Notice of Motion is called the Responding Party. They may serve and file an Affidavit in Response to Motion.

If an Affidavit in Response to Motion is served and filed, the person who initially brought the motion called the Moving Party, has one final opportunity to provide an affidavit replying to the Affidavit in Response. This is called a Supplementary Affidavit.

The facts that the judge will consider at a Motion Hearing are limited to the affidavit evidence contained in the Moving Party’s Notice of Motion and Supporting Affidavit , the Responding Party’s Affidavit in Response to Motion, and Moving party’s Supplementary Affidavit.

The judge will also consider the law, including any rules of the court and case law provided by the parties or their paralegal Ontario.

Check the court’s rules for information on how a motion is to be served, when the Notice of Motion and Supporting Affidavit, Affidavit in Response, and Supplementary Affidavit  must be served and filed with the court.

Let’s address the most common type of motion the court hears: a motion to set aside default judgment.

Small Claims Court Rule 11.06 deals with a motion to set aside a default judgment. The rule states:

“Setting Aside Noting of Default by Court on Motion

11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that,

(a) the party has a meritorious defence and a reasonable explanation for the default; and

(b) the motion is made as soon as is reasonably possible in all the circumstances.  O. Reg. 78/06, s. 24”.

This blog will not be addressing the huge amounts of case law regarding the tests to set aside default judgment. If you search case law you will find cases that discuss:

  • how rigidly the judge should apply the three part test
  • there are other tests not mentioned in the Small Claims Court Rules that a judge can consider
  • what is considered a meritorious defence
  • can the court consider a lower standard  then a meritorious defence, and
  • situations where the court must ignore the tests and automatically set-aside the default judgment

Do your case law research or hire a paralegal Ontario to represent you.

Note that Small Claims Court Rule 11.06 states that a default judgment may be set aside a default judgment “on such terms as are just.”

What does that mean? The court could order a Defendant to pay costs the Plaintiff to partially compensate the Plaintiff for their inconvenience and expense.

The “such terms as are just,” could also mean the judge will order the Defendant to be pay money into court to be held as security pending the outcome of the trial or settlement.

A judge can also order costs of the motion itself. A Plaintiff may be ordered to pay costs of the motion to the Defendant for opposing a motion that should not have been opposed.

The philosophy of the small claims Ontario is that of Natural Justice. Every case should be tried on its merits, whenever possible. The courts want cases decided based on hearing the evidence of every party.

This means that the overwhelming majority of motions to set aside default judgment will be granted. Often the only issue for the court to decide is the “such terms as are just.”

The court will decide what, if any, order to make regarding costs or security to be paid into court.

Knowing that most default judgments will be set aside I take steps my competitors don’t to minimize the likelihood of the Defendant ever filing a motion to set aside.

I rarely appear in motions court for my Plaintiff clients who have hired me to do everything from the start.

See details on my website.

My philosophy is simple. Why waste my client’s money and time. Knowing that motions to set aside will be granted, I don’t know why some representatives rush to the courthouse to sign default judgment.
If you require representation at a motion, or any other small claims court proceeding, contact Marshall Yarmus of Civil Litigations. www.CivilParalegal.com or call 416-229-1479

Do I need to proceed to trial if the Defence has no chance at success?

This motion is only to be used to strike out or dismiss a Plaintiff’s Claim, Defendant’s Claim or a Defence, where it is plain and obvious that the claim or defence has no chance at success at trial.

One of my recent blogs discussed small claims court Ontario motions in general. Let’s discuss today Rules of the Small Claims Court Rule 12.02 motion.

This motion is only to be used to strike out or dismiss a Plaintiff’s Claim, Defendant’s Claim or a Defence, where it is plain and obvious that the claim or defence has no chance at success at trial.

Rule 12.02 states:

“12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.  O. Reg. 78/06, s. 26.

(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:

  1. In the case of a claim, order that the action be stayed or dismissed.
  2. In the case of a defence, strike out the defence and grant judgment.

2.1 In the case of a motion, order that the motion be stayed or dismissed.

  1. Impose such terms as are just. O. Reg. 78/06, s. 26; Reg. 44/14, s. 11 (2).”

One way the courts determine whether it is plain and obvious that a claim or defence cannot succeed at trial is to look at a Plaintiff’s Claim for example and ask themselves, if I accept everything written in the Plaintiff’s Claim as true and proven, is it possible for the Plaintiff to succeed?

There is some good case law to rely on if bringing this type of motion. Have your Paralegal Ontario look up the case law and rely on it at the hearing.

If a claim or a defence is struck out/dismissed at this motion this can be considered a final order of the court. Normally, the limit on costs a motion judge can award is minimal.

However, if a Rule 12.02 motion order is a final determination of the case, the court has the power to order substantially more costs. See my blog on costs http://www.civilparalegal.com/if-hire-a-paralegal-will-i-get-the-costs-i-pay-to-you-awarded-to-me-by-the-small-claims-court-ontario/ or consult with your paralegal.

We should see more of these motions at the Toronto Small Claims Court, Richmond Hill Small Claims Court, and the Brampton Small Claims Court in the future.

If you need representation on a Rule 12.02 motion or any other small claims court matter contact Marshall Yarmus of Civil Litigations at 416-229-1479 or www.CivilParalegal.com

What are your rights when a business makes false, misleading, deceptive or unconscionable representations to you?

Let’s examine the Consumer Protection Act, 2002. This Ontario law is often plead in either the Plaintiff’s Claim or Defence in small claims court Ontario.

Let’s examine the Consumer Protection Act, 2002. This Ontario law is often plead in either the Plaintiff’s Claim or Defence in small claims court Ontario.

The Consumer Protection Act, 2002 has many parts that deal with many types of consumer transactions. This article will only deal with false, misleading, deceptive representations, and unconscionable representations.

The definition of a consumer in the act is:  “An individual acting for personal, family or household purposes and does not include a person who is acting for business purposes.”

The act prohibits false, misleading or deceptive representations, and unconscionable representations.

Sections 14 and 15 of the Consumer Protection Act, 2002 outline these prohibited representations. It states:

“14. (2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

  1. A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.
  2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.
  3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.
  4. A representation that the goods are new, or unused, if they are not or are reconditioned or reclaimed, but the reasonable use of goods to enable the person to service, prepare, test and deliver the goods does not result in the goods being deemed to be used for the purposes of this paragraph.
  5. A representation that the goods have been used to an extent that is materially different from the fact.
  6. A representation that the goods or services are available for a reason that does not exist.
  7. A representation that the goods or services have been supplied in accordance with a previous representation, if they have not.
  8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.
  9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.
  10. A representation that a service, part, replacement or repair is needed or advisable, if it is not.
  11. A representation that a specific price advantage exists, if it does not.
  12. A representation that misrepresents the authority of a salesperson, representative, employee or agent to negotiate the final terms of the agreement.
  13. A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.
  14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.
  15. A representation that misrepresents the purpose or intent of any solicitation of or any communication with a consumer.
  16. A representation that misrepresents the purpose of any charge or proposed charge.
  17. A representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers.  2002, c. 30, Sched. A, s. 14 (2).
Unconscionable representation

15 (2) Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person’s employer or principal knows or ought to know,

(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors;

(b) that the price grossly exceeds the price at which similar goods or services are readily available to like consumers;

(c) that the consumer is unable to receive a substantial benefit from the subject-matter of the representation;

(d) that there is no reasonable probability of payment of the obligation in full by the consumer;

(e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer;

(f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable;

(g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or

(h) that the consumer is being subjected to undue pressure to enter into a consumer transaction.  2002, c. 30, Sched. A, s. 15 (2).”

If a representation is made that prohibited under sections 14 or 15, the consumer may terminate or rescind the transaction within one year. Termination of the transaction can be made in any form. I recommend sending the notice in writing by registered mail.
A consumer can sue for general damages as a result of the improper representation as well punitive damages and aggravated damages.

Paralegals are trained to recognize when your consumer rights have been violated. Make sure to hire an experienced paralegal Ontario to represent you in Toronto Small Claims, Richmond Hill Small Claims, Brampton Small Claims and other courts around Ontario.

If you need representation in small claims court dealing with the Consumer Protection Act, 2002, please contact Marshall Yarmus at 416-229-1479 or visit www.CivilParalegal.com

A Settlement Conference is the most important hearing in a small claims court action

In my opinion the Settlement Conference is the most important hearing in a small claims court Ontario. This statement applies whether you settle or not.

In my opinion the Settlement Conference is the most important hearing in a small claims court Ontario. This statement applies whether you settle or not.

The Rules of the Small Claims Court outline the many purposes to a settlement conference. They include:

“13.03 (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.  O. Reg. 78/06, s. 27.”

This is the hearing where many self-represented litigants learn that if the case goes to trial it will take hours, a day, or multiple days for the trial to be heard. It is best to hire a paralegal Ontario to deal with your case.

Reasons why a settlement conference is the most important hearing in a small claims court case:

You can request that a judge at a settlement conference make many different orders. A judge is permitted to make orders including: adding or deleting parties, staying the action, amending or striking out a claim or defense, staying or dismissing a claim, directing production of documents, changing the place of trial, directing an additional settlement conference, and ordering costs. (See Small Claims Court Rules 13.05(1)(2))

The settlement conference is the place you and your legal representative can learn more about your opponent’s case. Discussions at a settlement conference usually include specifics of matters only touched upon in the pleadings. A good legal representative will use what they hear at a settlement conference to help them in trial preparation.

Listen to the opposing side. Try to see the case from their point of view. A good legal representative tries to see the case from their opponent’s point of view. This helps them better assess the strengths and weaknesses of their client’s case.

The judge at a settlement conference may make suggestions to both sides regarding what they can do to better prepare for trial. (See Small Claims Court Rule 13.03(1)(d))

This is the only hearing where you have a chance early in a small claims court proceeding to try to settle the case, before you spend a lot of time and money preparing for trial.

The settlement conference judge may give an opinion on who they think will be successful at trial, and why. Although, there will be a different judge if the matter proceeds to trial, it is valuable to hear a judge’s opinion.

Can the settlement conference judge make a final and binding decision on who wins and looses without a formal trial? Yes – provided Small Claims Court Rule 13.05(4) applies. If the amount of the claim(s) is less than the appealable limit (currently $2,500.00), and prior to the commencement of the settlement conference all the parties sign a consent (form 13B) indicating they wish to obtain a final determination of the matter at the settlement conference if a settlement cannot be reached.

Most Defendants who settle the case pay the agreed upon settlement amount. In most cases where a judge decides a case at trial, the Defendant does not voluntarily make payment to the Plaintiff. The Plaintiff who wins at trial often has to spend more money and time enforcing their judgment. It has been said that sometimes the worst thing that can happen for a Plaintiff is they go to trial and obtain a judgment.

You may win at trial. The opposing side may appeal. Although appeals of Small Claims Court decisions are not common, they do happen. An appeal is outside the scope of services a paralegal is trained and permitted to represent. It can be very expensive to hire a lawyer to fight an appeal.

Trials are very stressful. A good settlement allows both parties to walk away a little unhappy.

You may not have the evidence necessary to be successful at trial. Though you may have a strong case, you may be missing the important witness, photo, receipt, estimate, or an expert’s report to be successful at trial.

You may need an independent expert’s report or an expert witness at trial. They are not cheap. If you are self-represented you may not even be aware you need an expert to be successful at trial.

It is difficult to get witnesses to voluntarily attend trial. People may say they will be witnesses at trial now, but their mind might change closer to a trial date. Their are drawbacks to issuing summons to witnesses.

Need representation at Settlement Conference or any stage of a small claims court proceeding, Hire Marshall Yarmus, of Civil Litigations. He is an expert at small claims court proceedings. He is seen most often at Toronto Small Claims Court, Richmond Hill Small Claims Court, and Brampton Small Claims Court. Call 416-229-1479 or visit our website at www.CivilParalegal.com

What is the Limitation Period to sue in Small Claims Court?

Let’s focus on the Limitations Act, 2002. This act has many sections dealing with different types of claims from claims by minors and people who are not mentally competent to claims that have no limitation period

How long do I have to sue? The answer to that and most questions dealing with the law is….it depends.

There are two limitation acts in Ontario. They are the Limitations Act, 2002, and the Real Property Limitations Act.

Let’s focus on the Limitations Act, 2002. This act has many sections dealing with different types of claims from claims by minors and people who are not mentally competent to claims that have no limitation period

The basic limitation period is set out in section 4 of the Limitations Act, 2002. It states:

  1. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

Section 5(1)(2) sets out when a claim is discovered.
(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved..

In some cases pinpointing when the Plaintiff knew or when a reasonable person ought to have discovered a cause of action is complex.

A thorough review of relevant case law is required.

Other types of claims found in the Limitations Act, 2002 include claims regarding acknowledgement of liability. This is set out in section 13 of the act.

Section 13(1) and 13(10) state:

13 (1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made.”

“13 (10)  Subsections (1), (2), (3), (6) and (7) do not apply unless the acknowledgment is in writing and signed by the person making it or the person’s agent.
If a person acknowledges a debt in writing, the limitations clock stats over. Interestingly, there is a lot of case law concerning whether an email can be an acknowledgement in writing.

There are a number of types of actions that have no limitation period at all. One such action is the enforcement of a judgment.

Section 16(1)(b) states:

16 (1) There is no limitation period in respect of,

(b) a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court

That means a money judgment obtained after January 1, 2004 never expires. There are many other types of claims under section 16 that have no limitation period at all.

Section 19 has a schedule of fourth-six (46) different acts where the Limitations Act, 2002 does not apply. To find the limitation period for causes of action mentioned in section 19 you need to look to the specific acts and section numbers mentioned

Section19 includes certain sections of the Insurance Act, Corporations Act, Creditors’ Relief Act, 2010, Business Corporations Act, Business Practices Act, and the Reciprocal Enforcement of Judgments Act to name just a few.

I have talked about Rule 12.02 of the Rules of the Small Claims Court in another blog.

A motion can be brought under rule 12.02 in the small claims court Ontario to strike out a Plaintiff’s if, as a matter of law, it is plain and obvious the limitation period for the Plaintiff to have sued expired before the litigation commenced.

Determining the proper limitation period can be difficult. A mistake can be costly. If in doubt, hire a licensed paralegal Ontario for assistance. All Ontario licensed paralegals are required to carry errors and omissions insurance. If a paralegal makes a mistake that costs you the case, you can be assured you are protected.

Do you need help representation with a small claims court action? In the GTA contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit  https://www.civilparalegal.com/home_services/small-claims-court/ Put our 22 years of experience to work for you.

Why hire an Ontario Paralegal for a Judgment Debtor Examination to Collect a Small Claims Court Judgment?

A judgment debtor examination is often a judgment enforcement method of last resort. There are usually better ways to collect a small claims court judgment if you have information about the assets of the debtor.


However, if you have no information about a debtor other than an address, the judgment debtor examination hearing, if done correctly, can help the creditor immensely.

Notice of Examination

A judgment debtor examination like most enforcement action must take place in the court’s jurisdiction where the debtor lives or where they carry on business. A Notice of Examination is issued by the court giving a specific date and date to attend the hearing. The Notice of Examination must be served on an individual debtor either personally (handing it directly to the named debtor) or by leaving a copy of the Notice of Examination in a sealed envelope addressed to the debtor at the residence of the debtor, with a person who appears to be an adult resident of the same address, and then mailing or sending another copy by courier the next day.

If an individual debtor is being examined you must also serve a black financial information form on the debtor. Both the Notice of Examination and the black financial information form must be served on the debtor at least 30 days before the scheduled hearing.

Judgment Against a Corporation

If your judgment is against a corporation you must obtain a Corporate Profile Report of the company. This will list all directors of the corporation. You must name a director that you intend to bring to into court to be examined about the corporation’s ability to pay the judgment. The Notice of Examination may be served on the corporation by leaving a copy with any officer or director of the corporation or with a person at a place of the business of the company who appears to be in control or management of the business.

Searches are also needed in the case of a debtor  who is against a sole proprietorship or a partnership.

Judgment debtor examinations are held in private unless a judge orders otherwise. The judgment debtor examination is done under oath, and is recorded.

There was a case I was involved in at the Toronto Small Claims Court where I spent about two hours examining the debtor over two days. At a later time my client was able to prove that the debtor had intentionally lied under oath. She obtained a transcript of the examination hearing, and when to a Justice of the Peace to lay a criminal perjury charge.

What can you ask a Debtor?

Small Claims Court Rule 20.10(4) sets out what a person can be examined about. It states:

20.10 (4) The debtor, any other persons to be examined and any witnesses whose evidence the court considers necessary may be examined in relation to,

(a) the reason for nonpayment;

(b) the debtor’s income and property;

(c) the debts owed to and by the debtor;

(d) the disposal the debtor has made of any property either before or after the order was made;

(e) the debtor’s present, past and future means to satisfy the order;

(f) whether the debtor intends to obey the order or has any reason for not doing so; and

(g) any other matter pertinent to the enforcement of the order.  O. Reg. 258/98, r. 20.10 (4)”

An experienced paralegal conducting  a judgment debtor examination can spend a lot of time asking the debtor questions. The above rule is so broad that they can ask about all income and assets of the debtor, debts owed to the debtor, and the debtor’s past, present and future ability to pay the judgment.

Don’t be afraid to ask the debtor anything and everything that may be helpful to you in gathering information to enforce the judgment. You must take careful notes of all the information you obtain.

At the conclusion of the judgment debtor examination a creditor or their Ontario paralegal may ask the court for several orders. Rules 20.10(7) and 20.10(8) are important. They state:

Order As To Payment

(7) After the examination or if the debtor’s consent is filed, the court may make an order as to payment.  O. Reg. 258/98, r. 20.10 (7); O. Reg. 461/01, s. 20 (1).

Enforcement Limited while Order as to Payment in Force

(8) While an order as to payment is in force, no step to enforce the judgment may be taken or continued against the debtor by a creditor named in the order, except issuing a writ of seizure and sale of land and filing it with the sheriff.  O. Reg. 258/98, r. 20.10 (8).

The creditor or their paralegal can ask the judge to make an order for monthly payments. However, while that order is in place, the creditor is limited in taking other enforcement action other then issuing a writ of seizure and sale of lands and filing it with the sheriff.

If the debtor defaults on the monthly payments as ordered by the court the creditor cannot take other enforcement action until the Notice of Default of Payment and Affidavit of Default of Payment forms have been properly served and filed with the court with proof of service. See Small Claims Court sub-rules 20.02(3)(4).

Your Ontario paralegal will advise you whether asking for an order for monthly payments is a wise thing to do under all the circumstances.

The court also has the ability to order a review hearing, if requested,  and to make specific orders for the debtor to produce documents which are generally related to the debtor’s assets, income, and living expenses.

If the person to be examined attends the judgment debtor examination but refuses to answer questions, or attends but refuses to produce documents as ordered, they can be ordered to attend a contempt hearing. This could lead to a warrant for their arrest to issue.

At the end of the day you should be able to either obtain a court order for monthly payments, or have information necessary to take other enforcement action to collect the judgment. If you obtain an order for payments, and the debtor defaults on payments as ordered, you should still have information to take other judgment enforcement action.

Paralegal Representation

If you are in Toronto or the GTA and you need to hire a paralegal for a judgment debtor examination at the Toronto Small Claims Court, Richmond Hill Small Claims Court, or Brampton Small Claims Court, or for other judgment enforcement action, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit  https://civilparalegal.com/home_services/judgement-enforcement/