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/

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