small claims court – Civil Litigations Paralegal Services

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

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.

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.

A Writ of Seizure and Sale of lands filed in the jurisdiction where the debtor lives or carries on business also acts as lien against the person or company’s name. If another creditor is able to locate money or assets of the debtor, and the money comes into the hands of the sheriff, you are entitled to an equal portion of the money just by filing this Writ of Seizure and Sale of Lands.

This equal distribution of the money the sheriff receives is paid out pursuant to the Creditor’s Relief Act.

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 you are collecting a money judgment ordered by the Landlord and Tenant Board, you will need to know a current residential address for the former tenant. The judgment must be transferred to the small claims court in the area the tenant now livs.

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 Marshall Yarmus at (416) 229-1479 or (343) 600-7722 or visit our website at http://civilparalegal.com/home_services/judgement-enforcement/

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?

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.

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.

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.

How can an Ontario paralegal help you?

At Civil Litigations we are experts at small claims court representation and landlord and tenant board representation. We choose to focus only on these areas of the law as we have since 1996.

Paralegal Ontario Canada are licensed and regulated by the Law Society of Ontario. It was formerly known as the Law Society of Upper Canada.

The paralegal rules of conduct and the by-laws are mirror images of the strict rules which lawyers operate under.

However, a lawyer in Ontario can provide virtually any legal service a client wants. Paralegals have a very limited scope of services we can offer.

The services Ontario paralegals are permitted to offer include:

1. Representing in the small claims court, provincial offences court, criminal court (for cases where the maximum penalty is six months in jail.)

2. Representing at provincial tribunals, boards and commissions such as the landlord and tenant board, human rights tribunal of Ontario, the labour board, social assistance tribunal, workplace safety and insurance board, the license appeal tribunal.

3. Representing at federal tribunals, boards, and commissions such as the social security tribunal, transportation appeal tribunal of Canada, national parole board, and the immigration and refugee board.

4.Preparing all paperwork and representing an individual with Statutory Accident Benefits claim. These are claims against your own insurance company related to minor injuries resulting from a motor vehicle accident.

We cannot do everything regarding the above courts, tribunals, and boards. We can only deal with a case where these is a hearing to take place, or a prospective hearing.

Note I am not using the confusing language the Law Society of Ontario uses in their by-law 4, section 6(1)(2). You can find the by-law on the Law Society’s website. If there is a discrepancy between my plain language explanation and the language of the by-law, the by-law prevails.

In the courts and tribunal listed above a paralegal may only:

1 Determine what forms need to be completed, fill out the forms, and appear as a representative at any hearing.

2. Provide legal advise on a case that has been filed, is about to be filed, or where a party is contemplating initiating or defending a case before one of these courts or tribunals.

Negotiate a party’s interest in a proceeding.It is important to note that a paralegal may only prepare forms to be used in a hearing before a court or tribunal.There are immigration documents that can be completed and filed. These documents will not necessarily lead to a hearing before the immigration and refugee board. A paralegal is not permitted to prepare these documents. A paralegal may appear as a representative before the immigration and refugee board, but no prepare certain documents for filing.Ontario now has a standardized lease that that must be used for any new residential tenancies entered into after April 30, 2018. A landlord is permitted to attach an appendix with additional conditions to the standard lease.The lease may someday be used in a hearing before the Landlord and Tenant Board. A paralegal is not permitted to prepare the lease, or the appendix with additional terms, or advise what additional terms should be included in the lease as this will not necessarily lead to a hearing.I have attempted to make a confusing by-law understandable.

If you lack experience with small claims court Ontario or the landlord tenant board Ontario we can help. Contact Marshall Yarmus (phone 416-229-1479 https://civilparalegal.com) to represent you at in your small claims court case or landlord and tenant board matter.

Look to another paralegal firm to help you in any matter which a paralegal is permitted to provide to the public.

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.

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;

(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.

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

“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.
“5 (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.