In Ontario, the Small Claims Court is a branch of the Superior Court of Justice. The small claims courts are meant to be an easier and less expensive way to resolve disputes, than in the higher courts. Small Claims Court procedure is regulated both by provincial legislation and rules. Small claims procedure is simplified with no strict pleadings requirements, no formal discovery process and parties costs may be limited. For example, the forms in Small Claims Court use a fill-in-the-blank style.
Small Claims Court Overview
The person or business starting the case is called the plaintiff. The person or business being sued is called the defendant.
Reasons to Make a Claim in Small Claims Court
- Your tenant gave you a rent payment cheque that appeared to be N.S.F?
- Your customer does not want to pay the invoice for your services that you have delivered to them?
- A year and a half has passed already but your neighbour has not returned $3,000 that you borrowed him for a month to buy his car?
- Your favourite pants and sleeves of your formal black suite became 3 inches shorter after dry cleaning?
- Did it take 3 months for the electrician that you invited to install pot lights in your kitchen instead of 1 week that you agreed upon?
- Do you think your were dismissed wrongfully?
- The plumber who you hired to fix your shower smashed pink marble tiles in your bathroom?
- Are you going to be sued and do not know how to defend yourself?
The list of reasons to make a claim in Small Claims Court can be continued “Ad Infinitum”. Although, you do not need a lawyer or paralegal when you go to Small Claims Court, to have a knowledgeable and experienced party to defend your case is a good idea.
Small Claims Court is now an option for Ontarians and businesses with monetary disputes up to $35,000.
In Small Claims Court you can only sue for money or the return of personal property. If the amount of your claim is more than $35,000, you cannot, for example, divide $30,000 into a $25,000 claim and a $10,000 claim in order to have the total amount dealt with in two cases.
If the amount of your claim is more than $35,000, you can still go to Small Claims Court, BUT:
- You will have to give up any money that you are owed over $35,000.
- You will have to give up your right to sue for this money in any other court.
!!! Now you can make a claim in Small Claims Court if the case is less than $500 !!!
TYPES OF THE SMALL CLAIMS COURT DISPUTES
The Small Claims Court can handle any action for the payment of money or the recovery of possession of personal property where the amount claimed does not exceed $35,000, excluding interest and costs such as court fees.
The Small Claims Court hears disputes on a wide range of matters:
- contracts for goods and services
- debt collection
- damage to real and personal property
- services rendered
- professional malpractice and negligence
- tort actions (wrongful acts that result in damages or injury)
- consumer issues
- N.S.F. cheque
- unpaid invoice/accounts for goods or services sold and delivered
- promissory note
- Landlord/Tenant disputes (rent arrears, failure to return security deposit, destruction of rental property);
- breach of warranty (claim that an item purchased does not work the way it is supposed to work)
Disputes involving title to property or land, slander, libel, bankruptcy, false imprisonment or malicious prosecution must be handled in a superior court and cannot be determined in small claims courts.
CHOOSING A SMALL CLAIMS COURT LOCATION
You must file your claim in the Small Claims Court office in the area where one of these conditions applies:
- where the problem occurred (the location of the cause of action);
- where the party against whom the claim is filed (the defendant) lives or carries on business;
- where the nearest small claims court office location to the place where the defendant lives or carries on business.
THE SMALL CLAIMS COURT FEES
You must pay a fee to file a claim or defence in a Small Claims Court and for most steps in a proceeding, such as filing a motion, requesting a trial date, and taking steps to enforce a judgment. The number of steps in a proceeding varies from case to case.
There are also fees and allowances that you must pay to witnesses you have summoned for their attendance and travel to court. In addition, you will have to pay for any interpreters you or your witnesses require, other than bilingual (English or French) and sign language interpretation
If you are successful and are granted a judgment, the judgment may include the fees you have paid. If the debtor refuses to pay even after you have a judgment, additional fees must also be paid to enforce (attempt to collect) the judgment, e.g. if you ask the Enforcement Office to seize and sell the debtor’s assets so that you can be paid what you are owed.
Some of the Small Claims Court Fees
|Filing of a claim by an infrequent claimant||$102|
|Filing a Defence||$73|
|Filing a notice of motion served on another party, a notice of motion without notice or a notice of motion for a consent order (except a notice of motion under the Wages Act)||$120|
|Issuing a summons to a witness||$31|
|Fixing of a date for trial by an infrequent claimant||$290|
|Having the clerk issue a Notice of Garnishment||$136|
Court fees can be paid by cash, cheque or money order payable to the Minister of Finance.
The Ontario Government introduced a fee waiver certificate for persons who may be denied access to justice because of their financial circumstances. If you cannot afford to pay court filing or enforcement fees, you may request a fee waiver. The fee waiver applies to most fees in Small Claims Court proceedings. More information about fee waiver is available at any court office and on the Ministry of the Attorney General website at www.ontario.ca/attorneygeneral
SMALL CLAIMS COURT PROCEEDINGS
Completing the Plaintiff’s Claim form: When you fill out the Plaintiff’s Claim form be sure to:
- Get the defendant’s name right, including any corporate name
- Explain what happened in detail.
- Include dates and places.
- State how much money you want or what goods you want returned.
- Explain how you figured out the amount or why you should get the goods.
- If you want interest on the money requested, ask for it on the Plaintiff’s Claim.
- Attach copies of any documents that support your case.
Filing the claim: You need to decide which Small Claims Court to go to. If you are not sure where to go, you can phone the court in the location you have in mind to check if it is the right court. You can find the phone number on the Ministry of the Attorney General website. Bring to the court office the original and a copy for each defendant:
- the Plaintiff’s Claim form; and
- the documents that support your case
Paying Small Claims Court Fees: you have to pay all applicable fees
Serving the Plaintiff’s Claim After you have filed the claim with the court, you must deliver a photocopy of the claim and your documents to each defendant. This is called serving the defendants. There are different rules for serving different kinds of documents.
If you have filed a claim and the defendant has not filed a defence within 20 days, you can ask the court clerk to note the defendant in default. You do this by filing a Request to Clerk form. You must prove that the defendant was properly served with the claim. You do this by filing an Affidavit of Service form. When a defendant has been noted in default you can ask the court to order them to pay money to you. This can be done by:
- Asking the court clerk to sign default judgment for a specified sum of money for that you must fill out and file a Default Judgment form; or
- Asking a judge to order default judgment. To do this, you file a Notice of Motion and Supporting Affidavit form. Explain the facts supporting your motion.
Both parties should go for a settlement conference – a meeting with the parties and a judge to try to find an answer to the case that all parties can agree to. It must be held no later than 90 days after the first Defence is filed.
There is a special rule for claims that are less than $2,500. The parties can agree to have a judge decide the case at the settlement conference. To agree to this, the parties must fill out a Consent form. The judge would decide the case at the settlement conference only if the parties could not reach a settlement. If the judge decides the case at the settlement conference, the case ends and there is no trial.
At the trial each party tells their side of the story and the judge makes a decision.
If the case involves $2,500 or more, you can appeal the judge’s decision to the Divisional Court. To win the appeal you would have to show that the Small Claims Court judge made a mistake. The Divisional Court will not listen to any new evidence from you. It will only look at what was said and done at the Small Claims Court trial.
The number of steps in a Small Claims Court proceeding varies from case to case. Generally, there are 2 types of Small Claims Court procedures: defended and undefended claims:
Small Claims Court Steps (where claim is defended)
1. Plaintiff’s Claim
2. Affidavit of Service
- Settlement Conference
4. Defence with Proposed Terms of Payment
- Terms of Payment Hearing (Optional)
- Terms of Settlement
- Motion to vary terms of settlement
- Enforce judgment, or
- Appeal to Divisional Court
- Notice of default of payment
- Affidavit of service and Affidavit of default of payment
- Default judgment
- Enforce judgment
Small Claims Court Steps (where claim is undefended)
1. Plaintiff’s Claim
2. Affidavit of Service
3. Request to Note In Default
- Default Judgment
- Assessment for Damages
4. Motion to Set Aside Judgment
5. Enforce Judgment
What you need to consider before going to Small Claims Court
Before starting a lawsuit, you should ask yourself if it will be worth it. There are a number of factors you have to consider before making a claim in Small Claims Court and a number of pieces of information you will need to collect.
Information you need to have about a person or business you want to sue in Small Claims Court:
1) You will need the correct legal name of the person or business and a current residential or business address. Before going to Small Claims Court, you must have the exact name of the person, or of the corporation, or the Ontario corporation number, or the exact name of the registered business. For information on how to search a corporation or registered business name, you may contact the Companies Helpline, Ministry of Government Services. Please note that there is a fee for the search and the search will not be conducted over the phone. The Helpline can be reached at (416) 314-8880 or toll free in Ontario at 1(800) 361-3223.
2) If you obtain a judgment in your favour, you may have to enforce (attempt to collect) the judgment. In order for you to collect, the person/business must have one of the following:
- assets that can be sold, or
- debts (e.g. bank account, employment income) that can be garnished.
3) Does the person/business owe others money? You may be able to find out by contacting your local credit bureau, enforcement office, land registry office, and/or Small Claims Court (a fee may be payable). You may find that there are other creditors who are already waiting in line to collect their judgments. Even if the person/business does not have money now, you may be able to collect your judgment in future.
4) Information you need to have to support your Small Claims Court case
You will have to prove your case. Consider what witnesses and/or documents you have to support you. If it is just your word against the other person’s, it may be difficult to prove your case. Consider if you have the following:
- Any written evidence or documentation: copies of documents (for example, contracts, N.S.F. cheques, record of payments), photographs and other that you intend to use to support your claim must be attached to the claim form if you decide to go ahead.
- A record of any payments, returned cheques, etc. and/or a clear recollection of what happened and when: you will be required to write in the plaintiff’s claim form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
- Witnesses that can support you
5) Time you have to spend
There may be a time limit on how long you can wait before making a claim in Small Claims Court, which is set out in the Limitations Act. Under the law, the time you have to sue may run out. Check the time limits for your type of case. If you aren’t sure about whether you are still in time to make a claim, talk to a lawyer or paralegal.
Can you take days off at work to file your claim, deliver documents, and attend in court for a trial?
Are you willing to spend hours and hours for:
- researching all guides on filing your claim;
- researching all applicable Small Claims Court procedures and steps;
- visiting Law Help Ontario at Small Claims Court – Pro Bono Law Ontario Duty Counsel are free lawyers that offer limited services to the public at the Toronto Small Claims Court; or
- reading legislation on-line, for example the Limitations Act?
Consider other options to resolve the issue
To keep your costs low, you might want to try to reach an agreement out of court. This is called settlement. You may consider mediation, which is a less formal method of resolving a dispute through a neutral third party. Mediation can be less time-consuming, more flexible, and less expensive than proceeding in court. It can also help you find your own solution to the dispute and preserve your relationship with the person/business.
Remember, court staff cannot provide you with legal advice or help you to complete all necessary forms. Do not relay on information from relatives and friends, unless they are lawyers or paralegals.
PREPARING FOR SMALL CLAIMS COURT
You should prepare your case as thoroughly as you can. Think of what the defendant will say and what evidence they could bring to Small Claims Court. It is also a good idea to go to the court where your claim will be heard and watch a couple of small claims court cases so you will know what will be required of you.
Be neat while filling in forms in small claims court. These are court documents. All court forms must be typed, handwritten or printed legibly. It may cause delays if your forms cannot be read. Forms are available at court offices and at the following website: www.ontariocourtforms.on.ca
Count days for timelines according to the Rules of the Small Claims Court: When calculating timelines, count the days by excluding the first day and including the last day of the period; if the last day of the period of time falls on a holiday, the period ends on the next day that is not a holiday. If New Year’s Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday. If Christmas Day falls on a Saturday or Sunday the following Monday and Tuesday are holidays, and if Christmas Day falls on a Friday, the following Monday is a holiday.
Sign an affidavit. The affidavit must be signed in the presence of the person before whom it is sworn:
- a Small Claims Court staff member who has been appointed a commissioner for taking affidavits (there is no fee for this service);
- a lawyer who is entitled to practice law in Ontario;
- a notary public; or
- any other person who has been appointed a commissioner for taking affidavits in connection with court documents
If your address for service changes, you must serve written notice of the change on the court and all other parties within 7 days after the change takes place.
AFTER THE SMALL CLAIMS COURT’S JUDGMENT
Some people think that when the trial is over and the judge’s decision is made or a default judgment is obtained, the successful party will automatically be paid by the debtor and that is the end of the case. A judgment is an order of the court; it is not a guarantee of payment. If you are the plaintiff and you win the case you become the creditor, you may still have to take further steps to get the money or property from the defendant who becomes the debtor. If the debtor does not pay, there are legal steps called enforcing the judgment. You have two options for trying to get the money:
Garnishment: You can have the court order someone else who owes the debtor money to give it to you instead of to the debtor. For example, the debtor may be receiving wages from an employer or may have money in the bank. You can ask the court to make the debtor’s employer or bank pay this money to the court. The court will then pay you. This is called garnishment. To make this happen:
- Fill out a Notice of Garnishment form and an Affidavit for Enforcement Request.
- File the Notice of Garnishment form and an Affidavit for Enforcement Request with the court.
- Then serve the Notice of Garnishment and a blank Garnishee’s Statement on the person or business that has the money.
- Serve the Notice of Garnishment on the debtor.
Seizure and sale of property or land: If the debtor does not pay, you can have their things seized. To do this:
- Fill out and bring to the court a Writ of Seizure and Sale of Personal Property form or Writ of Seizure and Sale of Land and Affidavit for Enforcement Request.
- The court will give you forms to take to the enforcement office.
- Give the enforcement office details about the items you want taken and where to find them.
The enforcement office will seize the goods or land and sell them at a public auction. The enforcement office will pay the amount received for the goods to the court. Part of this money will be used to pay the court back for costs like storing the goods and advertising the sale. You will receive the money that is left over, but not more than you are owed. Selling the debtor’s land involves a lot of paper work and a Writ of Seizure and Sale of Land is not usually used for a lawsuit in Small Claims Court.
“NOTICE: YOU HAVE BEEN SUED!”
Reasons you can be sued
- The plaintiff may think you owe them money under an agreement they have with you.
- The plaintiff may think they have been harmed by something you did or should have done but didn’t. They want money to make up for the loss.
- The plaintiff may think you have property that belongs to them.
In all these cases and in other cases where the plaintiff wants no more than $25,000 you can be sued in Small Claims Court.
You should not ignore the lawsuit in Small Claims Court.
If you ignore the lawsuit the court will think the plaintiff is right about the facts. If you don’t reply, the case will go on without you. You will not have a chance to defend yourself and tell your side of the story.
Filing a Defence in Small Claims Court
The defendant’s response to the Plaintiff’s Claim is called the Defence. You must file your Defence with the Small Claims Court office no later than 20 days after receiving the Plaintiff’s Claim.
When you fill out the Defence form be sure to include:
- Your name and address.
- What you disagree with about the plaintiff’s claim and why.
- Anything you agree with in the plaintiff’s claim.
- If you want to pay all or part of what you owe, how much you will pay and when you will pay.
- Attach copies of any documents that support your case. For example, contracts, bills and photographs.
You have to bring to the Small Claims Court office where the plaintiff started the claim the original and a copy for each party listed on the plaintiff’s claim:
- The Defence form.
- All other documents supporting your case.
The Small Claims Court office will deliver a copy of the Defence form and documents to the plaintiff(s) and any other defendant listed on the plaintiff’s claim.
Small Claims Court Fees Payment
To respond to the claim you should file a Defence and pay all applicable fees.
- Court fees at each step in the case.
- Photocopies and delivery of documents.
- Fees, travel expenses and interpreters for witnesses you call to court.
- Legal fees if you have someone represent you.
If you did not file the Defence on time, the Small Claims Court may make a decision against you and may order you to pay money or give goods to the plaintiff. This decision is called a “default judgment”.
You can also make a claim of your own against the plaintiff. This is called a Defendant’s Claim. For example, the plaintiff may owe you money. Or you may believe someone else caused the plaintiff’s loss and that person should pay instead of you.
GLOSSARY FOR SMALL CLAIMS COURT MATTERS
- An affidavit is a formal sworn statement of fact, signed by the author, who is called the affiant or deponent, and witnessed as to the authenticity of the affiant’s signature by a taker of oaths, such as a notary public or commissioner of oaths. The name is Medieval Latin for he has declared upon oath.
- An affidavit of service certifies the service of a notice, process, summons, or writ by stating the time and manner in which the document was served
- A default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court.
- A defendant is a party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court.
- A judgment is the formal decision made by a court following a lawsuit. At the same time the court may also make a range of court orders, providing a remedy for the plaintiff.
- A motion is a procedure of bringing a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings.
- A plaintiff is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order.
- A summons is a legal document issued by a court or by an administrative agency of government for various purposes. The summons is addressed to a defendant in a legal proceeding. Typically, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person, and that a case has been initiated in the issuing court.
RESOURCES AND GUIDES FOR SMALL CLAIMS COURT MATTERS
The Ministry of the Attorney General has a series of guides to Small Claims Court procedures which are available at court offices and the Ministry of the Attorney General website at www.ontario.ca/attorneygeneral
Small Claims Court forms are available at court offices and at the following website: www.ontariocourtforms.on.ca
SOME EXAMPLES OF SMALL CLAIMS COURT MATTERS
BREACH OF CONTRACT
Situations for Filing a Claim for Breach of Contract in Small Claims Court
All of us are, have been or will be bind with different types of contracts: we have to sign a contract to get our credit card; to lease a car; to rent an apartment; to advertise our product or service; to go to gym; to get a job; to buy a computer; to hire a construction team; to … Everywhere. Every time. Often, we don’t even realize that fact.
There are an endless number of situations when things go wrong: a fridge we bought yesterday doesn’t work; a printing company issued only 5,000 copies of our corporate brochure instead of 10,000 and insists on the number of 10,000; a web designer of our e-store is 5 months behind the schedule. We are frustrated and tired of it and looking for legal help.
Laws exist for the protection of the consumer regardless of whether they are buying goods in a store, obtaining services from a company, or applying for a credit card. All agreements are strictly regulated and there are consequences should these regulations be broken.
Unfortunately, sometimes dishonest people will slip out. For instance, a large retailer that advertises goods on the Internet is inviting the consumer to enter into an agreement to make a purchase. However, the products on websites have been incorrectly priced and the purchase has taken place before the mistake has been noticed. If this happens then there is nothing could be done.
Breach of Contract Explanations
A contract is an exchange of promises between two or more parties to do, or refrain from doing, an act, which resulting contract is enforceable in a court of law. A contract is a promise or set of promises, the breach of which gives a remedy or the performance of which creates a legally recognized obligation. The remedy at law for breach of contract is “damages” or monetary compensation. The remedies award the damaged party the “benefit of the bargain” or expectation damages.
Any oral or written agreement between two or more parties can constitute a binding legal contract. However, only a written contract can be material evidence. If the contract is only oral in nature, it might be difficult to prove the existence of the contract in Small Claims Court.
There are some types of contracts that must be in writing to be enforceable, such as:
- Sales of real property
- Promises to pay someone else’s debt
- A contract that takes longer than one year to complete
- Property leases for more than one year
- A contract that will go beyond the lifetime of the one performing the contract
- The transfer of property upon the death of the party performing the contract
If you don’t have such a contract in writing, the breach of contract will not be enforceable.
Breach of Contract Definition
Breach of contract is a failure of a party to a contract to perform their obligations as agreed to within the contract. Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honoured by one or more of the parties to the contract by non-performance or interference with the other party’s performance. If the party does not fulfill their contractual promise, or has given information to the other party that they will not perform their duty as mentioned in the contract, there is the “breach of contract” case.
Types of Breach of Contract
A contract may be breached in whole or in part. A breach of contract usually occurs when one or more of the parties:
- fail to perform as promised;
- make it impossible for the other party to perform;
- make it known there is an intention not to perform.
The main types of breach of contract are:
Minor (also, partial or immaterial) Breach of Contract: In a “minor” breach, the non-breaching party cannot sue for specific performance, and can only sue for actual damages. Minor breaches can be, for example, a builder who substitutes his own type of materials for specified materials. The substituted materials may work just as well as the specified but it can still be seen as a minor breach of contract. Suppose a homeowner hires a contractor to install new plumbing and insists that the pipes, which will ultimately be hidden behind the walls, must be red. The contractor instead uses blue pipes that function just as well. Although the contractor breached the literal terms of the contract, the homeowner cannot ask a court to order the contractor to replace the blue pipes with red pipes. The homeowner can only recover the amount of their actual damages. In this instance, this is the difference in value between red pipe and blue pipe. Since the color of a pipe does not affect its function, the difference in value is zero.
Major Breach of Contract: If something particular had been specified in the contract as a condition, a breach of that condition would constitute a “major” breach. For example, when a contract specifies time is of the essence and one party to the contract fails to meet a contractual obligation in a timely fashion, the other party could sue for damages for a major breach.
Material Breach of Contract: A material breach is a breach of contract that has serious consequences on the outcome of the contract. A material breach of contract is any failure to perform that permits the other party to the contract to either compel performance, or collect damages because of the breach. If the contractor in the above example had been instructed to use copper pipes, and instead used iron pipes that would not last as long as the copper pipes would have lasted, the homeowner can recover the cost of actually correcting the breach – taking out the iron pipes and replacing them with copper pipes.
Fundamental Breach of Contract: A fundamental breach of contract is a breach so serious that the contract has to be terminated. In addition that party is entitled to sue for damages.
Anticipatory Breach of Contract: An anticipatory breach of contract is one where one of the parties makes it known that they will not be carrying out agreed work, and the consequences can be termination of the contract and damages being sought in court. An anticipatory breach gives the non-breaching party the option to treat such a breach as immediate and terminate the contract and sue for damages (without waiting for the breach to actually take place).
Overview of Remedies for Breach of Contract
The law provides remedies against those who breach their contracts. The most common and usual remedy for breach of contract will be an award of damages. The general rule for recoverable loss in breach of contract cases is that the courts will award damages to place the aggrieved parties in the same position they would have been in had the contract been performed. In some contracts, the parties may choose to specify a liquidated sum of damages in the event of breach. The caveat here is that the specification of liquidated damages cannot be a penalty. If the liquidated damage clause is enforceable, it will avoid the need for the aggrieved party to prove their actual damages.
CONSTRUCTION / RENOVATION
Claims about home renovations in Small Claims Court are among the most common. Do you know that you are protected under the law when you enter an agreement for your home renovation?
Situations for Filing a Claim for Construction / Renovation in Small Claims Court
There may be different reasons that caused Construction / Renovation claims in small claims court: permits and approvals; site access restrictions; mismanagement; differing site conditions; lack of funds; defective specifications; changes in the work; labor productivity issues; document review/approval; testing/inspections; or inclement weather.
Usually, Construction / Renovation cases rely on consultants who are experienced construction managers, architects, engineers, home inspectors, and building code enforcement officials. Construction industry experts can be involved for the following issues:
- Construction / Renovation drawings and specifications review
- On-site Inspections
- Design consistency and constructability analysis
- Review of compliance with appropriate building codes and standards
- Review of project correspondence
- Review of job reports, and etc.
- Forensic construction defect evaluation
Although, there are numerous reasons for Construction / Renovation claims in Small Claims Court, the main types of them are the following:
- Construction / Renovation Delay
- Labour Productivity
- Design and Construction Defect
- Construction / Renovation Acceleration
- Differing Site Conditions
- Construction / Renovation Changes
Construction / Renovation Delay Claims in Small Claims Court:
The famous saying that “Time is money” is especially true on construction / renovation projects. One of the most common types of Construction / Renovation small claims court claims are the claims related to schedule impacts, circumstances which extend the project and/or prevent work from being done as originally planned. However, delay claims are some of the least understood and complex disputes.
Construction / Renovation Labour Productivity Claims in Small Claims Court
Labour productivity claims are the most contentious claims among Construction / Renovation claims in Small Claims Court. Partially, it is based on the fact that labour productivity rates are often not tracked with enough precision and labour productivity losses are often difficult to distinguish. Construction / Renovation labour productivity is typically measured as labour hours per quantity of material installed. A loss of productivity can happen when a particular team is not accomplishing the planned production rates. It takes more labour to do the same amount of work. To win a labor productivity case in small claims court can be very difficult.
Design and Construction Defect Claims: Despite the best plans, Construction / Renovation defects typically occur. Design and construction defects can and do occur due to a variety of problems, including, the following:
- The designer specified the incorrect materials or fails to specify them at all
- The contractor didn’t follow the proper construction/installation guidelines.
- The contractor’s quality control was poor.
- The owner has chosen materials or hardware which was not sufficient for the intended purpose.
- The contractor used substandard materials to reduce the costs.
- The supplier provided with materials that are insufficient or defective.
Time plays an important part in construction/renovation projects. Literally, “Time is money”. When a particular work has to be done earlier than planned, we are talking about acceleration. A contractor may accelerate voluntarily to mitigate its own delays and inefficiencies or to finish the project earlier and move on to the next project. Acceleration claims are typically occur when the contractor makes efforts to recover the project schedule after the project has suffered delays due to causes it believes are beyond its control. However, acceleration efforts can be expensive and do not guarantee early or on-time completion of the project. Adding resources requires extra costs. Working overtime hours typically requires paying of 1.5 to 2 times base labour rates. Directed acceleration occurs when the owner directs the contractor to accelerate to complete the project before the planned date.
All these things can result in problems during construction / renovation projects and lead to filing Construction / Renovation claims in small claims court.
Some explanations about Professional Malpractice claims in Small Claims Court
Professional malpractice refers to negligence or misconduct by professional persons, such as lawyers, doctors, dentists, accountants, financial advisors, investment companies, insurance agents and other professionals. Professional malpractice is an area of legal practice that deals with an individual professional’s or a business’ wrongdoing that causes injury or damage. The failure to meet standard of conduct or a standard of care that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of that wrongdoing.
Examples of professional malpractice are breach of duty, mismanagement, omissions, errors, misconduct, misrepresentation, fraud, careless delivery of services and performance of technical or medical procedures. Professional malpractice is an act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to their client.
Legal malpractice: Legal malpractice is the term for misconduct, negligence, breach of fiduciary duty, or breach of contract by a lawyer or paralegal that causes damage or harm to their client. A lawyer or paralegal has the duty, in all dealings and relations with a client, to act with honesty, good faith, fairness, integrity, and fidelity. A lawyer or paralegal must possess the legal skill and knowledge that is ordinarily possessed by members of the profession. Legal malpractice occurs when a lawyer or paralegal acts in their own interest instead of interests of their clients. A common basis for a legal malpractice claim arises where a lawyer or paralegal misses a deadline for a filing of a paper with the court and this error is related to the loss of the client’s cause of action
Medical malpractice is professional negligence by act or omission by a health care provider (doctors, nurses, caregivers, dentists and other health related professionals) in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient, with most cases involving medical error. Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice.
Situations for Filing a Claim for Professional Malpractice in Small Claims Court
Sometimes a professional causes damage or harm by being ignorant, careless, negligent, or untruthful. We feel like a professional has done something wrong to us or our family but think that it is no use to complain against the powerful professional. But in fact, those professionals are responsible for their wrongdoings. They may be required to account for their actions or failure to act to governmental, professional or licensing organizations responsible for enforcing required standards. If you believe that professional wrongdoing was the cause of the damage or harm you have suffered there might be a case to be compensated for your losses. This may include payment for pain and suffering, economic losses including past and future income, medical expenses, and more.
A claim for professional malpractice basically asserts that the professional involved failed to act like other professionals would have acted in the same of similar circumstances. It is not just medical professionals who are liable for malpractice. There are many other professionals that rely on a high amount of education and finesse which can also be the source of malpractice. For example, accountants must uphold strict standards of monitoring your finances. If accountants fail to follow the accounting principles, this can reflect badly on your account when it is audited. This can result in legal damages if they do not correctly keep your records, or it can result in actual financial losses and damages. One more example: architects and engineers take people’s lives in their hands when they are building and making plans. If an architect does not correctly the weights of the materials or the angles at which they should place the supporting beams, the structure can collapse and injure those in and around it.
A professional is liable for fraud (except when the client caused the professional to commit fraud) and is generally liable for any damages resulting to the client by their negligence. Moreover, a professional is responsible for the doings of their associates, assistants, and partners and may be liable for their doings if they result in losses to the client.
Negligent errors are most commonly associated with professional malpractice. An error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. This category is based on the premise that a professional has committed an error that would have been avoided by a competent professional who exercises a reasonable standard of care.
Professionals, who give improper advice, improperly prepare documents, or fail to file documents on time, may be charged with professional malpractice.
Many professional malpractice claims are filed because of negligence in the professional relationship. The improper and unprofessional handling of the professional-client relationship leads to negligence claims that are not based on the actual services provided.
Another area of professional malpractice involves fee disputes. When a professional sues their client for professional’s fees, many clients assert professional malpractice as a defence.
Professional malpractice claims in Small Claims Court require involving experts from appropriate industry to thoroughly examine details, to find out if any professional standards were broken and to provide the strongest possible representation in Small Claims Court case. In order to prove professional malpractice there may be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce their own expert to counter that testimony.
DAMAGE TO PROPERTY
Situations for Filing a Claim for Damage to Property in Small Claims Court
Examples of property damage or loss valued at under $25,000 may include, but are not limited to:
- damage to windows, doors and interiors or exteriors of homes, apartments, cottages or businesses
- theft of contents such as jewellery, televisions, computers and merchandise
- damage to automobiles
Generally, Damage to Property case possesses three elements:
- Lack of consent: The interference with the property must be non-consensual.
- Actual harm: The interference with the property must result in actual harm or loss.
- Intentionality: The interference with the property must be intentional.
According to the Parental Responsibility Act, parents financially responsible for property loss, damage or destruction intentionally caused by their children who are under 18 years of age. Victims of property crimes committed by minors follow the standard Small Claims Court process.
SALES OF GOODS
From time to time all of us buy some things that cost more than $500. Do you know that stores and other suppliers are not legally required to offer refunds or exchanges? Are you aware that some personal items, such as jewellery, are usually cannot be returned to the store? It’s important that you check the store’s policy before making a purchase or deposit. Not all stores will let you change your minds after you put deposits on items. In Ontario, your consumer rights are protected by law, and no one can take those rights away from you. If you want a refund or exchange based on an unfair practice and a seller is not intend to do so, you have legal rights to file a claim in Small Claims Court. You are also protected against unfair business practices such as deceptive promotional and sales tactics.
When you buy goods you enter into a contract with the seller of those goods. In most cases, your rights are against the retailer – the company that sold you the product – not the manufacturer. The goods must be:
- fit for purpose (for example, if you specifically asked for a printer that would be compatible with your computer)
- as described in a brochure or any other description
- of satisfactory quality, and
The law gives you a “reasonable” time to give a product back and get your money back if you buy a product that turns out to be faulty. However, even with something like a car, you usually have no more than a few weeks from the date you bought it to reject it. You have the right to get a faulty item replaced or repaired, if you want. You can ask the retailer to do either, but they can normally choose to do whatever would be cheapest. If the seller refuses to repair the goods, you may have the right to arrange for someone else to repair it, and then claim compensation from the retailer for the cost of doing this. If your claim ends up in court, you may have to prove that the fault was present when you bought the item and not, for example, something that was the result of normal wear and tear. If you paid by credit card, you may be able to enforce your rights against your credit card company as well as the retailer.
Improving Protection for Consumers Buying Cars
The Motor Vehicle Dealers Act, 2002 (MVDA) that came into force on January 1, 2010, includes:
- Mandatory disclosures of vehicle history and key features: Dealers are obligated to disclose a vehicle’s true condition and history, including structural and flood damage, and the cancellation of the manufacturer’s warranty. In addition, when advertising, specific vehicle’s past use as a taxi or police cruiser, which often entails harder driving, must be disclosed.
- 90-day contract cancellation for key non-disclosures: 90-day contract cancellation is available for consumers if certain key items are not disclosed by the dealers. These items include: failure to accurately disclose odometer readings; failure to disclose past use of a vehicle as a police cruiser, emergency service vehicle, taxi, limousine or daily rental; and failure to disclose that a vehicle has been branded as rebuilt or salvage.
- Increase of claim coverage from $15,000 to $45,000: Consumers are eligible to have an increased range of claims satisfied by the Motor Vehicle Dealers Compensation Fund. For example, if a consumer made a deposit on a particular car and a dealership goes out of business, a consumer is protected under the Motor Vehicle Compensation Fund and can get the money back.
- Canadian Motor Vehicle Arbitration Plan: Pre-purchase disclosure of whether or not the consumer would have the benefit of the Canadian Motor Vehicle Arbitration Plan is required to resolve any disputes concerning alleged manufacturer defects or implementation of the manufacturer’s warranty.
- Maximum fines: Maximum fines under the MVDA 2002 have increased from the previous Act. Maximum fines for individuals are $50,000 – increased from $25,000 – and maximum fines for corporations are $250,000 – increased from $100,000.
- All-inclusive price advertising for new and used vehicles: Dealers must adopt all-inclusive price advertising. This means that dealers must include freight charge, dealer preparation charge and other miscellaneous add-on fees in their advertising, so the only additional fees the consumers should expect to pay is taxes.
- Code of Ethics: Code of Ethics has been adopted to enhance professionalism and improve honesty and integrity in the industry. Dealers are bound by a Code of Ethics which includes dealer-to-dealer disclosure obligations that support full disclosure to the final retail buyer/lessee.
Home appliances are large investments that should last 5-10 years. You thought that it was about time to buy new appliances for your home: you went to a big warehouse, paid $1500 and got a promise from the seller to deliver it during a week. Nothing happened. In about 10 days you called them and asked when to expect the delivery. “Soon” was the answer. An entire month passed but there was no delivery. You got tired and frustrated and don’t want those appliances any more. You want your money back but the seller refuses to do so. Do you have grounds to make a claim to small claims court?
Usually, you want detailed estimates before moving to another place, getting your car repaired, or renovating your home. The estimate should include as much details as possible about the work to be done and the rates charged. Do you know that once you have come to an agreement, the supplier cannot charge you more than 10% above the estimated price? You cannot be charged for unauthorized repairs or other work. You have right to cancel the agreement. Suppliers including movers or repairers cannot hold your goods ransom in order to pressure you into renegotiating the price.
In the past few years, every one of us has got a gift card from relatives or friends, at least once. Gift cards are rapidly growing in popularity. Here, we are talking not about a 20-bucks gift card but, let’s say, a gift certificate for Caribbean Cruise for your parents or for a dining room furniture set for your newlywed granddaughter. And if something goes wrong, there are rules that ensure Ontario consumers get what they pay for when purchasing gift cards or gift certificates or get their money back.
Moving can be a stressful experience no matter what the distance. With careful planning and understanding of your consumer rights and responsibilities, you can avoid some of the common complaints. But if loss or damage took place, or disagreement occurred about cargo protection coverage, or the service was absolutely unprofessional, it may be a reason to file a claim in Small Claims Court.
Travel is the ninth most common consumer complaint at the Ministry of Government Services. Most involve not being able to cancel a trip and receiving false information about travel packages. Remember, you are protected under the law when you enter into a travel agreement.
If you have already agreed upon $10,000 renovation project and the final price suddenly became $15,000; if you were misled into unnecessary “emergency” repairs; or if … It may be lots of “ifs” between you and your renovation contractor. Don’t let the home renovation contractor talk you into making a large down payment “to pay for materials”. Keep down-payments to a minimum (about 10%) and never pay the full amount of the contract before the work is completed. This helps ensure that the home renovation contractor will stay to finish the job and protects you from financial loss if the company declares bankruptcy before the work is done. But is a costly mistake was made, contact CP Paralegal Solutions as soon as possible and we see what we can do for you.
Motor Vehicle Repair
A written estimate must be provided by the repairer. You must be told in advance if there is a fee for an estimate and the amount of it. The repairer shall give you an invoice indicating, among other things: the name of the consumer and repairer; the make, model, and plate’s number; date consumer authorized the work/repairs; and detail description of the work done and the repairs made. Repairers must provide a warranty on new or reconditioned parts and the labour required to install them for a minimum of 90 days or 5,000km, whichever comes first. If the vehicle becomes inoperable or unsafe due to defective repairs while under warranty, the customer must return the vehicle to the original repairer unless it is unreasonable to do so. If the vehicle is under warranty and repairs are made by another repairer, the consumer may recover the original cost of the work or repairs and reasonable towing charges.
Your basic rights under the Consumer Protection Act
If you believe an individual or business has wronged you, there are actions you can take. But first, you have to know your rights to determine whether you have a legitimate claim. You should know that important legislation protects your consumer rights by setting out ground rules covering most consumer transactions. Here is a list of your basic rights under the Consumer Protection Act, 2002:
|You may be entitled to a cooling off period||Let’s say you make a purchase or sign a contract in your home and then change your mind. If the deal is worth more than $50, you have the right to cancel within 10 days and get your money back. It’s best to cancel by registered mail or fax.|
|Remedies must be timely||When you take advantage of your 10-day cooling off period and notify the company (preferably in writing) that you have changed your mind, the company has 15 days to return your money. The business has the right to take back the goods provided under the agreement by either picking them up or paying for the cost of sending them back.|
|If you are sent goods you didn’t ask for, you don’t have to accept or pay for them||In fact, you may use them or throw them out. You’re not responsible for an unsolicited credit card either – unless you buy something with it.|
|Pre-paid goods or services over $50 must have a written contract||When some part of the contract occurs in the future, written contracts are required for goods or services worth more than $50. The contract must contain complete details of the transaction and full disclosure of any credit terms.|
|Contracts must be clear and understandable||Vague language is discouraged in contracts. All required information must be clear, prominent and easy to understand. If there is a dispute over unclear language, it must be interpreted in favour of the consumer by law|
|Credit terms must be fully disclosed||Anyone providing goods or services on credit must give the consumer a written statement showing all financing charges and the annual percentage rate of the credit transaction. It must also explain how any extra charges would be calculated if you failed to make the payments|
|You have the right to seek help||Some companies add arbitration clauses to contracts that require you to use a private arbitration process to resolve complaints instead of going to court or seeking assistance from the Ministry of Consumer Services. You are not bound by these clauses, even if you have accepted the agreement|
|Misrepresentation is illegal||All charges in a contract must be what they say they are. For example, a business may not add a $20 surcharge for a “tax” that is not really for tax. Make sure you understand what each charge is for and that it’s valid.|
|Sales incentives may not be false, misleading or deceptive||A salesperson can offer you an incentive to help find other buyers, but the description of the incentive cannot be false, misleading or deceptive|
|Consumer agreements must disclose all details||If a company isn’t delivering on its contract with you, or if you encounter an aspect of the deal the company was required to disclose by law but didn’t, you have the right to cancel within one year|
|Your goods cannot be repossessed if you have paid 2/3 or more||If you have paid at least two-thirds of the cost of your goods, a seller can’t take them back from you except by court order. But remember, if you miss a payment, the seller can take you to court to get full payment, and this could hurt your credit rating|
|Deliveries must be on time||If a delivery doesn’t arrive within 30 days of the promised date, you can cancel the contract by sending a cancellation letter. But you lose the right to cancel the agreement if you accept delivery after the 30 days.|
|Anyone who violates the Consumer Protection Act, 2002 may be subject to prosecution||Individuals violating certain sections of the act are liable to a fine of up to $50,000 or imprisonment of up to two years less one day. A corporation can be fined up to $250,000|
“… For Services Rendered”
Sorry, we are not talking about For Services Rendered play by Somerset Maugham. “For services rendered” is a more formal way of saying “for work done”. A service is the intangible and insubstantial equivalent of an economic good. It cannot be touched, gripped, handled, looked at, smelled, tasted or heard. A service cannot be turned over from the service provider to the service consumer nor returned from the service consumer to the service provider. Solely, the service delivery can be commissioned to a service provider who must generate and render the service at the request of a service consumer.
Some explanations about Services Rendered claims in Small Claims Court
Each service is unique. It is one-time generated, rendered and consumed and can never be exactly repeated as the point in time, location, circumstances, conditions, current configurations and/or assigned resources are different for the next delivery, even if the same service consumer requests the same service. Just a simple example: the taxi service which transports the service consumer from his home to the opera is different from the taxi service which transports the same service consumer from the opera to his home – another point in time, the other direction, maybe another route, probably another taxi driver and cab.
Almost every discussion regarding “buyer-seller/service provider” transactions are based on the premise that consumer rights need to be protected in any possible way. It is not an unfair practice, but what is largely overlooked is the notion that sellers/service providers also have rights, risks and costs.
- You were sewing curtains for a week from sunrise to sunset keeping in mind every detail that you’ve agreed upon with your client but when you installed the draperies she said it was not the ones that she dreamt about and refused to pay.
- You published an ad from a mortgage broker in your glossy paper full colour magazine but the broker didn’t want to pay because he didn’t get any calls.
- You wrote 200 pages of texts for your customer’s website but after 8 months your invoice is still unpaid. The examples are endless.
The main types of Services Rendered claims in Small Claims Court are:
- Unpaid accounts for services rendered
- Unpaid loans
- Unpaid rent
- No customer satisfaction for the quality of services rendered
Unpaid Account / Invoice: Unpaid invoices or accounts, failure of the contractee to pay for the work performed, goods sold and delivered or services rendered by the contractor, is a form of breach of contract. There are many ways to remedy a breached contract. Usually, the remedy for unpaid invoices or accounts is an award of money damages.
Non-Sufficient Funds (NSF) is a term used in the banking industry to indicate that a demand for payment (a cheque) cannot be honoured because insufficient funds are available in the account on which the cheque was drawn. In simplified terms, a check has been presented for clearance, but the amount written on the check exceeds the available balance in the account.
If you find yourself in the unfortunate, but common, situation where a customer or client has not paid you for services rendered or for merchandise already delivered, you may file Unpaid Account / Invoice claim in Small Claims Court if the amount owed to you is $25,000 or less.
Wrongful dismissal is a legal term, describing a situation in which an employee’s contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in employment law. A number of expressions are commonly used to describe situations when employment is terminated. These include “let go,” “discharged,” “dismissed,” “fired” and “permanently laid off.” The scope for wrongful dismissal varies according to the terms of the employment contract.
An employer is entitled to dismiss an employee according to the terms of the employment contract. There are oral employment contracts, and written employment contracts, and combinations of oral and written employment contracts. In Canadian common law, there is a basic distinction as to dismissals. There are dismissals with cause, and dismissals without cause. Cause is employee behaviour that constitutes a fundamental breach of the terms of the employment contract. Where cause exists, the employer can dismiss the employee without providing any notice. If no cause exists yet the employer dismisses without providing lawful notice, then the dismissal is a wrongful dismissal. A wrongful dismissal will allow the employee to claim monetary damages.
Fired for “Just Cause”
Employers can fire employees for “just cause” – without notice, or without pay instead of notice. “Just cause” usually means a good reason to fire you for:
- not performing your job duties
- doing something seriously wrong, like stealing from your employer
- using drugs or alcohol that interfere with your job performance
- ignoring a strict workplace rule
- intentionally disobeying your boss
- consistently refusing to follow a clearly defined chain of authority
- putting yourself in a conflict of interest; for example, you have started a business that directly compete with your employer
- ignoring a workplace policy, procedures, or rules
- being dishonest about something important
- being incompetent; for example, if you got a job only because you said you could repair automatic transmissions, and it turns out you cannot
Situations for Filing a Claim for Wrongful Dismissal in Small Claims Court
An employer is not required to give an employee a reason why his or her employment is being terminated. However, under the Employment Standards Act, 2000 (ESA), there are some situations where an employer cannot terminate an employee’s employment even if the employer is prepared to give proper written notice or termination pay. Wrongful dismissal may be constituted (but not limited) by the following:
- Discrimination: The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, age, or sexual orientation.
- Retaliation: An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination.
- Employee exercising a right under the ESA or asking questions about the ESA
- Employee’s refusal to commit an illegal act: An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
- Employee’s refusal to work in excess of the daily or weekly hours of work maximums
- Taking a leave of absence specified in the ESA more often then employer considers “reasonable”
- Employer not following own termination procedures: Often, the employee company policy outlines a procedure that must be followed before an employee is fired. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful dismissal
- Employer harasses or abuses an employee
- Employer gives an employee an ultimatum to “quit or be fired”
Under the Employment Standards Act, 2000 (ESA), certain employees are not entitled to notice of termination or termination pay. Examples include but not limited to the following:
- employees who are guilty of willful misconduct, disobedience, or willful neglect of duty that is not trivial and has not been condoned by the employer
- employees on temporary layoff
- employees who refuse an offer of reasonable alternative employment
- employees who have been employed less than three months
To file a claim for Wrongful Dismissal with the Ministry of Labour or with Small Claims Court?
If you were wrongfully dismissed you have two options:
- to sue your employer in Small Claims Court
- file a claim with the Ministry of Labour of Ontario
You cannot sue your employer for wrongful dismissal and have a claim for termination or severance pay investigated by the Ministry of Labour of Ontario for the same termination or severance. You have to choose one procedure or the other.
Written Notice of Termination
Under the Employment Standards Act, 2000 (ESA):
- employer can terminate the employment of an employee who has been employed continuously for three months or more if the employer has given the employee proper written notice of termination and the notice period has expired;
- employer can terminate the employment of an employee without written notice or with less notice than is required if the employer pays termination pay to the employee.
When an employee is terminated, the written notice required under the ESA is generally determined by how long someone has been employed by an employer. The following table specifies the periods of statutory notice required:
|Length of Employment||Notice Required|
|Less than 3 months||None|
|3 months but less than 1 year||1 week|
|1 year but less than 3 years||2 weeks|
|3 years but less than 4 years||3 weeks|
|4 years but less than 5 years||4 weeks|
|5 years but less than 6 years||5 weeks|
|6 years but less than 7 years||6 weeks|
|7 years but less than 8 years||7 weeks|
|8 years or more||8 weeks|
During the statutory notice period, an employer must:
- not reduce the employee’s wage rate or alter a term or condition of employment;
- continue to make whatever contributions would be required to maintain the employee’s benefits plans; and
- pay the employee the wages he or she is entitled to, which cannot be less than the employee’s regular wages for a regular work week each week.
An employee who does not receive the written notice required under the ESA must be given termination pay in lieu of notice. Termination pay is a lump sum payment equal to the regular wages for a regular work week that an employee would otherwise have been entitled to during the written notice period. An employee earns vacation pay on his or her termination pay. Employers must also continue to make whatever contributions would be required to maintain the benefits the employee would have been entitled to had he or she continued to be employed through the notice period.
Extending Time Limits
Although the limitations on recovery of wages and filing a claim are set out in the legislation and mandatory, it may be possible to make a claim that would otherwise be outside the applicable time limit if:
- an employee has been misled as to his or her entitlements under the ESA by his or her employer and for that reason delayed in filing his or her claim
- the employee took prompt steps to file a claim after he or she found out that what the employer said about the ESA entitlement was inaccurate
ENFORCEMENT OF JUDGMENT
Congratulations! You’ve won the case! But it is a little bit too early to celebrate: to have a promissory note for $10,000 and actually have $10,000 in your bank account are two different things. Obtaining a judgment may be just the beginning. A judgment is an order of the court; it is not a guarantee of payment. Most of us think that when the trial is over and the judge’s decision is made or a default judgment is obtained, the successful party will automatically be paid by the debtor and that is the end of the matter. Sorry, we have to disappoint you.
Although, as a creditor you have many different tools available to help you collect the money you are owed under the order, the process is not that simple. Here, we will give you general information about what you may have to do after you have your judgment in order to enforce it.
If you are a debtor who has lost your case and now has to pay, we will provide you with some information of the options you have. For example, if you do not have money or assets available with which to pay the judgment, or if you disagree with the judgment made, you may wish to take some of the steps outlined below.
There might be a few enforcement options:
- Examination Hearing
- Garnishment Process
- Writ of Seizure and Sale of Personal Property
- Writ of Seizure and Sale of Land
- Writ of Delivery
- Consolidation Order (a debtor who has more than one Small Claims Court judgment being enforced against them will find information about the process to follow to get a Consolidation Order)
If you are a creditor
You can start taking enforcement steps immediately after judgment is given. However, whether your judgment was made by a judge after a trial or settlement conference, or whether it was obtained by default, the best place to start is often with a simple written request for payment. If the letter asking for payment is unsuccessful and/or you are unable to reach a mutually satisfactory agreement with the debtor, you will have to take other steps to enforce your judgment. Generally, the faster you act, the better the results will be.
The next step you take will depend on the information you have about the debtor’s assets and ability to pay. If you have sufficient information, you can take an enforcement step immediately. If you do not know where the debtor banks, what assets they have, or where they may work, you could begin the enforcement process by requesting an examination hearing.
As a creditor, you may have to enforce the judgment. In order for you to collect, the debtor must have one of the following:
- assets that can be seized and sold; or
- debt owing to the debtor by a third party (e.g. bank account, employment income) that can be garnished.
If the debtor does not have the ability to pay immediately, you may choose to wait. The person may get a job in a few months, for example. You will still have your judgment and you can attempt to collect it then through a notice of garnishment. If the judgment debtor goes bankrupt, the rules change completely. You will not be able to continue with enforcement proceedings. Many potential complications may arise during the enforcement process. For example, there may be a dispute about who really owns the property, property may be jointly owned, or there may be security interests.
If you are a debtor
You may receive a letter from the creditor asking for prompt payment after judgment has been given at trial, at the settlement conference, or by default. Once you are aware of the judgment, you should contact the creditor immediately. If you are able to pay the full amount of the judgment, send your payment to the creditor at the address provided in the claim or letter. If you are unable to pay the judgment in full, you should still contact the creditor to make arrangements for payment. Be sure to let the creditor know if there are any circumstances which affect your ability to pay right away, and make a proposal for paying the judgment within a reasonable timeframe. If you are unable to continue meeting payment arrangements that you have agreed to, you should notify the creditor and try to make other mutually satisfactory arrangements.
The Notice of (Debtor) Examination is issued by the court clerk on request of the creditor. Before the court office can issue a notice requiring the debtor to come to Small Claims Court for an examination of the debtor, the creditor must complete a sworn statement – affidavit for examination. After that the court office will issue the notice of examination requiring the debtor to come to court. At this hearing, the debtor’s financial status will be reviewed to determine their ability to pay. After the hearing, the court may order the debtor to pay the judgment in full or by installments, or may delay the payment for a period of time if the court believes the debtor is unable to pay at that time. As the creditor, you are entitled to ask questions of the debtor at an examination hearing. The questions should be about the debtor’s financial status and the debtor’s ability to pay the judgment. The judge may also ask questions at this hearing. The judge will also rule if a question is improper or needs to be answered.
Commencing such an examination procedure alone may be useful to encourage payment. Where a person is found in contempt of court for refusing to answer questions or provide records at an examination hearing, the maximum penalty has been is 5 days in jail, effective January 1, 2011.
Garnishment is a court order demanding that a third party who owes money to a judgment debtor pay the judgment creditor instead. For example, if the judgment debtor has a bank account with money in it, the court can require the bank to pay you. The most common type of garnishment is wage garnishment. It is the process of deducting money from an employee’s monetary compensation (including salary), as a result of a court order. Wage garnishments continue until the entire debt is paid or arrangements are made to pay off the debt. Garnishments can be taken for any type of debt. Garnishment of wages is restricted to 20%. To get a garnishment order, you must apply to the court.
Writ of Seizure and Sale of Land
A creditor can file a writ of seizure and sale of land against a debtor. The writ would encumber any land presently owned or land which may be purchased in the future by the debtor. The writ of seizure and sale of land can be very effective in the long run since it will be difficult for the debtor to sell or mortgage the land until the debt is paid.
The writ can be filed whether or not the debtor owns land at the time of filing. However, if you prefer not to file until you are certain the debtor owns land, for a fee you can do a name search at the land registry or land titles office (Ministry of Government Services, Registration Division) located in the area where you think the debtor may own property.
The enforcement office has a general duty to act reasonably and in good faith towards all parties. The enforcement office can refuse to act if the estimated costs of executing the writ of seizure and sale are greater than the debtor’s equity in the property to be seized.
The writ will expire six years from the date it is issued, unless you renew it for an additional six-year period. A writ may be renewed before it expires by filing a Request to Renew a Writ of Seizure and Sale with the enforcement office. Each renewal is valid for six years from the previous expiry date. There is a fee to file and renew a writ.
To start the writ of seizure and sale of land procedure you have to:
- fill out an Affidavit for Writ of Seizure and Sale of Land
- fill out a Writ of Seizure and Sale of Land
- file the affidavit and writ in the Small Claims Court where you obtained judgment.
Court staff will issue the writ and return the original to you to file in the enforcement office. There is a fee for issuing the writ in the Small Claims Court and a fee for filing it in the enforcement office. The writ of seizure and sale of land process is very complicated. Any party involved in a seizure and sale of land may choose to get legal advice.
Writ of Seizure and Sale of Personal Property
If the debtor has been ordered by the court to pay the creditor money but they have not paid, the creditor can ask the enforcement office to take specific personal possessions belonging to the debtor and sell them at public auction so that the money can be used to pay the judgment debt.
To start the writ of seizure and sale of property procedure you have to:
- fill out an Affidavit for Writ of Seizure and Sale of property
- fill out a Writ of Seizure and Sale of property
- file the affidavit and writ in the Small Claims Court where you obtained judgment.
Court staff will issue the writ and return the original to you to file in the enforcement office. There is a fee for issuing the writ in the Small Claims Court and a fee for filing it in the enforcement office. The goods will be sold at the public auction.
The writ will expire six years from the date it is issued, unless you renew it for an additional six-year period. A writ may be renewed before it expires by filing a Request to Renew a Writ of Seizure and Sale with the Small Claims Court office. Each renewal is valid for 6 years from the previous expiry date. There is a fee to file a writ.
Under the Execution Act, a debtor has a right to choose the goods that make up the exemptions and is entitled to certain exemptions from seizure of personal property such as:
- household furniture, utensils, equipment, food and fuel
- tools and instruments used in the debtor’s business (other than tillage of the soil or farming)
- tools, books and instruments used for the tillage of the soil or farming and livestock, fowl, bees and seed
- one motor vehicle worth less than the specified amount
At any time up to the sale of the seized items, the debtor can prevent the sale by paying the amount of the judgment, plus costs and interest. The debtor can also ask the court to have the seizure postponed or to pay the judgment in installments.
If the creditor is requesting that a motor vehicle, snowmobile or boat be seized, they must provide the court with proof that the Personal Property Security Act search and Repair and Storage Liens Act searches have been made to show whether there are any liens or other securities registered against the vehicle; the amounts of the liens or securities; and whether there is enough equity in the vehicle for it to be seized and sold. Also, Ministry of Transportation search to prove that the vehicle is owned by the debtor. For a motor vehicle only: An up-to-date copy of a used vehicle information package, which can be obtained from the Ministry of Transportation, has to be attached. (This should not be more than one week old.)
It is a good idea to confirm beforehand whether this procedure will be worthwhile because the costs of it are relatively high. The creditor risks paying high fee with no chance of recovery if the debtor does not have any goods worth seizing and selling.
For information about where searches can be conducted, you can contact the Ministry of Government Services Helpline at (416) 314-8880 or toll free in Ontario at 1(800) 361-3223.There is a fee payable to that Ministry for the search and the search will not be conducted over the phone.
Writ of Delivery
When a person or business has personal property that does not belong to them and refuses to return it to the rightful owner, the owner can request a court order for a writ of delivery. This writ authorizes enforcement staff to take the specific items and return them.
You must provide the court with a full description of the personal property (i.e. serial numbers, make, model, photographs, and the exact location where the items can be found and proof of ownership, where applicable).
If the personal property referred to in a writ of delivery cannot be found or taken by enforcement staff, you can ask the court, by filing a notice of motion, for an order directing enforcement staff to seize any other personal property owned by the debtor.
If you obtain this type of order, enforcement staff will keep the personal property until the judge makes an order for its disposition (e.g. orders the sale of the property). You must pay any additional costs to execute the order or store the personal property during this time.
If you are served with an order for a writ of delivery, you may make a motion to the court in relation to the order. However, the goods may still be seized unless you have a court order rescinding the writ of delivery.
Once a judge grants the order for a writ of delivery, you fill out an Affidavit for Enforcement Request and Writ of Delivery. The court office will sign the writ and return the writ and affidavit to you to take to the enforcement office. Then you have to file the original writ and a copy of the affidavit with the enforcement office. The enforcement office will contact you with a date and time when the writ will be executed. You will need to coordinate any necessary arrangements for that date and time. Depending on the size of the items, you may wish to hire professional movers or rent a vehicle large enough to transport them. You may also need to hire a locksmith to get access to them. You must also ensure that enough resources are available to conduct retrieval of your property in an efficient and timely way. For example, if property to be seized must be dismantled prior to removal from a person’s possession, you should hire enough people to dismantle it quickly. You are responsible for making and paying the costs of these arrangements and you must pay enforcement staff’s anticipated mileage expenses. Enforcement staff will carry out the seizure of goods in accordance with the order and return them to you, if possible.
If you are a debtor and you have more than one outstanding Small Claims Court judgment against you, you can apply to the Small Claims Court where you live for a consolidation order. If granted, this order would combine the judgment debts and set up a schedule of repayments for all creditors named in the order. As long as you make the payments as ordered, no other enforcement measures can be taken against you to collect the debts included in the order, except each creditor could seek issuance of a writ of seizure and sale of land and file it with the enforcement office (sheriff).
To ask for a consolidation order, you have to file a Notice of Motion and Affidavit listing the judgments against you, your debts, your income from all sources and any family support obligations. The notice of motion and affidavit must be served on each creditor at least seven days before the scheduled motion date. At the hearing, a judge will hear evidence about your income and expenses and may make an order combining your debts and order payments to be made in installments. If the order is terminated, no further consolidation order can be made until a year has passed from the date of the termination.
Do not make a mistake trying to go through the enforcement of the judgment process alone! Ask for legal help.