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;

(c) to encourage settlement of the action;

(d) to assist the parties in effective preparation for trial; and

(e) to provide full disclosure between the parties of the relevant facts and evidence.  O. Reg. 78/06, s. 27.”

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unconscionable representation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rule 12.02 states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eviction for Non-Payment of Rent

Many landlords decide to represent themselves on a non-payment of rent applications at the Landlord Tenant Board Ontario (LTB) as they believe it is easy. A lot of the time it is easy. However, it can become incredibly complex. Most of the time you will have no advanced notice of issues the tenant will raise to make your non-payment of rent application complex.

An L1 application is filed at the LTB to obtain a judgment and evict a tenant. This is preceded by a N4 notice served on the tenant.

If the N4 notice contains certain errors the board member may decline to give you an eviction order. Errors such as a missing apt number, improper termination date, math errors, and failing to properly state the start and end of a month or other term may mean no eviction order.

Section 82 of the RTA allows a tenant to raise any issue on a non-payment of application which they could raise if they brought their own application. The kicker is they are not required to give the landlord any advance notice of their intention to raise these issues.

Issues which a tenant can raise without notice to you include: alleging the landlord collected an illegal deposit or fee, harassment, illegal entry, interfering with the tenant’s reasonable enjoyment, and maintenance issues.

A skilled paralegal Ontario may be able to deal with these issues without notice. Self-represented landlords usually don’t have the skills, knowledge of the statue and case law, or the understanding of the process to properly oppose the tenant’s section 82 issues.

Most self-represented landlords are unaware or don’t take into account the effect of section 83 of the RTA seriously.

Section 83 requires the board to consider all the circumstances in deciding whether it would be unfair to delay or deny an eviction

Even if the landlord proves that rent is owed the board still has the power to delay or deny an eviction. If the tenant proves certain circumstances exist the board must deny an eviction.

At an L1 non-payment of rent application the tenant can try to work out a deal with the landlord to enter into a payment plan to pay off the rent owing.

Many self-represented landlords are unaware that if they refuse to enter into a reasonable payment plan, the board may impose a payment plan on the landlord.

Paralegals know how to properly deal with these situations. Many self-represented landlords do not know what to say to the board member regarding these issues. How to evict a tenant in Ontario is not as easy as some landlords believe.

If you need representation on a non-payment of rent application, contact Marshall Yarmus at Civil Litigations at www.CivilParalegal.com or call 416-229-1479

Sample Letter to new Minister of Housing Steve Clark

Another paralegal Ontario has posted a “sample letter” recommending that landlords who are unsatisfied with the Residential Tenancies Act and the landlord tenant board Ontario write to the new PC Minister of Housing, Steve Clark using his template.

I share many of the views of Harry Fine. Here is the link to his blog which you can copy and paste:

http://landlord-law-ontario.blogspot.com/2018/07/sample-letter-to-new-minister-of.html