LawFact of the Day: Civil Litigation

Here is your daily LawFact from Wise Law for Wednesday June 29, 2016. Today we are talking about Civil Litigation.

A video posted by Wise Law Office (@wiselaw) on Jun 29, 2016 at 6:28am PDT

Ontario’s Small Claims Courts have jurisdiction to award damages of up to $25,000 in lawsuits brought before the Court.  

In 2012-2013, almost 43% of all new civil proceedings in Ontario were commenced in the Province’s Small Claims Courts.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

This Week at the Court of Appeal: 11-01-28

Each week, Wise Law Blog reviews key decisions from the Ontario Court of Appeal. Here is this week's offering:

R. v. M.B. A sexual assault case where an uncle was convicted of sexually assaulting his two nieces and his nephew. The defendant appealed both charges (one in relation to his nieces, the other to his nephew).

The Court ordered new trials in relation to both. In regards to the nieces, the Court had multiple concerns. They felt there was evidence that the two nieces had had the opportunity to talk with each other about their experiences and possibly collude or grow confused, and that the court had not given a proper warning that this might have happened. The judge also did not warn the jury that the girls' evidence was self-contradictory in some respects and that the children's evidence should be viewed in that light, which the Court of Appeal found troubling. Finally, they felt that the Crown's closing address, which was vitriolic and inflammatory towards the defendant, was inappropriate and that the trial judge's failure to order a mistrial or order the appropriate corrective instructions to the jury regarding the Crown's rhetoric.

In regards to the nephew, the Crown's case relied heavily on similar fact evidence, and the Court pointed out that under Canadian law the Crown may not rely on issue estoppel to prove its case, overturning the conviction quite simply. Read-the-whole-case rating: 3.

R. v. May. A Crown application to appeal sentences of two young men convicted of robbery. The young men (19 and 21) pled guilty to the charge and were sentenced two years less a day plus three years' probation (Mr. May) and 21 months plus three years' probation (his contemporary, Mr. Whalen). The crime itself was planned. May and two other associates (unnamed) committed a home invasion and threatened to kill the family inside. (Mr. Whalen was the getaway driver and did not enter the home.) At one point during the robbery a gun discharged and killed one of the other two members of May and Whalen's gang.

Both May and Whalen were placed on strict bail for the year and a half preceding the trial, and during that time both men were independently evaluated and found to be proceding very well along a course of rehabiliation and had "turned their lives around," as May in particular came from a bad background and both men had prior offences as youths. The Crown, however, despite recognizing their improvements as citizens, still wished for a stricter sentence.

The Court of Appeal disagreed with the Crown, stating that, although the sentences given to May and Whalen were certainly on the light end of the potential range of sentences available, measuring the need for a retributive sentence versus the need to protect May and Whalen's rehabiliation (which if successful would be extremely valuable) was a difficult task and the judge's final sentences - which were due a reasonable amount of deference in any appeal - were not outside the boundary of reasonableness. Read-the-whole-case rating: 2, if only because this is a somewhat rare sort of appeal for the Court to consider.

Grover v. Hodgins. A Small Claims Court order for a portion of legal fees that the respondents paid to prosecute a civil action relating to a condominium complex. The action was one where Ontario-based owners of the complex, located in British Columbia, agreed to share legal costs of an action related to management of the complex. One set of owners (the Grovers, the appellants) refused to join in the action, but all other owners refused. When the action successfully resolved, the respondents (Hodgins and his wife) brought action against the Grovers for damages arising from the breach of an agreement to contribute to costs, or alternately damages that the Grovers were unjustly enriched. The Small Claims Court judge decided that the breach of contract claim failed, but awarded the damages for unjust enrichment.

The Court of Appeal found that both claims failed. The Court reaffirmed the Small Claims Court decision regarding breach of contract: there was insufficient evidence to demonstrate the existence of binding contract and no moment demonstrated where they could have formed one on an informal basis. As regards the unjust enrichment claim, the Court of Appeal pointed out that unjust enrichment requires benefit conferred, a corresponding loss, and an absence of any juristic reason for the enrichment.

The issue of whether a benefit was conferred was questionable; that the Grovers' condo increased in value following the action was not necessarily relevant, since they had essentially received services, and if a defendant does not want services they do not necessarily benefit from them since they might have preferred to decline the benefit given the choice. Furthermore, the Court stated that the trial judge had incorrectly found a corresponding deprivation, since the defendants had not been deprived - they had paid for legal services and received them. Therefore, there could be no unjust enrichment.

More important than the disposition of the case, however, was that the Court agreed with both parties that Small Claims Court has jurisdiction to consider claims for equitable relief in this manner. (No previous decision of the Court of Appeal has provided binding authority for the ability of a Small Claims Court to consider equitable claims.) The Court stated that the history of the Small Claims Court is one of "progressive development toward providing increased access to justice," found that there was no statutory language explicitly preventing a Small Claims Court from hearing equitable claims matters, and finally decided that interpreting the Courts of Justice Act to say that Small Claims Courts could not hear equitable claims would run counter to the objective of providing citizens with inexpensive access to civil justice. Therefore, the Court held that where equitable claims fell under the Small Claims Court limit of $25,000, the Small Claims Court could hear them. Read-the-whole-case rating: 4 as this is a fairly major step for the Small Claims Court (and for articling students, like this writer, who are able to appear at that Court).

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Ontario A.G. Launches New "Legal Forms Assistant"

Ontario's Attorney General has launched a new online "Legal Forms Assistant" to assist unrepresented litigants to complete family law and small claims court forms.

According to a news release from the A.G.'s office:

"We're making our family courts more affordable and less complicated. This new tool simplifies the process and we are also making progress in providing the information upfront to help families reach informed decisions."

- Chris Bentley, Attorney General

The online programme uses an interactive question-and-answer format to walk individuals through the information required to complete these forms.

It does appear to represent a significant improvement on the stand-alone, locked-format Family Law Rules Forms that are also available online.

Cudos to the A.G. on its continuing efforts to upgrade and modernize Ontario Courts' interface with public.

We can only hope that e-filing of court forms in the Province will be just around the corner...

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Levitt's Lament

Employers' lawyer Howard Levitt breaks the "bad news" to his Financial Post readers - Suing Employers Soon to Get Easier.

On Jan. 1, the most dramatic changes to the rules of court since 1985 will be implemented. These rules will disable three of the most valuable weapons in employers' litigation arsenal-- costs, complexity and delay.

The Small Claims Court jurisdiction will be raised to $25,000 from $10,000. The intent is to make legal rights accessible to workers of every strata. The incentive to pursue perceived rights will escalate in this forum, where self-representation is the norm and the costs of losing negligible.

Lawsuits from $50,000 to $100,000 will also become simpler, faster and cheaper. The Simplified Procedure... will be expanded to include claims to $100,000. Until now, these larger claims were subject to unlimited examination for discovery; the new rules restrict them to two hours.

Any lawyer can conduct a journey-man like mediation because much of the work is done by the mediator. Other than trials, which few dismissal cases reach, a lawyer's relative skill is best shown at discoveries. That is where admissions are obtained that result in settlement or make the result a foregone conclusion. Frequently, I have had employees make admissions at discovery that end their cases.

Being cross-examined for hours or days, employees who are less prepared than at trial, face having substantial doubt cast on the veracity of their facts and their principles put under tortuous scrutiny, and often end up dropping the suit or accepting a minimal settlement to avoid a trial. That ability to weaken the employee's resolve is gone under the new rules: Two hours is seldom sufficiently formidable to concede early defeat.

It is time for a new employers' playbook, apparently. What a stunning commentary and public admission as to defence tactics.

It seems the time-honoured strategy of delay, out-spend, out-maneuver and 'interrogate into submission' will have only a limited future in employment law litigation Ontario.

That kind of casts access to justice amendments in a whole new light, now doesn't it?

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

January 1, 2010: Ontario Small Claims Court Monetary Limit Rises to $25,000

Transferring Actions from Ontario Superior Court to Ontario Small Claims Court

As we noted in our earlier posts on this topic, on January 1, 2010 the  monetary jurisdiction of Ontario's Small Claims Courts will rise from $10,000 to $25,000. 

Suppose you have an ongoing claim for $25,000 or less in Ontario Superior Court. What will happen to your case on January 1st? 

Will it automatically be transferred to Small Claims Court?

Apparently not. 

According to the Ontario Ministry of the Attorney General, “proceedings in the Superior Court of Justice valued at less than $25,000 will not be automatically transferred to the Small Claims Court." 

Pursuant to Section 23 of the Courts of Justice Act. however, proceedings may be administratively transferred to a Small Claims Court  if all parties consent.  

Section 23 provides:

Jurisdiction

23.(1)The Small Claims Court,

(a) has jurisdiction in any action for the payment of money where the amount claimed does not

 exceed the prescribed amount exclusive of interest and costs; and

(b) has jurisdiction in any action for the recovery of possession of personal property where the value of the property does not exceed the prescribed amount. R.S.O. 1990, c. C.43, s. 23 (1).

Transfer from Superior Court of Justice

(2)An action in the Superior Court of Justice may be transferred to the Small Claims Court by the 

local registrar of the Superior Court of Justice on requisition with the consent of all parties filed before the trial commences if,

(a) the only claim is for the payment of money or the recovery of possession of personal property; and

(b) the claim is within the jurisdiction of the Small Claims Court. R.S.O. 1990, c. C.43, s. 23 (2); 1996, c. 25, s. 9 (17).

Idem

(3)An action transferred to the Small Claims Court shall be titled and continued as if it had been commenced in that court. R.S.O. 1990, c. C.43, s. 23 (3).

If the parties do not all consent, a transfer may only be effected by an order of the Superior Court of Justice upon a motion. There may be some interesting disputes on this issue.

Why might a transfer to Small Claims Court be opposed? 

A significant concern may be that the costs incurred in a Superior Court action already exceed the maximum costs that are  available in Small Claims Court, where costs awards will  remain capped at 15% of a claim's value.  In a $25,000 suit, for example, costs awards will thus be limited to $3,750. 

There may be other tactical advantages to remaining in Superior Court - a party may wish to to retain access to certain procedures that are available in Superior Court, but not in Small Claims Courts.  

For example, documentary disclosure and production entitlements in Superior Court actions are significantly broader than those in Small Claims Court.

In Superior Court actions, each party is required to produce a comprehensive Affidavit of Documents listing all relevant documentation touching on the matters in question.  The documentary disclosure rules in Small Claims Courts are much narrower and considerably less onerous.

Rule 13.03 (2) of the Ontario Small Claims Court Rules provides:

Disclosure

(2)  At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,

(a) a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence; and

(b) a list of proposed witnesses (Form 13A) and of other persons with knowledge of the matters in dispute in the action. O. Reg. 78/06, s. 27.

Rule 13.05 (1) additionally empowers a Judge presiding at a Small Claims Court settlement conference to direct that certain documents must be produced:

13.05  (1)  A judge conducting a settlement conference may make any order relating to the conduct of the action that the court could make. O. Reg. 78/06, s. 27.

(2)  Without limiting the generality of subrule (1), the judge may,

(a) make an order,

....(vi) directing production of documents

Beyond that, a party may wish to remain in Superior Court for less than legitimate reasons - for example, to avoid the speedier trial of a proceeding that will likely occur in Small Claims Court.

A cautionary note - those who unreasonably resist a transfer to Small Claims Court may face potential costs sanctions under Rule 57.05 the Ontario Rules of Civil Procedure, which govern Superior Court actions:  

COSTS WHERE ACTION BROUGHT IN WRONG COURT

Recovery within Monetary Jurisdiction of Small Claims Court

57.05  (1)  If a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs. O. Reg. 377/95, s. 4.

(2)  Subrule (1) does not apply to an action transferred to the Superior Court of Justice under section 107 of the Courts of Justice Act. R.R.O. 1990, Reg. 194, r. 57.05 (2); O. Reg. 292/99, s. 2 (2).

Default Judgment within Monetary Jurisdiction of Small Claims Court

(3)  If the plaintiff obtains a default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with that court’s tariff. O. Reg. 377/95, s. 4.

Disputes over transfers might be less likely if the Small Claims Court Rules change, as they did in British Columbia when the B.C. Small Claims Courts' monetary limit was increased. 

B.C. Small Claims matters are now subject to three different procedural tiers, depending on the amount claimed in a lawsuit.

Will that happen in Ontario? There’s no word yet from the Ministry about whether there will be any significant new Small Claims Court Rules, and if so, what they might be. 

Stay tuned...

- Garry J. Wise and Bill Rogers, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Update on Ontario Small Claims Court Changes

Ontario's Small Claims Courts, which are the busiest civil courts in the Province, will be getting considerably busier on January 1, 2010.

As we noted in our December 11, 2009 post, the arrival of the new year will bring an increase in the Court’s maximum monetary jurisdiction from $10,000 to $25,000 and a significant influx of new, larger cases is likely to follow.

The increased Claim limit has been under consideration for quite some time. In November 2007, former Associate Chief Justice of Ontario, Coulter Osborne, who headed the Civil Justice Reform project committee, submitted his findings and recommendations to the Ministry of Attorney General, including a recommended increase in the monetary limit in Ontario Small Claims Courts proceedings.

The recommendations were intended to enhance access to justice for Ontario residents by reducing the legal costs of litigation, and simplifying the prosecution of smaller, civil actions in the Province.

The changes ahead will bring Ontario in line with British Columbia, Alberta, the Yukon and Nova Scotia, all of which have a $25,000 Small Claims Court limit. Saskatchewan, too, will soon follow suit.

Ontario's Small Claims Court is a branch of the province's Superior Court of Justice. Examples of typical claims filed in the Small Claims Court include actions related to:

• unpaid accounts for goods or services;
• unpaid loans and rent;
• compensation for property damage;
• wrongful dismissal of employment;
• damages for personal injuries;
• damages for breach of contract.

The majority of the cases in Ontario's Small Claims courts are heard by Deputy Judges, who are lawyers appointed to preside, part-time, over hearings conducted at the Court.

The imminent raise in monetary jurisdiction will likely lead to a significant increase in the Court's case loads.

According to the Osborne report, 75,041 new proceedings were commenced in Ontario's Small Claims Court in 2005-2006. By comparison, during the same period, only 63,251 new civil proceedings were commenced the province's Superior Courts.

Of those 63,251 Superior Court cases, 6,555 included claims for amounts between $10,001 and $25,000, and would therefore be typical of cases likely to proceed in the expanded Small Claims Court system.

According to the Osborne Committee, the increased jurisdiction limit is likely to result in a need for additional facilities, court staff and judges.

Toronto, for example, has only one Small Claims Court, housed on one floor in a small office building at 47 Sheppard Avenue East, in the city’s Yonge and Sheppard area. According to a recent Ministry of Attorney General press release, however, a new court house is anticipated to be built in Toronto's west end. Whether the new facility will house a Small Claims Court remains unclear.

No plans have been announced yet for the appointment of additional deputy judges to service the expanded Courts, nor have amendments to the Court's Rules and procedures yet been tabled.

Time is running short for the announcement of such changes.

Potential litigants in these "smaller" $10,000.00 to $25,0000.00 claims already face daunting questions on how to proceed:

• In which of the Province's courts should new legal proceedings now be commenced?
• Will it be more cost-effective or strategically wise to simply wait until January to start new claims (so long as no limitation periods will pass in the interim)?
• If a proceeding is commenced today in Superior Court that will be within the future Small Claims limit, will there be a subsequent requirement to transfer courts?
• If an action is commenced today for $10,000.00 in Small Claims Court, will it be possible - or simple - to amend a Claim in January to increase the sum requested?

With little, specific guidance from the Attorney General's office as to the transition ahead, access to justice is not benefiting from a current paucity of information.

The expansion of the Court will have significant procedural and practical implication that must be addressed by current and future litigants - and legal professionals:

• the ability of successful litigants to recover partial or substantial indemnity for their legal fees is significantly reduced in Small Claims Courts. Costs awards in the Court are currently capped at 15% of the value of a claim. As a result, the maximum costs award (i.e., on a $25,000 claim) will be $3,750.00;
• Junior lawyers and articling students will require training in Small Claims Court advocacy. “Firms will have to promote the competency of their articling students to handle these files,” says Joshua Krane, an articling student with Gowling Lafleur Henderson LLP, in his March 2009 Canadian Lawyer magazine article on the pending changes. “Firms that are successful at doing so may reap the benefits of a vigorous and profitable small claims practice.”
• As noted, transitional procedures have yet to be announced to clarify whether there will be mandatory or optional transfer to Small Claims Courts of existing Superior Court actions in which $25,000.00 or less has been claimed. Further, the procedures and costs consequences of effecting such file transfers remain undefined;
• The fate of mandatory mediation in the Court after January 1st is unclear. Mediation has emerged as an extremely effective tool for achieving settlements in many types of Superior Court actions. While Small Claims Courts will continue to require mandatory settlement conferences before Judges and Deputy Judges, these differ in procedure, duration and scope from Superior Court mediations, which are typically convened with private mediators with specific expertise in the subject matter of the claim involved. British Columbia's Small Claims Court Rules provide for differing types of mediation, depending on the amount claimed in a proceeding;
• Amendments will likely be required to Ontario's Rules of the Small Claims Court to expand documentary disclosure obligations and to enable case management of complex cases;
• Questions abound as to whether all Small Claims actions will be treated alike under the new system. Will there be different procedural tiers, determined by the sums in dispute, as is the case in B.C.?

Some concern has additionally been voiced as to whether the Court's contingent of Deputy Judges has adequate judicial expertise and training to address the increased complexity of the higher-value cases that will soon be before the Court.

In a February 2009 article, Sun Media legal columnist Alan Shanoff noted that the new $25,000 monetary limit will likely bring larger and more complicated contract cases, defamation suits, and medical malpractice claims to the Court's docket.

As Mr. Shanoff astutely cautioned, "Certainly, the public deserves a full-time professional roster of judges and proper facilities. Let's not trade one set of problems for another."

- Bill Rogers, Shashi Raina and Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG