Should I Sue in Small Claims Court?

Something happens.

You are fired from your job, purchase a car from somebody that did not actually own it or loan a friend some money they did not repay.

Your first thought is to file a small claims suit against the person you feel owes you money.

Do I Have A Case (for Small Claims Court)?

As paralegals, we litigate a lot in small claims court.  Small claims court can deal with many, but not all claims, under $25,000.00.  Many times, another body, such as the Landlord and Tenant Board or License Appeals Tribunal have the jurisdiction to deal with your claim.  In many cases, these other forums must be the place you file your claim and not small claims court.  Paralegals can litigate in these other forums and we can tell you if the small claims court does not have the jurisdiction to help you.

Most important, note that many types of actions cannot be decided in small claims court, even those that are not otherwise in the jurisdiction of a tribunal.  Some examples of cases are listed below:

If You Want to Force a Party to Do or NOT to do Something

You cannot take somebody to small claims court to seek what is known as injunctive relief.   If you want to do this, you generally need to file what is known as an APPLICATION to the Superior Court of Justice.  Paralegals do not get involved in these kinds of cases.  For example, if you want somebody to take down a website, sell their condominium or to force a company to re-issue shares to an aggrieved shareholder, these are heard in Superior Court.

Small claims court however can order under limited circumstances something called a Writ of Delivery.  This is usually an order for the return of a specific object, such as a motor vehicle, a musical instrument or even a family pet.

If the Basis of Your Claim is to Order Specific Performance 

This court cannot order specific performance of a third party.  Apart from enforcing a settlement agreement that came out of small claims (or a related forum that is enforceable in small claims court), this is not possible.  However, you can seek damages from breach of contract on a number of grounds (unjust enrichment, breach of contract, interference with contractual relations).  But, a small claims court will not order your employer to give you your job back, nor will they order the company next door to stop polluting your backyard.

Issues That Fall Under Other Statutes with Legislated Jurisdiction 

You might be contesting something under the purview of the Family Law Act or disputing the essence of an estate.  This is also done in the Superior Court or Ontario Court of Justice (Family Division).  The small claims court will not give you your children back.  This court will not resolve issues of equalization between you and a former spouse.  You cannot get appointed to be an administrator of an estate, or set aside a will to dispute its meaning.  However, if a will clearly states that you are entitled to monies under $25,000, you can sue the estate trustee for this money if it is not distributed in accordance to the will.

Construction Liens

Construction liens up until recently were strictly under the jurisdiction of the Superior Court.  However, this is changing by way of the new Construction Act, where small claims court can be the forum to file such liens of value of $25,000 or under in jurisdiction.  This is an evolving process, whereby a dispute resolution process is expected to be fully in place by October 2019.

This list of exceptions is not exclusive.  Contact our office today to see if your case fits the small claims court or another tribunal where we practice.

I Have a Claim Under $25,000.  Should I Sue?

When we determine if we will take on a file, we consider a number of elements in your claim.

First, do you have or can you easily obtain sufficient evidence to bring forward your claim?  Such evidence would include a contract, witnesses, invoices, audio or video recordings, photographs, among other things.  Second, can you directly connect the party you wish to sue as being liable?  Sometimes the answer is easy.  The party is a former tenant, a person to whom you loaned money, a former employer or a municipality.  Other times, it might not be as easily, particularly when a third party caused the party you believe is liable to commit the act.  Third, can you easily find the person you wish to take to court?  This involves knowing the proper name, spelling, last known address, possible occupation, among other things.  Our office can assist you in finding the person to some extent, but there are other factors you need to consider.

Does this person have any assets or a sufficient income to cover the claim?  The person may own their own house, but may have several creditors ahead of you in line if you were to win your case.  They may drive a late model vehicle, but they may be leasing it.  Is your party working?  Do you know if they earn a sufficient income to cover your claim, even if you win?  Is your party possibly bankrupt or involved in a consumer proposal?  This information can be determined through our office to help you determine if it is worth your money and time.

Does My Claim Have Merit?

This is something that needs to be determined.  This depends on the type of case you have, what evidence and if any limitation periods apply.   In general, civil suits have a two year limitation period, but this can differ in some cases.  Often, the answer to whether your case has merit can be determined right away.  As experienced litigation paralegals, we have seen many different types of cases over the years and know how the courts will see them.   When faced with an unusual situation, we conduct case law research to determine if our arguments would be on point.

It is important to go to court with a case that has strong merits.  Some people have come to our office to ask us to sue just to force the other party to back down on something.  Or they want to sue for the principle.  As we have been in court many times, we know that courts penalize parties that bring frivolous, vexatious and meritless claims.  Even a case with good merits can be brought forward and lost, mainly because of the credibility of witnesses, quality of evidence and so forth.  Even if you believe the other party might get intimidated by your lawsuit, many will seek the advice of counsel and call your bluff.

My Case Has Merit and I Want to Proceed.  Now What?

If you wish to proceed with a meritorious claim, Browne & Associates Legal Services Professional Corporation can assist you in many ways.  If money is an issue, we can complete what is known as a limited scope retainer.  That means you might want us to act on part of your action, but not all of it.  We can draft your Plaintiff’s Claim, attend a settlement conference with you if you are already in court or we can help you negotiate a settlement. The costs of full representation will also be discussed with you, as payment plans are available if required.

 

Your Driving Privilege in Ontario

Rights Versus Privilege

As a practitioner, I often attend overcrowded Provincial Offences Courts, where individuals are often charged with driving offences.  If you can get past the line-ups to the front, you can often speak to Prosecutor to arrange a deal.  At the same time, Justices of the Peace explode into a tirade about how driving a motor vehicle is a privilege and not a right.  Reviewing the dockets these days is an amazing test of stoicism.  Dockets show one person after the other charged with “driving while under suspension”, among other related charges.

If you plead guilty to driving while under suspension, the Ministry of Transportation tacks on a further six months of suspension on your license. Defenses for this charge are limited, as this offence is considered a “strict liability” offence.  That means in essence ‘you should known better’.  In theory, all of this makes sense, but in reality this whole concept needs a rethink.

Non Driving As A Disability

I met dozens of individuals who have medical conditions that led to an administrative suspension of their licenses.  If people think this only happens to older people, they are mistaken.  Virtually all of those I worked with were under sixty five, one being a mere twenty-three years old.  Once again, the Ministry enforces this idea about driving a vehicle being a “privilege”, they should understand what this means.  Many of those seeking our representation for getting disability support are unable to drive.  They have a better than average chance of qualifying for the Ontario Disability Support Program (ODSP) because of this.  In many parts of Ontario, not being able to drive is a disability in itself.  It can make you unemployable.

Awhile back, one adjudicator looked me in the eye and asked me to convince her of this, citing “plenty of transit service” in the area.  I readily produced a large package of advertisements copied from newspaper, Internet or other job posting sites, where literally every job demanded candidates have G license and access to a vehicle.  I then ask where this appellant is going to work if they cannot get their driver’s license.  If one thinks the state should not provide for these people, think again.

Geography Versus Privilege

In Niagara (and many other places), those “privileged” to drive are the only ones that can obtain the benefits arising from it, such as a job, a decent income and sense of belonging.   Employers have said that drivers are more reliable, with of course no data to back it up.  I am told that people with no license likely lost it through drunk driving or criminal activity.   The truth is most license suspensions are not due to drunk driving, but for unpaid fines and medical reasons.  Many of my clients were not aware they were suspended because they did not get the letter in the mail.  In an average community, including Niagara Region, thirty percent of its residents over the age of sixteen do not drive.  In larger communities like the Toronto area, this figure is much higher.  Others do not drive because they cannot afford to do so.  There are few jobs available to those that cannot or do not drive.

Many candidates are screened out as a certain kind of “riff raff’, a long held belief about workers that do not drive.  However, these are discriminatory requirements in place with almost every job, not just jobs where there is a bone fide reason to require a license.  As a result, the majority of people with disabilities, students, older persons and low income persons are trapped into this legislated cycle of poverty, perpetuated by this accepted prejudice and legalized discrimination.

Marginalized in Their Communities

It is not just employment where non-drivers are discriminated against, but many are also left out of their communities.  In order for a driver to remove their lens of “privilege”, they should leave their car at home for more than a month.  While doing so, they should try to carry on their lives without driving.  Day to day tasks can suddenly become daunting.  The idea of transporting children to school, dropping them off at daycare (which may or may not be close by or at a bus stop), going to work and doing one’s job becomes a struggle.  After work, reversing the route and picking up a few groceries for the evening’s meal becomes unthinkable without a vehicle.  First, it is not likely that you will get home a reasonable hour, but you will likely be worn out as well.  Such workers cannot even dream about going out again to take in a movie or work out at the gym or YMCA.  Repeating this Kafkaesque routine everyday soon gets old, whereby one no longer wants to do as much.

Imagine If …

As a non driver, trying to do a grocery run on your way home is out of the question.  You do not have the time, bus fare or flexibility in doing so.  You will find you have to take up one of your precious weekend days to do this.  For those without a vehicle, grocery shopping is a bigger chore than it is for those that drive.  You can only go to the grocery store every week or two.  Shopping at multiple locations is tricky, particularly without a trunk to store your earlier purchases in.  Tough luck if there’s a special in the meat department at one store and a special on produce in the other.  You can’t go to both.  Drivers simply put the groceries from the first store in their trunk, then go on to the next one and be home in an hour or two.

Research has shown that non-drivers end up spending more money on the same products that drivers do, simply because of this limitation.  Once you finish the groceries, you need to get them home.  You only have two hands, so taking them on a bus might be impractical, especially if you live a long way from the grocery store.  Many phone a cab.  Cab companies, while charging an arm and a leg for their service, are not always reliable transportation.  People who work shifts, take groceries home, or need transport for medical reasons, often find themselves waiting for quite some time for a cab. CT Scans, dialysis and other non-emergency medical trips are required on a 24-hour basis.  It is not unheard of for people to wait at a hospital, a grocery store or elsewhere for two or more hours in some communities to get a ride home.

But It Costs So Much to Drive!

I often hear drivers complain about the cost of gas, insurance, maintenance and parking for their cars.  However, it is more likely than not that they have secure, better paying employment that pays them enough to cover expenses.  It is difficult for non-drivers to have empathy for drivers over expenses.  It costs more on a per kilometer basis for cabs, private drivers, Uber and other private methods of transport.  Public transport is sometimes available, but you are trading large amounts of time for the supposed savings.  For these reasons, non drivers go to far fewer places than drivers do.  In effect, our government, likely through the heavy influence of the auto industry, driving has become a necessity.  This is not just for getting around, but for maintaining one’s dignity and belonging to one’s own community.   It is difficult to develop an attachment to one’s community if they cannot get around in it.  Most “free” community events are held on statutory holidays, where the transit service is limited or non existent.  Non drivers don’t have the same ability to access the ‘informal markets’ that drivers do:  garage sales, Kijiji or a swap service.  Many consider if they are giving an item away for free, the person wanting it should pick it up.  Paying for a delivery service can be prohibitive.

The community does not accommodate non drivers because they don’t have to.  Non-drivers are a low hanging fruit that can easily be swept away with ignorance and disregard.   However, it is more difficult for us to consider the very interests that want to force everybody to buy a car, despite thirty percent of the population not driving and eleven percent in zero car households.  I have encountered many members of that eleven percent. Very few are gainfully employed and if so, they are substantially under employed.  If they are young enough, they make plans to leave the region to go elsewhere, because they see others older than themselves stuck in their communities.

Privilege Versus Equity

If the Ministry of Transportation wants to maintain its right to decide who can and cannot drive, there needs to be meaningful, effective and reliable alternatives to those that cannot or do not drive.  Everybody may not have the “right” to drive, but all should have a right to travel and get around their communities in a reasonable period of time.  Employers should not be allowed to require candidates for employment to own a vehicle and drive.  An exception would only be if the employer were seeking courier, cab drivers or the like.  Employers that find it easy to overlook those that don’t drive should find a way to ensure everybody otherwise qualified for the jobs could work there.  It should cost employers to deny access to jobs in this way.  If they complain about it being ‘inconvenient’ to have their employee not able to hop in their cars and go wherever, they should pay for this.  In other words, they should make it work.  Put the onus on the company to ensure all of its staff can do the essential duties of the job.   Municipalities should also enforce the human rights code and AODA if cab and private transportation companies want to keep their own licenses.

Graduated Driving As A Barrier

For some who have been non-drivers for a long while, the graduated system in place makes it difficult particularly for older learners.   Younger people who still have access to their parents or older siblings have somebody that could accompany them for practice sessions for the G2 road test.  Older people, particularly those that live alone, have less access to somebody like this.  Exceptions should be made for those that have driven before or who are older than thirty.  If the powers that be think that upgrading RELIABLE alternative transportation for communities costs too much, they need to re-think their policies.  Costs are currently downloaded on those who are left behind, those determined by the Ministry not to drive, or those that choose not to drive.  It costs money not to work, just as it costs a community to have too many people that cannot access jobs.

Technology Versus Marginalization

The issue about having or not having a driver’s licence may soon become moot.  Over the past few years, successful test models of self-driving vehicles have been entering the community.  Like Uber, Airbnb and Amazon Prime, this technology will disrupt our community’s current prejudices and way of life.  Many people whose livelihood depends on being behind the wheel will soon find themselves marginalized.  Those who weren’t able to drive will gain access to their communities.  Topics of discussion will become more nuanced and varied, as opposed to the usual complaints about the price of gas, the latest head on vehicle crash or the latest model Ford is putting out.  There will be no more communities where two-thirds of the businesses within either make cars, fix cars, paint cars, sell cars, lease cars or use cars to drive people or things around.  We will all be forced to pursue other interests.  Even some members of my profession that focus on Highway Traffic offences will have to re-think their vision of legal advocacy.