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The purpose of the civil justice system is to restore wronged parties to their original state. The amount you will be awarded after winning a lawsuit is the damages that were incurred because of the defendant. There are various categories of damages: specific and general. Specific damages are measurable costs incurred before trial including the cost of repair to a car negligently crashed, payments for physiotherepy due to the resulting injuries, and wages lost from missing work before the trial. Specific damages are stated as a dollar figure on the claim and must be specifically listed.
General damages include continuing damages not suffered entirely before trial. These damages are not stated in the claim. Pain and suffering, and future lost wages would be included as general damages. General damages are for the judge or jury to evaluate. The case of Andrews v. Grand & Toy set the maximum recoverable value for pain and suffering at $100,000 in 1978. Adjusted for 36 years of inflation the current cap is around $300,000.
Small Claims Court
If you believe your damages will be below $25,000 then small claims court gives you the advantage of a faster, simpler, and cheaper process. Note that if your damages are fixed at $30,000 in small claims court you loose the extra $5000 forever. Claims for specific damages like non-payment of debt below $25,000 can even be filed online. You still must serve the defendant(s) in person or by registered mail. If your estimated damages are much greater than $25,000 you go to the Ontario Supreme Court where the Ontario Rules of Civil Procdure apply. To obtain an injuction (a Cout Order to a person to do or not do somthing) you must use the Supreme Court Process. Section 23(1) of the Courts of Justice Act does not give Small Claims Courts the jurisdiction to issue injunctions.
Starting a Claim
The maxim: "Justice delayed is justice denied" contains truth. Physical evidence degrades, witness' memories fade away, and the Province recognizes this with The Limitations Act. This Act limits the time you have to begin a lawsuit. Suits are started by personally serving the defendant(s) with statement of the claim. Throwing the claim at a fleeing defendant does not constitute service, stuffing the claim into a reluctant defendant's jacket does result in proper service (and possibly battery of the defendant). The statement of claim must also be handed into the hamilton court registry (45 Main St. East).
For most lawsuits the time period from discovery until serving the defendant can be no longer than two years. Discovery is assumed to have happened on the day of the act that caused the damage (battery committed, plaintiff falsely arrested, defamation published, scheduled debt payment misssed, ect).
If the victim did not know and had no reason to know of the act then discovery is delayed (defamation may only be discovered when the victim reads the publication). For anyone under 18 years old the limitations period would be paused until they turn 18. Then, most likely, they have until their 20th birthday to serve the defendant.Section 16(1) lists causes of action that have no limitation period at all. The Ontario Insurance Act Limits some claims for damage to vehicles to one year. If the plaintiff serves the defendant after a limitation date the defendant can get the suit dismissed.
Added to the damages are legal costs that the losing partly must pay to the winner. A plaintiff who sues someone and fails to prove their case owes the respondent for their costs. The costs are decided by a variety of factors listed in Rule 57 of the Rules of Civil Procedure. To improve the outcome with respect to the costs awarded do not waste Court time with a unnecessary denials, applications, witnesses, or arguments. This applies equally to plaintiffs and defendants.
Settlement offers (See Form 49A) effect the costs award as follows: At least 7 days before trial, the defendant serves an offer to pay $30 to settle the case on the plaintiff who ignores this offer. At trial the plaintiff wins, but the judge awards them less than $30. The defendant will only have to pay the plaintiff's legal costs up until the offer was served. After service of the settlement the costs are awarded to the defendant. If, at least 7 days before the trial, the plaintiff offers to settle for $30, is ignored, and ends up winning more than $30 the defendant must, in addition to the regular costs, pay extra costs for the period after the offer was served until the trial. This rule means less trial time is used when the parties are close to agreement. Take any settlement offer seriously.
Comes in all forms from negligent misrepresentation to medical (or legal) malpractice to occupiers liability. The elements are that the defendant has some responsibility to the plaintiff and that they fall below the standards of their profession or create risks to the plaintiff. This careless behaviour of the defendant must cause damage to the plaintiff. The plaintiff must prove all elements exist more likely than not. If the defendant proves that the plaintiff's negligence was also a cause of his own injury then any damage award would be discounted. The calculation based on the degree of negilgence in each of their actions.
An ancient proverb states: 'You cannot get blood from a stone.' You only want to sue people who actually have money or property. Preferably, their property would be located within the same Province where you are suing (this makes it easier to seize the property after victory). If your presumptive defendant is penniless there is still hope. They may be insured or named as benificiaries of a large estate. Also, the doctrine of 'Respondeat Superior' (vicarious liability) may hold the defendant's employer liable for their employee's actions. Employers often have deeper pockets.
In order to hold the employer liable the damages must have resulted while the employee was performing duties assigned by the employer. For example the city would not be liable if an off duty cop shot someone out of spite after a drunken disagreement (because the cop wasn't being paid to get wasted). However, if the same officer shot an unarmed fleeing suspect during an attempted arrest the city would be liable (the cops normal duties include arresting suspects, but he exceeded his authority by using deadly force without any risk of harm to a person). To take advantage of this law you must name both the employer and employee as defendants in your statement of claim . Also, you must serve it on the employer or their head office.
After the civil claim has been served and before the trial the discovery process occurs. This process requires every plaintiff and defendant to exchange with each other all relevant 'documents' that they possess prior to trial. 'Documents' includes any information in any form including a ditigital video, a magnetic audio tape, photos, and, of course, paper records. (see Rules of Civil Procedure section 30.01) If you do not disclose a relevant 'document' to the opposition and then try to introduce it as evidence at trail the judge may disallow it. Section 30.02 requires the disclosure of any insurance policies that may satisfy the judgement. There are furthur procedures for requesting specific documents. Section 32.01 allows a court to make an order to inspect property or land and even order samples and measurment be collected and experiments be performed. To get the court to make such an order you would file a notice of motion, served on all parties, the court registry, and, usually, the person in possession of the property. Describe in the notice why the requested order will produce relevant and useful evidence to help your case.
Except in Small Claims Court each party gets one chance before trial to cross-examine the other party for a maximum of seven hours. The answers from this deposition are recorded and may be used at trial to impeach the party if they change their story. Even if the person claims not to recall anything during the deposition the record is still useful for impeachment if they say new things at trial.
Filing an Affidavit
Often in civil proceedings you will be required to file an affidavit. Affidavit's may be required to support your motion, apply to dismiss the case because the Limitations Act was contravened, recieve extraordinary costs incurred during a proceeding, or to get a default judgement. For example, for you to be awarded a default judgement if the defendant failed to reply to your claim you would need an "Affidavit of Service". This document would usually state that the defendant was personally served with the statement of claim. The point of any affidavit is to let the court know the FACTS relevant to the decision you want the court to make. (for above example facts required would be the date, time, and location that the writ was left with the defendant, all sworn by a someone who was able to positively ID the defendant). There are specfic forms. Fill them in according to the following rules:
- Number all paragraphs.
- State one fact per paragraph. Ususally in chronological order.
- Write in the first person, start your sentances with "I".
- Refer to supporting documentation like bills, fines, photographs etc. as Exhibit A, B, C, etc. Label the exhibits as follows: on the back of the picture/document write: "This is Exhibit A referred to in the affidavit of …insert deponent's name...sworn before me at ..........this day of........"
- NEVER cite statue law, case law, or ,especially, the constitution.
- If you want to use hearsay to support your facts this is termed "information and belief". The affidavit would begin with: "I have personal knowledge of the facts and matters herein referred to by me except where indicated to be on information and belief, and where so stated I verily believe them to be true".
- "Information and belief" affidavits must contain 1) the source of the hearsay and 2) the deponet's stated reason(s) for believeing the source's credibility/reliability.
- The deponent must swear an oath affirming the truth of the affidavit in the presence of a notary public, justice of the peace or any Commisioner for taking oaths.
- now the affidavit must be submitted to the court registry, and served on the opposing party, usually by mail, (unless you have a valid need for surprise, for example a mareva injunction where you're freezing defendant's assets)
- Once in court the deponent could be cross-examined by the opposition on any affidavit they swore. Affidavits with internal inconsistencies or serious allegations are most vulnerable to cross-examination. Lying on an affidavit is perjury.
-Affidavits based on hearsay can be easily attacked if there is no good reason why the original source was unavailable OR if there is no stated reason(s) for trusting the credibility/reliability of the source. If your opponent submits an affidavit with any of the above vulnerabilities you should request to cross-examine the deponent who swore the affidavit.
Executing a Judgement
After the judge awards you a sum of money from the defentant you have to get it from them. This can be very difficult. If the defentant is broke and without a car worth over $5000 then you definately shouldn't sue them unless you expect them to inherit, win the lottery, or win a lawsuit or insurance payout, etc. Once you've won a judgement for a dollar amount you can use an 'examination in aid of execution' to get the debtor to come to court and you can ask them under oath what assests they possess. This file from the Law Society of B.C. has a good checklist of helpful quesitons to discover all property interests the defendant holds.
After you discover assets worth selling you can get the court registry to issue a writ of seizure to the sheriff against the defendant's movable property (or issued to the title office against land). You can also get a garnising order against any debt payable to the defendant by someone else, specfically bank accounts, wages, and sometimes rent (you have to first requisition garnishment from the court then serve the notice of garnishment on the employer/bank). You cannot, at the same time, both garnish and issue a writ for seizure of property. Some allowances like the Canada Pension Plan cannot be garnished.
Before you go to court you may fear the defendant will dispose of assets such that they cannot pay you if you win. If your fear is based on facts (like the defendant's recent sale of their Canadian land along with their new Costa Rican passport) and your case looks strong to the judge you can get a Mareva Injunction to freeze some of the defendants assets. If you later lose the case or misrepresent facts to the judge you will have to pay all the damages the defendant suffered from having those assets frozen.
Interprovincial & International Claims
The Supreme Court overruled the common law back in the 1990s,1 now