L 7 : Civil Litigation + Small Claims Court Flashcards
three considerations before commencing small claims court
- probability of success
- cost (money, time, stress)
- other options (demand letter, mediation program)
what is the mediation program?
court sponsors mediation program
- if other party is interest in working it out - may be the route to go thru rather than small claims court.
deciding WHERE to file lawsuit - what considerations madE?
jurisdiction
- limitations act
consider jurisdication before suing?
- court limitations: dollar amount, subject matter
consider limitations before suing?
– two principles of rule?
- time limit to sue.
- discovery principle
- unlimited period rule
what is the discovery principle?
law suit commences within 2 years of discovering claim
what is the ultimate period rule?
lawsuit commences 10 years from the date when the claim arose (if didn’t discover until after 2 years from date)
5 exceptions to the limitation period rule
- AGREEMENT by both parties
- PART PAYMENT/ACKNOWLEDGE DEBT prior to expiration of limitation period causes period to re-start
- FRAUDULENT CONCEALMENT of claim by defendant
- DISABILITY of claimant suspends limitation period
- OTHER LEGISLATION (ie. student financial assistance act gives 6 year limitation period
how to commence + litigate a suit in the PC, Civil = small claims
- PREPARE AND FILE a civil claim with Clerk of the Court
- SERVE claim and blank DISPUTE NOTE
- SWEAR AFFIDAVIT OF SERVICE
- WAIT 20(OR 30) DAYS
cost of filing PC-Civil claim
$100 if worth less than $7500
if more pay $200.
what info is needed on PC Civil claim?
full name of individual
- exact corporate names (corporate registry)
- trade name search for unincorporated business
what’s needed when prepping a claim
- prepping claim = pleading to ID plaintiff’s position (give thought, objective, clear + concise, what happened, how, why, include evidence, prove losses)
authorized methods of serving civil claim
- personal service (default, verify name + give to person)
- substitutional service ( need court order; leave at residence)
- service by registered mail (need court order, attach proper receipts to affidavit)
purpose of swearing affidavit of service?
to prove the claim was served
four defendant choices in response to being served
- do nothing : if ignores, lost by default
- negotiate a settlement: if settled, plaintiff notifies court + files notice of withdrawal
- pay the claim : no appearance in court, best to pay thru court tho.
- . defend the action.
how may the defendant defend the action of a civil claim?
deliver DISPUTE NOTE to Clerk’s office within 20 days (30 if served out of province).
- claim will be mediated, pre-trial conference, trial.
what should be contained in the dispute note?
counterclaims
- different versions of fact
what happens if no dispute is filed?
plaintiff applies for DEFAULT JUDGEMENT
what is mediation?
- in courthouse, in boardroom
- trained mediator facilitate the resolution (impartial, objective)
- parties appear before mediator
- parties present complaints
- mediator assists in resolving dispute (minimal involvement)
result of non-attendance to mediation?
costs ($50) being payable
- pleading struck down + case lost
difference between mediation and arbitration?
- mediation: court has program for. mediator is impartial + does not take sides
- arbitration: the parties decide on on arbitrator, arbitrator makes decision (choose your own judge)
what is a pre-trial conference?
meet with judge (not same as trial judge)
- helps come to resolution.
- if no resolution, judge helps determine what needs to be done for trial.
- will determine amoud of time needed for trial
what happens if non-attendance at pre-trial conference?
pleadings may be struck down + case lost.
proceedings of the trial
- clerk of court sets trial date + notifies parties.
- on trial date, parties MUST appear at set time/date
- parties names are read, they stand and ID themselves
- witnesses not in courtroom until they give testimony
who has burden of proof in trial?
- what evidence included?
plaintiff
- balance of probabilities
- first hand evidence (no heresay)
- witnesses tell court
- original docs as exhibits
How to get witnesses to court?
formally serve with Notice to Attend
- must have personal knowledge of the events
questioning a witness when lawyers are present
direct examination: question own witness. no leading questions, prompt to tell story
cross-examination: opposite party challenges witness’s recall. leading questions are permitted.
re-examination: first party may re-direct questions, but only to matters raised during cross-exam.
4 steps in trial
- plaintiff has burden of proof
- defendant presents his case (doesnt have to, right to remain silent)
- plantiff, then defendant summarize their cases (summation)
- judgement (judge/jury)
steps of trial after judgement?
- clerk of court sends CERTIFICATE OF JUDGEMENT
- FILE certificate of judgement with clerk of QB. (so that if further proceedings need to be done to collect, it’s in motion)
- obtain WRITE OF ENFORCEMENT
- proceed with enforcement
what is writ of enforcement
authority to do something to collect on judgement.
how to appeal?
judge decision in PC may be appealed to QB.
apellant must:
- prep + file NOTICE OF APPEAL on RESPONDENTS within 30 DAYS
- file copies of NoA + transcript order with Affidavit of Service withing 37 DAYS
- file TRANSCRIPT within 3 months
- Clerk will send notice of hearing date after this.
