Prelim matters to consier before proceedings

Question 1

Non compliance with the Small Claims Court rules does not nullify a step; the Court may grant

Answer 1

relief that is just to secure the determination of the matter in dispute. The court may also dispense with compliance with any rule

Question 2

How do you could days (compute time) according to the Small Claims Court Rules?

Answer 2

• do not count the first day, but count the last day
• Where a deadline occurs on a holiday, the act may be done on the following day that is not a holiday.

Question 3

What is a cause of action?

Answer 3

a set of facts and legal elements that justifies the right to sue to obtain damages property, or the enforcement of a right

Question 4

Most causes of action are based either in

Answer 4

contract law or tort law

Question 5

Bhasin v Hrynew, the Supreme Court created a new common law duty to

Answer 5

perform contracts honestly

Question 6

An action brought before a ____ is made will be premature since there has not been an accrual of the cause of action

Answer 6

demand. IE a bill must be sent before a person has a cause of action for breach of contract

Question 7

Notice should be clear and specific, setting out:

Answer 7

• the nature of the complaint
• the claims being asserted
• the intention to bring an action

Question 8

A notice of a constitutional question must be served on

Answer 8

the Attorney General of Canada and the Attorney General of Ontario if the paralegal is
- challenging the constitutional validity or applicability of an Act/regulation/bylaw
- claiming a remedy under section 24(1) of the Charter

Question 9

What forms are required when serving notice of a constitutional question?

Answer 9

F4 per rule 4.11 ofthe Rules of Civil Procedure

Question 10

When is form F4 notice of a constitutional question to be served?

Answer 10

ASAP, but at least 15 days before the day that the question is to be argued

Question 11

What is the basic limitation period imposed in the Limitations Act 2002?

Answer 11

2 years from the date the claim is discovered

Question 12

What claims are excluded from the Limitations Act 2002?

Answer 12

• Aboriginal rights claims
• proceedings under certain statutes

Question 13

Section 5(1) of the Limitations Act defines discoverability as

Answer 13

• the day on which the person with the claim first knew that 1) injury occured, 2) injury was caused or contributed by an act or omission, 3) the act or omission was that of the person against whom the claim is made, 4) that, having regard to the nature of the injury, a proceeding would be an appropriate means to seek remedy
• the day on which a reasonable person ought to have known of the matter

Question 14

What does Section 15 of the Limitations Act 2002 impose?

Answer 14

an ultimate limitation period of 15 years running from the day on which the act/omission took place

Question 15

Limitation periods do not run in the follow time periods

Answer 15

• any time in which the person w a claim is a minor and not represented by a litigation guardian
• is incapable of commencing a proceeding because of a physical, mental, or psychological condition and is not represented by a litigation guardian
• the respondent wilfully conceals from the person with the claim the fact that injury occured, or that they were responsible for it,
• the respondent wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury

Question 16

Can parties agree to suspend limitation periods?

Answer 16

Yes, when parties have agreed to have an independent third party resolve the issue. If not resolved, time starts to run again when the dispute resolution process is terminated or a party withdraws from an agreement

Question 17

Partial payment of a debt can

Answer 17

restart the limitation period under sections 13(1)(9-11) of the Limitations Act

Question 18

The Limitations Act identifies certain claims where there is no limitation period at all, such as

Answer 18

• sexual misconduct where at the time of the misconduct the plaintiff was a minor,
• claims to recover taxes owing to the Crown, and
• undiscovered environmental claims

Question 19

In tort, a defendant has 2 or 15 years, case dependent, from the time they are served with a statement of claim to commence a claim for contribution/indemnity against a co-defendant under

Answer 19

the Negligence Act, which is section 18 of the Limitations Act

Question 20

What was the COVID-19 suspension of limitation periods?

Answer 20

March 20, 2020, the Ontario Government suspended limitation periods in Ontario from March 16 2020-September 13, 2020. This was revoked, and time startedm running again, on September 14 2020

Question 21

Damages may be limitedby

Answer 21

statutory enactment, limiting the liability of a party

Question 22

Where are interest rates determined?

Answer 22

The Courts of Justice Act. prejudgement and postjudgement interest rates are posted quarterly on the Ministry of the AG website

Question 23

Section 128 of the CJA provides that a person entitled to an order of payment of money is entitled to

Answer 23

claim and have included in the order an award of interest on the monetary award at the prejudgement interest rate.

Question 24

Prejudgement interest is calculated from

Answer 24

the date when the cause of action AROSE to the date of the ORDER.

Question 25

The prejudgement interest rate applicable is the interest rate

Answer 25

at the end of the first day of the LAST MONTH of the quarter PRECEDING the quarter in which the proceeding commenced, rounded to the nearest tenth of a percentage.

Question 26

What are the exceptions to the rule of prejudgement interest/rate calculations?

Answer 26

• in an action for personal injury, the rate of interest on non-pecuniary loss is determined by the Civil Rules Committee
• under the Rules of Civil Procedure, the prejudgement interest rate on damages for non-pecuniary loss is personal injury is currently 5%/year. If the order includes an amt for PAST pecuniary loss (special damages), prejudgement interest is calculated on the total past pecuniary loss at the end of each 6month period and at the date of the order.

Question 27

What is the Insurance Act implication for prejudgement interest?

Answer 27

no prejudgement interest shall be awarded for any period of time BEFORE the plaintiff gave NOTICE of the action to the defendant. This requires written notice of the intention to commence the action be served on the defendant within 120 days after the incident

Question 28

Post judgement interest begins accruing

Answer 28

the day of the order

Question 29

the post judgement interest rate is defeined as

Answer 29

the bank rate at the first day of the LAST MONTH of the quarter preceding the quarter in which the DATE OF THE ORDER falls, rounded to the next higher whole number where the bank rate includes fraction, plus 1%

Question 30

Section 130(1) of the CJA provides the court with

Answer 30

the discretion to:
-disallow prejudgement or postjudgement interest
- allow prejudgement or postjudgement interest at a rate higher or lower than provided for under CJA and
- allow prejudgement and postjudgement interest for a period other than provided for in the CJA.