It all starts with a dispute. Someone is refusing to pay board. You bought a horse that is not worth the money paid. The purchaser of your horse bounces her cheque. Training fees won’t be paid by an owner. If all attempts to negotiate a resolution have failed, the only alternative is to sue. Take them to court!
In Ontario, significant changes have been made to the Small Claims Court in 2020. You can now make a claim for amounts up to $35,000. This is a significant increase from the previous limit of $25,000 in 2010. There are Small Claims Courts in every province and limits have risen in these established Courts, too.
The Small Claims Court is truly a court for the people. Lawyers are not required and the system is set up to help the lay person pursue their own claim, without lawyers, to settlement or trial. Procedures in the Small Claims Court are simplified and informal. After the laying of the initial complaint, called a claim, there is very little paperwork for the complainant to do before going to court to resolve the dispute. The court process is user friendly and the clerks at the court are very helpful.
The claim is a standard form [Plaintiff’s Claim – form 7A] available at any Small Claims Court or here. For acceptance by the court, it must contain the following information:
a) the names and addresses of the parties involved in the claim and their status as plaintiff or defendant (note that there can be more than one plaintiff and defendant);
b) the nature of the complaint in detail including dates, places, and important aspects of the complaint;
c) the amount of money claimed as relief in the claim; and
d) attach to the claim copies of any documents relevant to the complaint.
Take care when listing the parties in the claim. Remember that a company has a separate legal identity from the people that run it. The claim will be issued by the Small Claims Court for a fee and a copy given to the plaintiff.
Once the claim is issued, it is the plaintiff’s responsibility to serve the claim on the defendant within 6 months of issuance of the claim by mail or personal service. Please refer to the Small Claims Court rules (see the Guide to Serving Documents) for instructions on service.
The defendant has twenty days from the receipt of the claim to respond to the court. The
defendant has various options, including:
a) the defendant can file a defence with the court indicating the reasons why the defendant disputes the plaintiff’s claim;
b) the defendant can file a defence and also claim against the plaintiff for damages suffered from a loss caused by the plaintiff by issuing a “Defendant’s Claim”;
c) the defendant can file a defence and make a “third party claim” against a person other than the plaintiff for loss suffered by the defendant arising out of the occurrence relied upon by the plaintiff or related to the plaintiff`s claim;
d) the defendant who admits liability but wishes to arrange terms of payment may file a defence proposing terms of payment; or
e) the defendant can simply ignore the claim and have judgment signed against him or her for the full amount of the plaintiff’s claim.
If a defence is filed, the dispute will proceed to trial. But before the trial, the court will hold a pre-trial or settlement conference. The pre-trial or settlement conference is a settlement meeting supervised by a judge. There are cost sanctions against parties who fail to attend or come inadequately prepared. The judge reviews the claim, defence, and the documents, and attempts to facilitate settlement of the dispute thereby avoiding the need for a trial. If the judge cannot settle it, the judge can at least assist in narrowing the issues, making sure each party knows the other’s full case, and advising the parties on preparation for trial. Many claims are settled at this stage and the parties sign a settlement agreement that is filed with the clerk. If no settlement is reached, the trial follows shortly after the pre-trial conference.
At trial, the parties should present all the evidence to support their case including original documents, witnesses, and any exhibits that are relevant to the issues involved. The plaintiff and the defendant will each be given a turn to address the judge and explain their side of the dispute. This will include the presentation of documents and the examination of any witnesses. The judge is usually very helpful and will assist each party with the procedural aspects of the presentation.
Once both sides of the dispute have told the judge their stories, the judge will make a decision about the case and hand down a “judgment.” A judgment is a court order that is enforceable against all parties to the action. If the plaintiff has won, the judgment will usually require the defendant to pay the plaintiff a sum of money as compensation for the plaintiff’s claim and the costs of the action. This judgment is effective immediately and interest will run on the judgment until it is paid in full by the defendant.
If the defendants refuse to pay the judgment, there are a number of enforcement mechanisms available to the plaintiff. The plaintiff can issue a “garnishment” against debts payable to the defendant. If served on the defendant’s employer, the employer will be required to pay a portion of the defendant’s salary to the plaintiff with each pay cheque. If a garnishment is served on the defendant`s bank, the bank will be required to pay to the plaintiff all monies held for the defendant up to the total amount indicated as owing in the garnishment.
Another powerful enforcement tool is the “writ of seizure and sale”. The plaintiff can seize and sell personal property or land owned by the defendant to satisfy the judgment. A writ of seizure and sale filed against land will prevent the defendant from dealing with his land without first satisfying the judgment. The defendant will have difficulty refinancing mortgages, selling property, or obtaining loans until the judgment has been paid in full.
The new higher limit of $35,000 makes the Small Claims Court an attractive venue to settle many disputes in the horse world. It is cheap and efficient. Consider also the popular alternatives of mediation and arbitration. Finally, there is always the “ounce of prevention” strategy – paper your deals, look ahead, and plan for possible problems before they become disputes.
Catherine Willson is counsel at GSNH LLP (www.gsnh.com), a law firm in Toronto, Ontario with counsel practising civil and commercial litigation and construction, employment, and equine law. This article contains general information only based on the laws of Ontario and is not intended to provide a legal opinion or advice. Readers should consult a lawyer with respect to the application of the information contained above to their circumstances. Readers may also contact the author at GSNH LLP at (416) 597-6488 or [email protected]