L 7 : Civil Litigation + Small Claims Court

Question 1

three considerations before commencing small claims court

Answer 1

• probability of success
• cost (money, time, stress)
• other options (demand letter, mediation program)

Question 2

what is the mediation program?

Answer 2

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.

Question 3

deciding WHERE to file lawsuit - what considerations madE?

Answer 3

jurisdiction

- limitations act

Question 4

consider jurisdication before suing?

Answer 4

• court limitations: dollar amount, subject matter

Question 5

consider limitations before suing?

– two principles of rule?

Answer 5

• time limit to sue.
• • discovery principle
• • unlimited period rule

Question 6

what is the discovery principle?

Answer 6

law suit commences within 2 years of discovering claim

Question 7

what is the ultimate period rule?

Answer 7

lawsuit commences 10 years from the date when the claim arose (if didn’t discover until after 2 years from date)

Question 8

5 exceptions to the limitation period rule

Answer 8

1. AGREEMENT by both parties
2. PART PAYMENT/ACKNOWLEDGE DEBT prior to expiration of limitation period causes period to re-start
3. FRAUDULENT CONCEALMENT of claim by defendant
4. DISABILITY of claimant suspends limitation period
5. OTHER LEGISLATION (ie. student financial assistance act gives 6 year limitation period

Question 9

how to commence + litigate a suit in the PC, Civil = small claims

Answer 9

• 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

Question 10

cost of filing PC-Civil claim

Answer 10

$100 if worth less than $7500

if more pay $200.

Question 11

what info is needed on PC Civil claim?

Answer 11

full name of individual

• exact corporate names (corporate registry)
• trade name search for unincorporated business

Question 12

what’s needed when prepping a claim

Answer 12

• prepping claim = pleading to ID plaintiff’s position (give thought, objective, clear + concise, what happened, how, why, include evidence, prove losses)

Question 13

authorized methods of serving civil claim

Answer 13

• 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)

Question 14

purpose of swearing affidavit of service?

Answer 14

to prove the claim was served

Question 15

four defendant choices in response to being served

Answer 15

1. do nothing : if ignores, lost by default
2. negotiate a settlement: if settled, plaintiff notifies court + files notice of withdrawal
3. pay the claim : no appearance in court, best to pay thru court tho.
4. . defend the action.

Question 16

how may the defendant defend the action of a civil claim?

Answer 16

deliver DISPUTE NOTE to Clerk’s office within 20 days (30 if served out of province).

• claim will be mediated, pre-trial conference, trial.

Question 17

what should be contained in the dispute note?

Answer 17

counterclaims

- different versions of fact

Question 18

what happens if no dispute is filed?

Answer 18

plaintiff applies for DEFAULT JUDGEMENT

Question 19

what is mediation?

Answer 19

• 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)

Question 20

result of non-attendance to mediation?

Answer 20

costs ($50) being payable

- pleading struck down + case lost

Question 21

difference between mediation and arbitration?

Answer 21

• 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)

Question 22

what is a pre-trial conference?

Answer 22

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

Question 23

what happens if non-attendance at pre-trial conference?

Answer 23

pleadings may be struck down + case lost.

Question 24

proceedings of the trial

Answer 24

• 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

Question 25

who has burden of proof in trial?

- what evidence included?

Answer 25

plaintiff

• balance of probabilities
• first hand evidence (no heresay)
• witnesses tell court
• original docs as exhibits

Question 26

How to get witnesses to court?

Answer 26

formally serve with Notice to Attend

- must have personal knowledge of the events

Question 27

questioning a witness when lawyers are present

Answer 27

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.

Question 28

4 steps in trial

Answer 28

1. plaintiff has burden of proof
2. defendant presents his case (doesnt have to, right to remain silent)
3. plantiff, then defendant summarize their cases (summation)
4. judgement (judge/jury)

Question 29

steps of trial after judgement?

Answer 29

• 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

Question 30

what is writ of enforcement

Answer 30

authority to do something to collect on judgement.

Question 31

how to appeal?

Answer 31

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.