Compassion | Experience | Outcomes You Value
This article is written for those interested in commencing Small Claims Court actions.
Having spent enough time in that court and watching what goes on, I can say without hesitation that most litigants are unrepresented and have not sought a legal opinion on their case. I believe that people think they are saving money by not hiring a lawyer or agent to provide an opinion. I disagree vehemently with that premise and will explain why.
Some cases started in Small Claims Court fail because the law does not provide any relief in the circumstances. Sometimes, there is a legitimate claim but no evidence to support it. At times, plaintiffs sue the wrong people or companies, to name just a few difficulties. Despite what you see on television, prosecuting a claim even in Small Claims Court, is not easy. Lay people do not know the law, procedure or rules of evidence.
I highly recommend that before you start an action in Small Claims Court, you obtain a legal opinion from a lawyer. Most lawyers will meet with you and review your situation for a consultation fee. Even if you have to pay $500 for such a consultation, this could in the end save you much more in court costs and your time. You know the saying…penny wise, pound foolish.
If the lawyer you consult believes that you have a legitimate claim, you have several options as to how to proceed. You can retain that lawyer to act for you throughout the matter or you can retain the lawyer to draft the statement of claim but not act for you in the proceeding. I have done this a few times for clients of mine with cases worth less than $10,000. A properly drafted statement of claim is the road map that assists the Deputy Judge in knowing what the case is about and how you plan on proving it. The statement of claim will assist you in knowing what evidence you will need at trial. When you speak with a lawyer, ask him or her, which documents you will need at trial. Not every document you have in your file is necessary to prove your case. Most unrepresented litigants adduce far too many documents because they do not understand the issues and hence the documents needed to respond to the issues.
If you intend on using documents at your trial, there are two basic principles you should remember. Firstly, all the documents you intend to rely upon at trial should be bound in a document brief with tabs and a spine. The entire document brief can then served on the opposing side no later than 14 days before trial. At trial, you can submit into evidence the document brief as “Exhibit 1”. What you should absolutely not do, is go into the witness box with a file of loose papers not having thought about your documents beforehand and then start fishing around for them as you give your testimony. This does not leave a good impression on the Deputy Judge. I have seen many judges become very frustrated with this behavior because it is a waste of the court’s time. The court time in this province is too hard to come by and is not there to be squandered by the public.
If your claim involves unpaid rent for example and you have a series of NSF cheques that you intend to submit into evidence, make photocopies of your cheques. The photocopies along with the tenancy agreement if there is one, should go into your document brief. In addition to that, set out on one piece of paper for the judge’s use, the cheque numbers and the amount of each cheque that went NSF. The amount column should be tallied at the bottom of it so that there is no question as to how much you are claiming for at trial. Don’t make the judge take out a calculator and do the math for you.
At any level of court, the litigants or their representatives must understand that their primary task is to educate the judge. While it is true that judges have a command of the law, they will not do your job for you. You must present your evidence and your damages in an organized manner so that the judge does not have to work at figuring out your case. The judge’s role is to make a finding of fact as to liability and damages. You should be doing everything you can to make the judge’s job easier so that he or she can find in your favor.
If you need advice on a matter that you are intending to take to Small Claims Court, please contact me.
Here are some helpful hints on the rules of evidence in Small Claims Court. Evidence as a subject matter may not be a flashy topic but evidence is the backbone of any trial. You can have the most wonderful claim on earth but if you cannot prove it with documentary or oral evidence, you will not succeed.
The starting point for any discussion about evidence in Small Claims Court is section 27 of the Court of Justice Act, Ontario. That section states firstly that with certain exceptions, the Small Claims Court may “admit into evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious”.
The evidence must be relevant and non-repetitious.
Whenever you are trying to decide upon the relevance of a document or oral testimony, ask yourself several questions. Firstly, what is the point of this evidence? What does this document or witness say? How does this evidence relate to the subject matter? How does it support the theory of my case?
In my view, relevant documentary evidence can be more persuasive than oral testimony about the subject matter. If the document makes the point, then you don’t necessarily need the author of the document to say the same thing.
Determining whether your various pieces of evidence including oral testimony is repetitious, is a little easier. A guiding principle would be that if a document or a witness makes the point, don’t clutter up the proceeding with additional evidence that says the same thing. The court is not more persuaded because you have three witnesses when one will suffice.
Let me now address a few practical tips about handling documentary evidence at trials.
If you intend to rely upon more than a few documents at trial or you have a few documents with multiple pages, I strongly suggest binding the documents in a spiral-bound book, placing them in the order in which you intend to rely upon them at trial or in chronological order. Like a storybook with chapters, your document book will help the judge understand the story and the order in which it occurred. Make sure to use tabs and number each page in the top right hand corner. This will assist the judge and/or witness in turning immediately to a particular document. The document book may then be entered into evidence as one entire exhibit. Keeping your document in this manner will also ensure that they do not get misplaced.
You should make four copies of your document book: 1 for yourself, 1 for the witness (if applicable), 1 for your opposing litigant and 1 for the judge. If you want your witness to review the documents, he/she should have a document book with them in the stand. The judge will find this system much easier to deal with as opposed to you walking back and forth to the witness stand with one document at a time. Remember that you are there to promptly get to the point of your case and not waste the court’s time and therefore, resources.
Before your next visit to Small Claims Court, spend considerable time thinking about and gathering your evidence. Ensure it is relevant, not repetitious and presented in an organized fashion. This will greatly assist you and the court.
In my article in September of this year, I reviewed the recent decision on Keays v. Honda Canada Inc. in which the Supreme Court of Canada changed the landscape of damages for bad faith dismissal from employment.
At the same time that the Keays case was making its way to the Supreme Court of Canada, the Ontario Court of Appeal rendered a decision a similar case entitled Mulvihill v. The Corporation of the City of Ottawa. In the fall of 2004 Ms. Mulvihill, an employee of the City of Ottawa, took a stress leave from work claiming she was suffering harassment at the workplace. The City investigated the complaint and found nothing. Ms. Mulvihill was not satisfied with the results of the investigation and refused to return to work unless she was re-assigned to a different department. She complained about her supervisors in an email message addressed to the City Manager and the Mayor. On November 16, 2004, the City terminated Ms. Mulvihill’s employment claiming just cause (insubordination with respect to the email).
Just prior to the trial, the City withdrew its defence of just cause and paid Ms. Mulvihill 3 months of salary in accordance with her employment contract. At the trial, Ms. Mulvihill was awarded 4.5 months of pay in lieu of notice plus 5.5 months salary and benefits on account of “Wallace damages”. The Trial Court awarded “Wallace damages” because the City engaged in bad faith dismissal tactics when it terminated Ms. Mulvihill’s employment during her stress leave and because the City initially terminated her employment with cause but then later withdrew its defence.
The City appealed, inter alia, on the issue of the “Wallace damages”.
The Court of Appeal of Ontario held that in terminating Ms. Mulvihill’s employment with cause for the reason of insubordination, the City was acting on an honest and reasonably held belief that the employee’s insubordination led to the claim of just cause. Secondly, the Court held that Wallace damages could not be awarded merely because Ms. Mulvihill’s employment was terminated during her sick leave. The Court held that the employer made a “mistake” in terminating employment during the leave of absence and that the legal standard for awarding Wallace damages is not whether an employer made a mistake but rather, whether the employer engaged in bad faith.
The upshot of the Mulvihill and Keays cases is that it is now very difficult for an employee to succeed on a claim for Wallace damages. In addition, a successful employee will have to show actual harm caused as a result of the alleged bad faith conduct by the employer.
If your employment has been terminated with or without just cause, please contact me to review your situation. Every situation is different and should be reviewed by a lawyer.
I recently called the Office of the Public Guardian and Trustee in Ontario (“OPGT”) to discuss generally, their role in people’s lives where they become incapacitated and unable to manage either their property or personal care. Here is what I learned in respect to the OPGT becoming a statutory guardian of property.
The OPGT considers itself a guardian of last resort, meaning they do not wish to step in to become a guardian but will only do so if the incapacitated person does not have a Power of Attorney and there is no one willing to apply to be a guardian or they are unaware that the person has a valid Power of Attorney for Property (“PoA”).
Section 16 of the Substitute Decisions Act (Ontario) (“SDA”) states that “a person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section”. The section stipulates however that no assessment will be made unless the person requesting the assessment has made reasonable inquiries about whether the incapacitated individual made a Power of Attorney for Property or if not, whether a spouse, partner or relative intends to make an application under s. 22 of the Substitute Decisions Act for to replace the OPGT as guardian of property. In other words, if your spouse, partner or relative becomes incapacitated and has no valid Power of Attorney and you or another relative are not prepared to act as that person’s guardian of property, you may request a capacity assessment which will then be sent to the OPGT at which point that office will become that person’s guardian of property (called “statutory guardian”).
The statutory guardianship of property is terminated if the “incapable person gave a continuing power of attorney before the certificate was issued and the power of attorney gives the attorney the authority over all of the incapable person’s property and the OPGT receives a copy of the PoA and a written undertaking signed by the attorney to act in accordance with the PoA and if someone has replaced the OPGT as a statutory guardian (s.16.1). The OPGT may refuse to appoint the applicant however, unless the applicant provide security in the manner and amount fixed by the OPGT. If the OPGT refuses to grant the application, the OPGT shall apply to the court to decide the matter. The court may order such conditions as is necessary.
Only the incapable person’s spouse, partner or relative, attorney named in a PoA or a trust corporation if the incapable person’s spouse or partner consents in writing, may apply to replace the OPGT as a guardian (s.17(1)). Note that this section contemplates that even if a person has a PoA, the OPGT can still become a statutory guardian, presumably before the OPGT finds out that the person has a PoA. In other words, if you have a PoA, give a copy to your attorney(s) named in it so they can produce it quickly if necessary.
The upshot of all of this is that it is easier, less expensive, more expedient and more convenient for everyone, if people would simply attend at a lawyer’s office to prepare a Power of Attorney for Property and Personal Care and be able to produce it when necessary in order to avoid the involvement of the OGPT.
Some of you may have heard of “Wallace Damages” that were available within wrongful dismissal cases. They were damages designed to compensate an employee who was subjected to “bad faith dismissal” tactics of their employer. Wallace damages arose out of the 1997 case of Wallace v. United Grain Growers. In that case, the employer terminated Wallace’s employment without notice making serious allegations of fraud and communicating those allegations throughout the industry. As a result of the allegations, Wallace could not replace his income and eventually declared bankruptcy. The company withdrew the allegations when the trial began. The Supreme Court of Canada (“SCC”) when it eventually heard the Wallace case held that the employer used bad faith tactics in the manner of discharging Wallace which affected Wallace’s ability to replace his income. The SCC stated that such conduct could lead to an extension of the reasonable notice period.
Since then, judges consider two aspects when deciding upon “Wallace” damages: 1) the nature of the employer’s bad faith and 2) the impact of this conduct on the employee’s ability to find alternative employment. Since then, “Wallace” damages have been awarded in a variety of circumstances including false allegations that an employee’s termination was due to his/her inability to perform the job or was for cause, the employer persists in its allegations of cause up to the time of trial, spreading throughout the employee’s industry that his or her employment was terminated because of dishonesty or reprehensible conduct and firing an employee immediately following a return from disability leave due to major depression.
A recent decision from the SCC however has now significantly changed the “Wallace” landscape. In Honda Canada Inc. v. Keays, the SCC changed the test for “Wallace” damages. Keays was a 14-year employee of Honda. Keays suffered from chronic fatigue syndrome which led to frequent absences. He was on a company disability programs that permitted employees to take absences if they provided a doctor’s note confirming that the absence related to their disability. The employer eventually requested Keays to meet with the company’s occupational medical specialist to evaluate whether he was missing work due to his disability. When Keays refused, Honda fired him. The trial court said that was “hardball” and awarded Keays nine (9) additional months in notice based on “Wallace”.
The SCC disagreed that Honda’s conduct was “egregious” and set aside the “Wallace” damages. Now, an employee must demonstrate to the Court that he/she suffered actual psychological harm as a result of the bad faith manner in which the employment was terminated. The SCC also reminded the lower courts that punitive damages are restricted to “exceptional” and “egregious” cases and must not duplicate aggravated damages. Punitive damages will only be awarded where the employer engages in acts that are “so malicious and outrageous that they are deserving of punishment on their own”, states the Court. The SCC also overturned $100,000 in punitive damages awarded to Keays.
If you have an employment law case, please call me to review it. Each case is different and must be individually reviewed.
