Small Claims Court

At the end of last week, the Judge handed down his decision in the Jian Ghomeshi case. The finding was that the Crown had not proven its’ case “beyond a reasonable doubt”. That is the technical definition of what needs to be established in a criminal case before someone is convicted of an offence.

In Business Litigation, which is generally a Civil matter, the burden of proof is: has the plaintiff proven their case “on the balance of probabilities”? This is often described as a lower threshold.

While this threshold is lower than the criminal requirement, it still exists and a Judge will not simply “take your word for it” that something happened. You must prove your case.

To prove a case, evidence is gathered: emails, notes, contracts, photos and witness statements. These all form an important part of proving your case.

If you “forget” something until the defendant’s lawyer is cross-examining you, the decision is not likely going to go in your favour. If a Judge decides you’re lying or colluded with people to build up your case, you’re definitely not going to win.

Believing you are entitled to Judgment is not the same as proving it: you must prove your case or you’re not going to win.

Inga B. Andriessen JD
iandriessen@andriessen.ca

For over 23 years I’ve been a business lawyer and as a big part of that, I’ve sued debtors who owe my clients money.

Collection litigation is only an effective tool if it is done well. If the law firm is the only one making money, then it is not done well.

Our firm’s approach is to first ensure that there is “a pot of gold” at the end of the litigation rainbow. We search to ensure the debtors own property and confirm if there are Judgments against them already that any judgment we would obtain would have to share with.

If the debtor has property and/or is judgment free, we start litigation in the most cost effective way possible. If the claim is $ 25 000.00 and under, we start in Small Claims Court using our flat fee schedule. If the claim is in Superior Court, we use the Simplified Procedure to move the matter through the system as quickly as possible to contain legal fees for the client.

We ensure we do not start collection litigation in areas where mediation is mandatory. Mandatory mediation in a collection law suit is a benefit to a defendant: it increases the costs by approximately $ 2 500.00 and it is “another step” that has to occur before Judgment can ultimately be obtained.

We’re careful to ensure our clients understand the benefits of making a reasonable offer to settle early in the law suit, to ensure the Judgment includes an award of 100% of legal fees incurred from the date of the offer onwards.

All in all, we choose the quickest, most cost effective method to obtain judgment for our clients who are owed money.

We’re creative in our enforcement techniques as well – using the Oppression Remedy and Bulk Sales Act legislation to bring officers and directors into the law suit and expose their personal assets for enforcing Judgments.

We’re good at what we do and we enjoy collecting on behalf of our clients. We’d be happy to help you get paid as well.

Inga B. Andriessen JD
iandriessen@andriessen.ca

I was at a trade show recently, not a boring legal trade show, but the Outdoor Adventure show (hey, I have a life that extends beyond Court Rooms – honest!) and I was overwhelmed by the way many vendors were blurting out information as we walked past their booths. Many of those people spoke so quickly, I had no idea what they were marketing and apparently neither did they. One vendor told us how her product was great for “exhibitionists”: she meant exhibitors. She was mortified when she realized she had been saying “exhibitionists” all weekend.

Fast forward to the Monday after that weekend and I had a great meeting with some entrepreneurs excited about starting a new venture together. I took the time to listen to their thoughts, then slowly explained what legal help we could provide that would suit their needs.

I didn’t go on in detail about the facts from latest Court decision that would impact their situation, I didn’t recite a law from memory and I didn’t use a lot of legal language. I listened and then, in plain English, gave them my advice.

Many lawyers are like the vendor selling to exhibitionists. They speak quickly and are not even aware of what they’re saying. They don’t connect with their clients as business people, they preach down as if law is a pulpit and the client is listening in a church pew (and has to put a lot in the offering plate).

Business law is a conversation between a lawyer and their client. Lawyers need to listen up and be in tune with their client’s business.

If you’d like to talk, I’m listening. (with apologies to Frasier Crane)

Inga B. Andriessen JD
iandriessen@andriessen.ca

It’s July 1, let’s celebrate 147 years of our Country by bringing the commercial use of email to a screeching halt.

I’m not going to repeat what you need to do to comply with the Canadian Anti-Spam Legislation here. Scroll down our Blog and read the CASL Blog for that information.

What I will tell you is that I think this legislation is overkill.

I think this legislation is too expensive for Small Business to comply with.

I think that making Officer & Directors personally liable for email violations is wrong.

If you agree, please write your MP and let them know.

In the mean time, it’s July 1, 2014. Save those unsolicited emails you receive, they are worth $ 200/email come July 1, 2017.

Our firm always looks at a litigation file that we’re starting from the perspective of how to obtain money (not just a paper Judgment) for our client in the fastest, most economical way possible. This is the viewpoint from which this Blog is written.

In Ontario, you must sue in Small Claims Court for matters that are $ 25 000.00 (without interest) and under. Claims over $ 25 000.00 can also be started in Small Claims Court, however, any amount over $ 25 000.00 will not be awarded.

There are times when it is more cost effective to start matters in Small Claims Court, however, the chronic delays in the Small Claims Court process are making those times few and far between.

It is the norm in Small Claims to have defendants request an adjournment of the first motion date, settlement conference date and trial date. Each of these adjournments can add an additional 3 to 6 months, per stage, to a matter. That can drag a Small Claims Court matter out for many more months, if not a year, than a Superior Court matter.

In Superior Court , adjournments are also generally granted if requested, however, adjournments are generally for a period of two to four weeks, not months.

The advantage of the lawyer controlling the Superior Court schedule creates a big benefit for the client in terms of moving the matter along and obtaining judgment in the quickest time possible.

Ironically, given the speed advantage of Superior Court, an undefended matter can often be litigated for less money and Judgment obtained much more quickly than Small Claims Court.

If your lawyer recommends dropping the amount of your claim to fit into the Small Claims Court limit, make sure that lawyer understands the delays in the system and the impact that can have on your claim.

Inga B. Andriessen JD
iandriessen@andriessen.ca

Judgments entitling you to money are just pretty pieces of paper until you take steps to enforce it.

Those Judgments can cost a lot of legal fees to obtain and there should be no satisfaction in obtaining a Judgment that only has value of principle, rather than enforcement.

So, what are the options for enforcing a Judgment?

The easiest option is a garnishment. A garnishment of a bank account that is solely owned by the debtor can be 100% garnished. The money is paid by the bank to the Sheriff, the Sheriff waits at least 30 days to see if there are other Judgments and then distributes the money pro-rata to everyone who has a Judgment against the debtor. The exception to that is that if a government agency has a writ filed, they have a priority to be paid before other Judgment creditors.

Jobs can be garnished at the rate of 20% net income. However, if there is a Family Law garnishment (50% of wages) that garnishment has a priority over non-Family Law Judgment creditors.

Any money owed to a Judgment debtor by another person/entity can also be garnished. Think of garnishment as a game of keep away. The debtor and person who owes them money are throwing a ball. The judgment creditor jumps in the middle of the two and takes (garnishes) the ball.

Another option to enforce a Judgment is to sell property. This is only a good option if the property is solely owned in the name of the Judgment debtor and the mortgage on the property is not significant. The Judgment creditor must pay significant fees to Sheriff for this process and the proceeds are shared by all Judgment creditors.

The Sheriff can also seize and sell goods of value. This process generally has significant fees and the Sheriff is reluctant to proceed with this in many areas of Ontario, resulting in significant legal fees being incurred to sell goods.

An examination in aid of execution is a once a year opportunity for a Judgment Creditor to ask the debtor questions under oath regarding assets that can be used to satisfy the Judgment: this is a good way to get information, but often expensive. Many Judgment debtors know the game: they take steps to increase the legal fees incurred before they finally provide answers.

At our firm we have even had several Judgment debtors choose 10 days in jail instead of answering questions about assets. Of course, ultimately, they answered the questions and they
had the 10 days in jail as an added bonus.

The best way to obtain information to enforce a Judgment is to conduct a Credit Search. This can only be done with the debtor’s permission or with an agency that has the right to search credit when a Judgment is obtained. We recommend our clients include ongoing Credit Search authorizations as part of their new customer intake forms: better to be safe than sorry.

Our firm has been successfully enforcing Judgments for over 22 years. We don’t like to get paper Judgments, we like to get money for our clients.

Inga B. Andriessen JD
iandriessen@andriessen.ca

The Ontario Provincial election will be held June 12 and this is a good time to tell the candidates of all parties what’s troubling this Province.

As a law firm whose practice includes Business Law Litigation from the Small Claims Court to the Court of Appeal throughout Ontario, we have a strong opinion on the need for more resources to be provided to the Civil Court system in Ontario.

We don’t practice Criminal Law so we have no knowledge, nor opinion, on how long it takes to get to trial in that area, this Blog is only about Civil Law.

As a result of increasing the Small Claims Court Limit to $ 25 000.00 in Ontario, the number of claims being processed through that Court system has skyrocketed. However, the number of Judges has, at best, remained the same. In some jurisdictions the number of Small Claims Court Judges has decreased.

This means that for an undefended matter in Toronto, it takes at least 6 months to get a Judgment. If the matter is defended, the time is 18 months at a minimum.

In Brampton, the delay is even longer as that region is completed snowed under by the amount of claims and lack of Judges.

Of course, in most jurisdictions, there are not enough Court Rooms to accommodate more judges, so that needs to be dealt with at the same time as increasing the number of Judges.

At the Superior Court level ($ 25 000.00 +) in Toronto it takes at least four months to obtain Judgment if the matter is undefended. If the matter is defended and goes through to trial, it can take 2 years or more.

In Milton, Ontario a defended matter can get to trial in approximately 18 months after being issued, however, I understand the fall out from that is it takes 9 months to obtain an uncontested Divorce in the Region as the Judges who hear Civil matters also hear Family matters. That is not right.

The fall out from lack of Judges also extends to the Court Counter Staff.

At the Brampton’s Sheriff office they are responsible for receiving money garnished from employers and bank accounts. That money is to be held 30 days and then distributed between everyone who has a Judgment against the debtor.

Well, Brampton’s Sheriff office doesn’t open envelopes for at least six weeks. After the envelopes are opened and put in the system, they process the money after approximately 90 to 120 days, at least.

The impact of this delay is that other Judgments can come into the system and compete with the money that should have been distributed almost a half year earlier. This is not right.

This needs to be fixed.

Inga B. Andriessen JD
iandriessen@andriessen.ca

Mike Duffy, Nigel Wright, Rob Ford – all men whose reputations have been taking a hit over the past week. Each of these individuals is choosing a different way to protect their reputation, but leaving aside personal reputations, what about your business reputation?

The issue of defamatory remarks by anonymous posters has become a business issue many have had to tackle – when hit with these remarks it is important to evaluate their impact and what, if anything, you intend to do about it.

If someone posts something defamatory about your business in an obscure blog that receives no traffic and does not appear in search results, then pursuing the poster will attract more attention to the false comments than leaving them alone. Before proceeding “on principal” ask yourself if the legal fees will exceed the monetary impact the posting has on your business. If the answer is yes, then you need to consider if you must proceed in any event to prevent yourself from being targeted by others or if it is better to simply let the blog comments die an slow, unviewed death.

Your business reputation extends beyond bad reviews on Yelp or in Blogs, it also extends into your credit relationships with customers. I recall vividly a young dentist we assisted many years ago. The dentist set up practice in a neighborhood and quickly found that many of the cheques for post-dated payments were being returned NSF. The dentist was getting a reputation for doing work without taking immediate payment and many were taking advantage of this. Ultimately, the dentist chose to sue on several accounts and “surprisingly” the dentist was no longer the victim of people seeking services with payment over time. The dentist has gone on to have a thriving practice, dispelling the concerns of many business owners that if they sue on for money that is owed, they will lose customers.

As lawyers we are always taught, you have one reputation, you don’t want to ruin it.

Are you protecting your business reputation from ruin?

Inga B. Andriessen JD
iandressen@andriessen.ca

I snagged the title to this Blog from a Huffington Post Blog by Krizia. The original blog described the evolution of a small business called Lotus Premium Denim. This Blog is not about Denim.

The title of the Blog grabbed my attention because it refers to two things many lawyers fail to do, but two things I know that we do at our firm.

The title of the Blog grabbed my attention because it refers to two things many lawyers fail to do, but two things I know that we do at our firm.

Delivering on our promise is critical in maintaining the client relationships we have established over the past 20 years. I’m proud to say that many of the clients we have today are clients we have had for the entire 20 years the firm has been around.

The keys to “promising” as a lawyer in my opinion are:

1. Communicating clearly to the client what you will be charging them.
As lawyers all we have to sell is our time, but how we sell it (by the hour or by the task) is an important difference and clients must be told about this up front.

2. Honestly evaluating any litigation and being clear, even if you have a strong case, there is always a possibility of a Judge finding against you.
Clients have to be told Judges are human and let’s face it, there is a reason we have Courts of Appeal.

3. Before starting any litigation, assess the likelihood of collecting on a Judgment and advising the client if the only result will be a “pretty piece of paper stamped Judgment”.
No one just wants a pretty piece of paper and why should the law firm be the only party that benefits from litigation?

If you are our client, we understand you and we promise to continue delivering excellent legal services to you.

Inga B. Andriessen JD
iandriessen@andriessen.ca

Sometimes writing a weekly blog is a challenge, some weeks it almost writes itself. This week the latter is true.

I heard on the radio yesterday, then read in the paper today, the story of the $ 22 000.00 Cell Phone Bill incurred by the 12 year old son of a family vacationing in Mexico. The son got a sunburn and stayed in the room for three days watching videos and gaming, thereby running up the bill. The father is outraged at the Cell Phone Company.

In a similar vein, I spoke with a business owner a few weeks ago who wanted to sue on an invoice that was 26 months overdue. No payments had been made since the invoice was delivered over two years ago. As a result of the limitation period in Ontario, the business owner was no longer able to sue. The owner told me that it was not fair that a law suit was no longer possible and the debtor had taken advantage of the business.

My answer to both of the above situations is: stop blaming others.

I have a child who has had access to cell phones since 10 years of age. That child has had drilled into them the cost of data and the fact you cannot use anything except WiFi if we are out of Canada. That child has also been taught how to turn off data roaming and the issue is discussed more than once every time we’re about to head south of the border. Not surprisingly, I have never had an unpleasant cell phone surprise.

With respect to the business that didn’t sue for over 2 years, that is just bad financial management. Our firm’s 30-60-90 Sue program wouldn’t let the receivable go that long. Banks won’t finance receivables past 90 days – why should a business? A debtor holding out payment for over two years didn’t take advantage of a business, the business let the debtor not pay for far too long.

When I pointed the above out to the business owner, my sense was I was the first person who had ever told them that they were responsible for their actions. I suppose in the future I may be giving the same shocking revelation to the child who racked up the cell phone bill the father is now complaining about and teaching his child the valuable lesson of “it’s not your fault, blame others.”

Taking responsibility for your personal actions and the actions of your business is important in order to succeed in life and business. The sooner that lesson is learned, the better.

Inga B. Andriessen JD
iandriessen@andriessen.ca