Rules of the small claims court

Rule 11.05(1) ➢ Defendant shall not file defence or take any other step in proceeding except motion for set aside ➢ Defendant noted in default is not entitled to notice of any step in the proceeding ➢ Defendant noted in default is not served with any documents except o default judgment o amendment of claim or defence o motion after judgment o notice of enforcement proceedings under Rule 20

What are the consequences of being noted in default?

Claim for a specific amount that can be determined based on documentation or a simple formula. Example: Claim for money owed pursuant to an unpaid invoice.

. Define "liquidated demand for money" and give an example

rule 12.02

. In what circumstances can a court strike out or amend a claim or defence.

Plaintiff must file an affidavit for jurisdiction (Form 11A) with clerk, or provide evidence to judge that action has been properly brought in that jurisdiction (Rule 11.01(3))

1. What must happen before the clerk may note default when all the defendants are served outside the court's territorial division?

➢ to resolve or narrow the issues in the action; ➢ to expedite the disposition of the action; ➢ to encourage settlement of the action; ➢ to assist the parties in effective preparation for trial; and ➢ to provide full disclosure between the parties of the relevant facts and evidence.

12. A settlement conference shall be held in every defended action within 90 days after the first defence is filed (Rule 13.01). Purpose of conference (Rule 13.03(1):

rule 12.01 -file with the clerk a copy that is marked amended, in which all additions and changes are identified, -the amended document is served on all parties including any parties in default -filing and service of the amended document shall take place at least 30 days before the originally scheduled trial date. - the court on motion allows a shorter notice period.

7. List the steps involved in amending a pleading

An appeal lies to the divisional court from a final order of the small claims court in action. -for the payment of money in excess of the prescribed amount, excluding costs, -for the recovery of possession of personal property exceeding the prescribed amount in value.

Appeal cja 31

Damages are the amount awarded by the court for compensation. "costs" are an additional amount added to the judge to reimburse usually only partially, for disbursements and fee's.

Damages vs costs

A motion for a new trial can be made under Rule 17.04(1) within 30 days after the final order is made. The grounds for a motion for a new trial are (Rule 17.04(5): ➢ the judge made a purely arithmetical error in the determination of the amount of damages awarded, or ➢ there is relevant evidence that was not available to the party at the time of the original trial and could not reasonably have been expected to be available at the time.

Grounds for motion of a new trial rule 17.04

Yes, the clerk may note a defendant in default in an unliquidated claim (Rule 11.01), but the clerk cannot sign default judgment in an unliquidated claim. If all defendants have been noted in default, the plaintiff may make a motion in writing for an assessment of damages or request an assessment hearing (Rule 11.03).

May the clerk note a defendant in default when the claim is for an unliquidated amount? May the clerk enter a default judgment in this situation?

rule 11.06. the moving party has a meritorious (good) defence. the moving party has a reasonable explanation for the default the motion was made reasonably conduct of parties, legal issues, any prejudice to a party as a result of the order.

Motion to set aside. The ourt mud be satisfy that....before motion can be set aside.

(a) Plaintiff shall attach copies of any documents upon which she intends to rely in support of her claim to the plaintiff's claim. True False Authority: Rule 7.01(2)2 (b) This is a claim for an unliquidated amount. True False (c) Plaintiff shall file proof of service with the court, and the clerk may note Defendant in default and sign default judgment. True False Authority: Rule 11.01(1), 11.02(1), 11.03

Plaintiff commences an action against Defendant for $15,000.00 for damage to property. Defendant is personally served with the plaintiff's claim on April 15, 20--. Defendant fails to deliver a defence within the prescribed time. Defendant is not a party under disability.

Defendant is not a party under disability. (a) Plaintiff shall attach copies of any documents upon which she intends to rely in support of her claim to the plaintiff's claim. True False Authority: Rule 7.01(2)2 (b) This is an action for an unliquidated amount. True False (c) Plaintiff shall file proof of service with the court, and the clerk may note Defendant in default and sign default judgment. True False Authority: Rule 11.01(1), 11.02(1)

Plaintiff commences an action against Defendant for recovery of a loan of money in the amount of $15,000.00. The terms of the loan, including the amount, interest, due date and so on, are set out in a written agreement signed by Plaintiff and Defendant. Defendant is personally served with the plaintiff's claim on March 15, 20--. Defendant fails to deliver a defence within the prescribed time.

Before granting a motion for set aside, the court must be satisfied that ➢ the defendant has a meritorious defence ➢ the defendant has a reasonable explanation for the default ➢ the motion was made as soon as reasonably possible in the circumstances If the above conditions are met, the court will allow the motion, but grant costs to the plaintiff for delay and inconvenience.

Rule 11.06 refers to setting aside a noting of default or entry of a default judgment "on such terms as are just". What is the meaning of the phrase? Of what must the court be satisfied in order to grant the motion?

Motion Procedure for temporary relief pending final resolution of dispute Commenced by filing Form 15A notice of motion and supporting affidavit Evidence: Sworn written evidence in affidavit form, with documents attached as exhibits Trial Final resolution of dispute Commenced by issuing a Form 7A plaintiff's claim Evidence: Sworn spoken evidence by witnesses appearing in person, along with documents received in evidence under Rule 18.02(1)

What are the three differences between motion and trial

Award costs to other parties. The costs are intended to compensate the other parties for the delay and inconvenience arising out of the person's lack of preparedness.

What can the judge do if a person is "inadequately prepared" for a settlement conference? Why is this done?

The defendant has 20 days to file or they are noted in default, The only thing they may do is file a motion if they qualify and meet the criteria rule 11.06. the consequences of noting in default are. A defendant noted in default cannot file defence, Any step in the proceeding may be taken without the defendants consent a defendant who has been noted in default is not entitled to notice to any steps being take in the proceeding and need not be served with and documentation except. -service of default judgement -amendment of claim or defence -motion after judgement -post judgement proceeding against a debtor under rule 20.

What happens to a defendant if they fail to file?

Page 181 of the text Pre-judgment interest accrues on amount owing from date cause of action arose or date stated in debt agreement to date of judgment. Post-judgment interest accrues from date of judgment to date that all amounts owing, including principal, pre- and post-judgment interest, and costs (including the costs of any enforcement steps) are paid in full.

What is "pre-judgment interest"? What is "post-judgment interest"?

Possible bias arising out of knowledge of settlement discussions and parties' full and frank disclosure of other issues to the settlement conference judge

What is a reason why a settlement conference judge is not also the trial judge?

(Defendant can make motion even if was served but will likely not succeed). A person who has been served with a document in accordance with these rules is nevertheless entitles to show, on the motion to set aside the consequences of default, extension of time, in support of an adjournment, in the circumstance that the document did not come to the persons notice or, came to the persons notice only at some time later then when it was served or is deemed to have been served.

failure to receive document rules 8.10

A settlement conference shall be held in every defended action within 90 days after the first defence is filed. rule 13.03

settlement conference

Issuing a claim involves the cerk dating signing sealing the claim and giving it a court file number. 7.03

what does issuing a claim involve?

a fixed amount that can be proven by documentation, such as an unpaid invoice. also known as special damages.

what is a liquidated claim give example

A claim for an amount that is not fixed and specific and must be determined by the court based on evidence, also known as general damages.

what is an unliquidated amount, give an example.

14. A trial judge's reasons are contained in the spoken or written statement of the evidence the judge accepts as true, and the legal principles (both statutes and case law) upon which the judge relies in making her or his decision. If the trial judge's reasons are spoken, they must be transcribed by a court reporter A trial judge's order is the judge's decision in the matter, and will be incorporated into a judgment. The decision states who must pay whom, costs awarded, and so on.

what is the difference between a trial judges reason and a trial judges order?

A failure to comply with these rules is an irregularity and does not render a proceeding or a step document or order in proceeding is a nullity, and the court may all necessary releif. rule 2.01

what is the effect of failure to comply with the rules of small claims court

these rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the courts of justice act. rule 1.03 (1)

what is the general principle for interpreting the rules

to resolve or narrow the issues in the action to expedite the disposition of the action to encourage settlement of the action to assist the clients in preparation for the trial to provide full disclosure between the parties of the relevant facts and evidence.

what is the purpose of this conference?

A person authorized by the law society act to represent a party in that court. in other words a license.

who can represent a client in small claims court?