What else we can say about careless driving tickets? There are many facts which are well known and understood. A careless driving ticket is one of the most serious offences included in the Ontario Highway Traffic Act. Such a traffic ticket bears 6 demerit points, and a record of a careless driving conviction stays for three years. In most cases, a careless driving ticket includes a set fine in the total payable amount of $490.00. In extreme situations, a punishment can be as high as $1000.00 fine or 6 months of imprisonment combined with a driver license suspension.

Everybody is aware that insurance companies do not love drivers convicted of careless driving. In many cases they just cancel insurance coverage upon receiving information about a careless driving conviction.

To make a long story short, there are many reasons to not leave a careless driving ticket unattended. In view of this proposition, it would be useful to look into what a careless driving offence really is. The Oxford dictionary defines the word “careless” as not giving sufficient attention or thought to avoiding harm or errors. With this definition, you have a good grasp of “careless driving”. Nevertheless, the specifics of a careless driving ticket merit some further explanation.

The legislative definition of careless driving is set in section 130 of the Highway Traffic Act, which says that “every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway”. Simple logic, supported by many court precedents, suggests that at least one of two elements must be proven by prosecution to get a driver convicted: a driver either drove the car on a public road without due care and attention, or operated it without reasonable consideration for other persons using the road.

Looks simple? Not so fast. There are many conditions, worked out by court practice, under which a conviction of careless driving cannot be warranted. Here are some of them:

1. Mere inadvertent negligence, for example, momentary distraction caused by some unexpected external factor, will not necessarily lead to a conviction of careless driving. If some deviation from the reasonable driving pattern was caused by a rock hitting the windshield or an unexpected animal in the driving lane, this may provide a defence against a careless driving charge.
2. The driver need not exercise a perfect level of skill and care. A driver should not be expected to show perfect reaction times or a professional racer’s abilities while on the road. Rather, in considering a careless driving ticket, the judge would see whether the individual exercised a reasonable level of skill and did what an ordinary person would do under the same circumstances.
3. In a careless driving ticket, there is no set of requirements for “due care and attention” that were established once and for all to be used in all careless driving cases. These requirements are considered by the court in each individual case, and depend on road, visibility, weather conditions, traffic conditions and any other conditions that ordinary prudent drivers would take into consideration.
4. Further (and this is important), in order to be convicted of a careless driving the ticket, the driver’s conduct must be of such a nature that it could be considered a breach of duty to the public, and deserving of punishment. This element must be present even if the driver’s conduct fell below the standard of a reasonable person.
5. A motor vehicle accident, even a very serious one, is not indicative of careless driving. Rather, one should look into the way of driving and the situation-specific factors listed above, as well as other relevant circumstances.

Of course, the above is not comprehensive guidance that can be universally applied to defend a driver in each and every careless driving ticket. Yet, I hope that it provides some understanding of what is important and what is not when a careless driving case comes before the judge. 

It is quite possible, under certain circumstances, to recover money given to former partners in the Small Claims Court.  To do so, the plaintiff must prove the following:

1. That he or she actually gave money to the defendant.
2. That he or she was not in debt to the defendant and money given away was not a repayment of the debt.
3. That there is no “presumption of advancement of money,” or the intention to use the money for mutually beneficial purposes. This presumption exists in a limited set of circumstances. There is usually such a presumption between spouses, but it is rare that it is applied to individuals who are engaged or dating.

The most common defence to a claim to collect money given to an ex-partner is that the money was a gift, and not a loan. In order to do so, he or she must demonstrate:

1. That the ex-partner had the clear intention to donate the money or give a gift.
2. That the money was actually delivered.
3. That the money was accepted as a gift.

It must be noted that it is fairly difficult to prove that the money was a gift and not a loan. In most cases, saying “she told me it’s a gift” is not sufficient evidence of intention to donate. Courts are of the view that monies transferred between persons are loans, unless there is overwhelming evidence to the country. As stated in Murray v Toth, “public policy demands that such casual passing of monies should be repayable unless there is satisfactory evidence to show that it was not intended by both parties to be repaid.”

To sum up, all the money you have given your former partner can often be recovered through the Small Claims Court should the relationship go sour. Needless to say, this can be very helpful in addressing unfairness that results from the end of a one-sided relationship. 

The Landlord and Tenant Board has an exclusive jurisdiction over almost all landlord and tenant disputes.  Nevertheless, some of them end up in the Small Claims Court.

Primarily, the Small Claims Court is the appropriate judicial venue for a landlord when the tenant moved out, since the moment this happens, the Landlord and Tenant Board loses its jurisdiction over a landlord’s claim.

Some small claims arising out of landlord-tenant disputes deal with damages to the rental unit, but, as can be expected, the vast majority of Landlord and Tenant Board cases that end up in Small Claims Court are about landlord’s claims for unpaid rent. Grounds for such small claims are usually of three different kinds:

1. The tenant leaves without paying.
2. The tenant vacates the rental unit without a 60 days notice. Though this is often contested by tenants, this is legitimate grounds for a lawsuit because the Residential Tenancies Act does not allow a tenant to leave without such a notice.  
3. The tenant leaves before the time set in a written contract with the landlord, which, In most cases, is 12 months. Though this is also often disputed by tenants, generally, a tenant is under obligation to stay until the contract for the fixed term of tenancy expires.

In cases where there is no dispute about the tenant’s right to leave, the amount of a landlord’s claim  may be as small as rent for one month or even a part of the month. When the tenant terminated the tenancy and vacated the apartment before the time set out in the written agreement, claims may be for several months of rent and the amount of the lawsuit can be more significant.

As in most other small claims cases, the best way to prove a case for both parties is to have written evidence. The landlord, for instance, should be able to produce a copy of the agreement, supporting the claim that the tenant left well before the agreement came to the end.  The tenant, on the other hand, in many circumstances, should have a copy of the notice to terminate the tenancy which was served on (provided to) the landlord within the prescribed time limit. It would also be a good practice to have some proof of service of the notice.

Finally, mitigation of damages is an important factor to consider in this type of the Small Claims Court cases.  The landlord cannot count on a significant amount of rent money if he or she did nothing to find a new tenant after the previous one left in violation of the conditions of the rental agreement about the term of the tenancy.

Though I would not agree with this phrase entirely—a settlement is not supposed to be good or bad, but acceptable for a party to a Small Claims Court proceedings – it’s a good saying to remember and is often repeated in small claims court rooms. The phrase highlights that a settlement is an important objective for by both parties to strive for and consider in the Small Claims Court matter. What benefits can both parties obtain if a Small Claims lawsuit is settled without a trial? Broadly, there are four.

1. Save money on legal expenses.
2. Avoid a trial, which is usually a stressful and time consuming experience.
3. Plan your finances. A settlement is a good way to eliminate risks which are inevitably associated with a Small Claims trial procedure.
4. Complete the matter without assuming liability. A settlement does not mean that the paying party admits liability or considers itself in the wrong. A settlement is usually done on a without prejudice basis and for the sole purpose of avoiding further litigation.  This condition may be specifically noted in a settlement agreement.

Despite the good reasons outlined above, it is a common concern that one of the parties may not follow conditions of the settlement. Small Claims Court practices are quite elaborate to ensure that a settlement, if it is reached at any stage of the procedure, is enforceable. In all cases, a settlement should be put in the form of written agreement which, in precise language, describes what each party must do. For example, if the defendant agrees to pay a certain amount, an agreement must include the amount and timing of payments If the parties agree that the amount of settlement may be paid in instalments, the agreement should include the amount of each instalment and the date when it must be paid.

To discourage a defendant from non-payment, a Small Claims Court settlement agreement should include a provision that if a party is in default of any payment set by the agreement, the other party is entitled to obtain a judgment against the non-payer for the entire amount of the initial claim. It means that the judgment may be issued without a trial based on the evaluation of the damages made by the court, in the absence of the defaulting party. 

What doesn’t come to mind right away, however, is that there is often a third party which bears a risk that is no less, and sometimes greater, than the lender or borrower – the guarantor. The guarantor is an individual who assumes the liability of repaying the loan if the borrower is unable to do so for whatever reason. Small Claims Court is a popular venue to claim unpaid loans from guarantors, who were considerate enough to co-sign another’s debt. Here are several tips, that are often salient to Small Claims Court litigants involved in a creditor-debtor-guarantor lawsuit.

First of all, a guarantor may be liable to repay someone else’s debt only if his or her promise to do so was put in writing and properly signed. An oral guarantee will not be accepted by the Small Claims Court as a basis for the guarantor’s liability. We have also encountered cases where the guarantor denies his or her signature on the written guarantee. In this case, the matter can be resolved through a forensic analysis of the guarantor’s signature, which must definitively confirm that the signature on the loan document does not belong to the alleged guarantor.

Second, a guarantor must be somehow personally interested in signing the loan document. In law, this is called “valuable consideration.” In practice, this may, for example, be some financial remuneration to compensate the guarantor for the risk he or she assumes. Another common form of “valuable consideration” is when one spouse becomes the guarantor so another spouse can obtain financing for some common household needs, such as a renovation. In the absence of some form of valuable consideration, whether material or otherwise, the Small Claims Court is likely to dismiss the claim against the guarantor.

Third, a guarantor can put forward any defence which is available to the main debtor in the Small Claims Court. This may be, for example, a defence under the Limitation Act. Under this Act, if the plaintiff did not make a Small Claims Court claim for loan repayment within 2 years after he or she realised that the loan is due but will not be voluntarily repaid.

To avoid a Small Claims Court claim for an unpaid debt, both guarantors and creditors need to take precautions. Guarantors must exercise due diligence when signing, and creditors must ensure that the guarantor has signed the loan document in person and received some “valuable consideration” for doing so. 

Though the insurance company of the at-fault driver generally provides coverage to repair the other damaged car after the accident, there are situations where the at-fault driver has no insurance. In these cases, the insurance company of the driver who was not at fault would sue the at-fault driver directly through the Small Claims Court for the cost of repair. It must be noted that, though the claim will be initiated and pursued by the insurance company, it will be the owner of the damaged car who will be named as the plaintiff. The defendant, accordingly, will be the at-fault, uninsured driver.

In such cases, the mere fact that the defendant in the small claims court case did not have insurance at the time of the accident is not grounds to make him or her liable for the repair or replacement of the plaintiff’s car. There are several defences available to the uninsured driver.

1. Proving that the accident was not his or her fault. If the defendant is able to show that she is not actually at fault of the accident, she may avoid liability.
2. Show contributory negligence on the part of the plaintiff. This means showing that while the defendant may have some responsibility for the accident, the plaintiff’s actions contributed to the accident, as well. Contributory negligence is based on the Negligence Act. In situations where contributory negligence took place, the Small Claims Court may partially or even fully relieve the defendant from the obligation to pay for damages to the plaintiff’s car. From this point of view, the traffic charges and/or convictions entered against one or both drivers may play a significant role in the course of Small Claims Court litigation, as evidence to suggest the extent of the parties’ fault for the accident.
3. Finally, the defendant may claim that damages are exaggerated. This type of defence would not dispute the extent of the defendant’s fault for the accident, but would aim to reduce the amount of the claim. Here, the defendant would attempt to show that the amount of the claim exaggerates the reasonable amount of money that would be sufficient to fix or replace the plaintiff’s car.  

As you can see, Small Claims Court claims related to car accidents are interesting and also complex because they often lie at the intersection of insurance, traffic and negligence law. The Small Claims Court is often the best avenue for addressing situations where one of the drivers had no insurance. 

Outside of the small claims court procedure, unpaid contractors often seek a construction lien to encourage payment from the customer. As a result, customers frequently have to deal with a lien on their property even if they believe that no payment is due under the circumstances because the work was shoddy.

For a contractor, is a construction lien always the best way to settle an unpaid account? On the flip side, is immediate payment the only option for a dissatisfied customer? In most cases, the parties involved say “yes” to both questions. Well, that’s not always right.

Let us first briefly consider the nature of a construction lien. A contractor may fairly easily register it against the customer’s house by completing and filing the necessary paperwork. No preliminary court order is required. That’s what makes the construction lien attractive – obtaining it does not require going through a small claims or other court procedure. However, this may be the only advantage of this legal instrument for small contractors whose money claims do not exceed the monetary jurisdiction of the Small Claims Court ($25,000).

As mentioned, registering a construction lien is not very complicated. It must be filed with the land registry office, or “preserved,” within 45 days after the contractor completed the work ordered. If this is not done, the lien is “expired.” However, that’s not all that needs to be done to make a construction lien work. In order to maintain the lien, the lien claimant must then “perfect” the construction lien within the next 45 days. To perfect the lien, the contractor must commence a court action against the owner of the house. This means that the contractor should prepare and file a plaintiff’s claim and go through the entire legal process as he or she would have done in any other court case. The right to seize and sell the property under the lien arises only after the court decides that the contractor’s demand for money is legally well-grounded. If a lien is not perfected by way of a court procedure, it may be easily removed by the owner of the property.

What is not commonly known among small contractors is that a lawsuit to perfect a construction lien can only be filed with the Superior Court of Justice. In practice, this means that even a claim for $10,000.00 must go to a higher court even though it is within the jurisdiction of the Small Claims Court. The question is whether it makes practical sense to undertake all the legal expenses and complex procedures of the higher court when the claim can be efficiently made and considered in the Small Claims Court. Most of the time, this isn’t the case.

In small claims court, a default judgment is a judgment that is issued against a defendant without a trial or the defendant’s involvement.  It happens when a defendant did not file a defence in time, missed the trial date or otherwise somehow procedurally mishandled the matter.

A default judgment is enforceable, meaning the plaintiff can try to collect on it right away. However, the Small Claims Court Rules do give the defendant a chance to fix the situation and have the default judgment set aside (cancelled). In order to set aside a default judgment, the defendant must bring a motion and the judge must issue the requisite order. In order to be successful in the motion, the defendant must meet three tests:

1. The defendant or her paralegal must show a Small Claims Court judge that she has a good defence against the plaintiff’s claim. The judge won’t actually consider the evidence and witness testimony as such, but he or she must be convinced that there are strong merits to the defence which could, potentially, lead the defendant to win the case in full or in part when the matter is considered at trial. In order to meet this test, it’s usually a good idea to attach a copy of the defence to the motion (if no defence had been filed).
2. Next, the defendant is obliged to provide a reasonable explanation as to why he or she did not file a defence in time or missed the trial. A “reasonable” explanation is one that gives some objective reasons which prevented the defendant from taking proper procedural steps in his or her Small Claims Court matter. It is best not to use such justifications as “I forgot”, “I did not know” or “I did not consult a paralegal or lawyer.”
3. The final requirements relates to time. In all circumstances, the defendant should make his or her motion to set aside the default judgment as soon as it is reasonably possible. To this end, the rules of the Small Claims Court direct the court to consider whether the motion was filed within a reasonable time after taking into account the specifics of the defendant’s situation. There is no set period of reasonableness. In practice, this means that the Small Claims Court may consider a certain period of time reasonable or not, depending on your circumstances.

Finally, the proper paperwork is last but not least. It is not enough to just fill out the motion form. The motion must come with a detailed affidavit sworn by the defendant, which includes all explanations pertaining to the above tests in clear and convincing language.

It is always best to stay on top of the Small Claims Court procedure, but this may not always be possible. If you had missed something, the Court is generally ready to set aside the default judgment if you can provide a reasonable explanation of the situation. Everyone deserves their day in court. 

The good news is you would not be without legal remedy. If the amount you claim from the other party is under $25,000, you can go to Small Claims Court. And, rather than relying on a contract for the specific items in question, you would look to the Ontario statute that regulates sales: the Sale of Goods Act. The Act covers all major conditions of a sale, providing guidelines for the Small Claims and other courts to use when they resolve sale-related disputes. Here are some highlights:

1. Price of goods.  If a price isn’t determined by a contract, the Small Claims Court judge will determine a reasonable price that the buyer must pay for the goods. The concept of “reasonableness” is difficult to apply, and price determinations will vary based on the specific circumstances of the case. In making determinations, the Small Claims Court will look to evidence such as industry practices or the history of similar transactions.
2. Quality of goods. The Act prescribes that in every sale, there is an implied condition that the goods should be reasonably fit for their intended purpose. Again, the Small Claims Court would look to the specifics of the case. For example, if the buyer purchased a window to fit a 3’ by 4’ opening, and got a 5’ by 10’ window instead, the windows would not, of course, be reasonably fit for their purpose.
3. Time and place of delivery. Time is of the essence in every business, and prompt delivery is key. If there is no contract outlining the time of delivery, the Act specifies that the seller must deliver the goods within a reasonable time. As before, reasonableness is based on circumstances, and evidence regarding industry practices or similar transactions is likely to be important. The Act addresses a further two considerations. First, if a contract does not set exact place of delivery, the place of delivery is the seller’s place of business, and second, the Act prescribes that a seller has delivered the goods to the buyer when it handed them over to a transportation company.  This means that if the seller dropped the items off with, for example, UPS, the buyer can’t make a claim against the seller because the goods were never delivered.
4. Acceptation of goods by buyer. Whether or not the buyer has actually accepted the goods can become important in a dispute. The Act sets out three conditions under which the buyer is deemed to have accepted the goods. The goods are accepted if:

• A buyer notified a seller that he or she had accepted the goods.
• A buyer started using the goods for their primary purpose.
• The buyer did not notify the seller of non-acceptance within a reasonable time, and simply kept the goods.

As you can see, the Act can help settle a number of sale-related disputes even in the absence of a contract. For example, if a party alleges that the goods were not delivered on time to the right place, in the absence of a contract, the Small Claims Court would determine whether the goods were delivered within a reasonable time to the place of business. If there is a dispute about price, the Court will see which price would be reasonable, and so on. So, if for any reason you have not signed a contract when you bought or sold certain products, don’t despair. You or your lawyer or paralegal can look to the Sale of Goods Act to determine how the buyer and seller should have behaved, and try to gain insights into possible outcomes of the matter and the evidence that should be produced.

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