Small Claims
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Small Claims (by Stephen [ON]) Oct 11, 2017 12:38 PM
       Small Claims (by Ken [NY]) Oct 11, 2017 1:12 PM
       Small Claims (by Kim [TX]) Oct 11, 2017 1:38 PM
       Small Claims (by Stephen [ON]) Oct 13, 2017 7:34 PM

Small Claims (by Stephen [ON]) Posted on: Oct 11, 2017 12:38 PM

I received defence to my Plaintiff's claim. The tenants must think they have a problem as they have hired a paralegal to draft the defence and represent them in court. It is not very well written, to the bulk of damages ($5,000) the paralegal claims that it is normal wear and tear when renting to a family of five to have $5,000 of carpet and paint damages over a period of 23 months. Patently untrue, I have rented to families before and have never had damages like this. There is a problem however, I failed to serve them with the supporting invoices and on this grounds they suggest the claim should be dismissed. I think I have been confused by Ontario's new online filing system as all the instructions said was serve the Plaintiff's claim not the documents uploaded with it. I am making arrangements to serve all documents plus incoming and outgoing inspection reports plus a photo album with over 100 before and after photos on their paralegal later this week. I am also meeting with my own lawyer to seek advice as to how much leeway the court will give me on this if I seek to remediate through quickly serving the requisite papers and more so they have everything well in advance of any hearing.

I am considering hiring my lawyer to represent me at the mandatory settlement conference. There is a significant amount of money at stake. The claim is for over $7,000. Hypothetically if I spend $1,000 and my legal eagle is able to marshal sophisticated arguments that keeps their paralegal at bay and gets me a better result I am better off than if I spend $0 and end up losing everything because a represented defendant gets a better result than an unrepresented defendant. I have only been to small claims once before and that was a default judgment that just went to an assessment hearing. The judge had me set out my evidence of the value of damages, it was all very straightforward. I have not been in an adversarial setting before. From my reading of these pages it seems relatively rare the tenants show up in small claims with lawyers in tow. It is my bad luck that my tenants have decided that their exposure is such that it is worth it to them to shell out to defend the case. All input welcome.

Small Claims (by Ken [NY]) Posted on: Oct 11, 2017 1:12 PM

If need be cancel the current small claims and file a new one and do the service properly,no big deal.Sounds like they are admitting that they did the damage but they want to call it normal so it sounds to me like you just need to convince the judge that what they did is not normal wear and tear.

Small Claims (by Kim [TX]) Posted on: Oct 11, 2017 1:38 PM

I wouldn't worry too much about the settlement conference; a mandatory conference does not mean mandatory settlement. Just be fair and then stand firm. This will all probably ride on what the judge considers reasonable based on the age of the carpet and paint, etc. Your carpet may have been in excellent condition, but if it was already 5 years old when they rented from you, the judge is not likely to allow replacement cost in your claim.

Small Claims (by Stephen [ON]) Posted on: Oct 13, 2017 7:34 PM

Well, I consulted my lawyer on the matter of failure to serve the supporting documents such as invoices for work performed. He pointed out a couple of excerpts from the Ontario Rules for the Small Claims Court. One particularly stated that an irregularity is not a nullity, which means in essence that a minor deviation from the rules is not fatal to a case. He says that if I serve the documents ASAP that should be fine. So it is game on. He looked at my photographic evidence and thought that it was impressive.

He also said that he did not think I needed any help in dealing with the paralegal, that her work was relatively poorly drafted and that I can explain the core elements of the case calmly and clearly. So that is what we will do. The paralegal argues that $5,000 of damages is par for the course when renting to a family over the course of two years. If it was then landlords would be out of business; either that or families would routinely be refused rental accomodation. I don't think that the judge is going to accept these arguments.

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