There is a new frustration that is slowly becoming a problem: Small Claims Court offices making their own rules and procedures which do not follow Ministry guidelines, which is causing unnecessary delays. Here are a few examples:
We recently served a corporate Defendant by mail. Pursuant to the Rules, when you serve a Corporation by mail, the Directors must also be served with the Plaintiff’s Claim.
The Small Claims office took refused to accept our Request to Clerk to note the Defendant in default because we had to file an Affidavit for Jurisdiction, because the Director resided outside the jurisdiction of where we sued. They were wrong, but it did not matter.
An Affidavit for Jurisdiction is filed when you need to establish that you are proceeding in that specific jurisdiction, which is based upon where the cause of action arose or where the Defendant resides or carries on business. Where a director resides however, is irrelevant.
Another Small Claims Court office refused to accept our service on a law firm, who was the Defendant. The Court said that we did not obtain the firm’s consent to serve them. The Plaintiff’s Claim clearly indicated they are the Defendant, and not the Defendant’s representative.
When the issue was finally dealt with and we were able to file our request, our request was rejected because the firm filed its Defence while we were trying to note them in default. The law firm filed their Defence and swore an Affidavit of Service that they served us with their Defence, which they did not do. The Court office advised us that they accept everything that comes in, regardless of whether it is correct or not, just not our Affidavit of Service and Request obviously.
We issued a Notice of Garnishment and the Court office refused to release Garnishment funds until we issued a Writ of Seizure and Sale of Lands, claiming that was their policy. No other Court has ever made this request, ever. Filing the Writ took additional time and expenses to do so, which was unnecessary.
Filing materials electronically has become convenient, however, it can take days and sometime weeks for the Court to acknowledge a filing. So, when they make unilateral decisions that affect timing, it causes further delays in moving our matters forward which has been quite the hinderance since the Pandemic.
The above are just a few examples of how Small Claims Court offices create their own policies that do not align with Ministry guidelines and the Rules of the Small Claims Court, which makes the process not only unproductive, but it complicates matters further when additional steps have to be taken simply because a Courthouse creates their own policies.
We need all Court Offices to be consistent, it’s about Justice.
Murray Brown, Licensed Paralegal