See you in court

Sharon Thomson had had enough of being paid in dribs and drabs. Her owner-operator husband, Bruce, worked steadily enough, but the cash flow was anything but predictable. And then things got intolerable. He delivered a premium load with special billing arrangements, but the carrier decided to not honour the original rate. So the Thomsons pulled the plug and quit the business.

Good move? It seemed like the only option at the time, but then the impact of what they’d done began to sink in. They had let the carrier win without even putting up a fight.

“At first, we put it behind us as a learning experience,” Sharon says. “Then it occurred to us that because of our unwillingness to stand up for what was ours, we had let that carrier off the hook for what we were owed, and he’s probably done that dozens of times before and since. Because of people like us, carriers like that stay in business.”

So, with a friend’s encouragement, they decided to do battle after all — through the courts. The cost and time involved in a typical court proceeding usually means that owner-operators don’t see lawsuits as a viable way of recovering damages. And that’s why the Thomsons took their case to small-claims court.

Did they win? You bet. In less than two weeks, they recovered the $2,600 they claimed, at a cost of less than $300 (including the cost of the process server who actually handed the carrier the papers). And, because the carrier elected to pay right away, they never even set foot in a courtroom.

“I couldn’t believe how easy it really was,” Thomson says. “The fees were next to nothing, and the server took all the confrontation away. It might have been different had we gone to trial, but I guess that sonofagun knew he was wrong all along.”

Small-claims court is a real court of law designed to be a “do-it-yourself” kind of solution, where ordinary people can handle their own cases, whichever side they’re on. It’s less formal and less complicated than higher courts, but the outcome is just as binding.

In most cases, the litigant makes his own case, presents his own evidence and witnesses in front of a judge, who then decides the outcome of the case. It’s designed to be lawyer-free, but you can choose to hire legal representation. The greatest advantage to small-claims court is the cost. It’s very inexpensive compared to higher courts. While the fees vary from province to province, they seldom exceed a few hundred dollars.

Small-claims court lets you sue for damages in auto accidents, property damage, broken verbal or written contracts, bad cheques, unpaid wages, and the collection of personal debts, among other things. There are limits to what the court will hear, so check with the local court before proceeding. And there are limits on the damages you can try to recover, which also vary by province — from a low of $3,000 in Newfoundland to a high of $10,000 in several provinces (see sidebar).

The limits become important when deciding what course of action to take against another party. If the problem is of an on-going nature, with an escalating amount, you’ll want to file the claim before the damages you’re looking to recover go over the provincial limit. You can file suit for a greater amount, but the court will limit the recovery to the provincial limit. For example, if you filed a claim for $10,000 in a province like Manitoba with a limit of $7,500, you’d only be able to collect the lower amount. You’d have to decide if the cost of the full recovery in a higher court, plus the time involved, would be worth the difference. You might be better off settling for $7,500 if the costs were minimal and the case proceeded much faster.

Some provinces place limits on the interval between the time the issue arises and when you can file suit. In Ontario, for example, it’s two years. The process itself can take anywhere from a few weeks to a year. It’s not uncommon to see the call to court produce an out-of-court settlement either, as with the Thomsons, who had a cheque in their hands in less than three weeks. Any way you look at it, it’s considerably faster than conventional court.
As with any situation that requires desperate measures, the collateral damage resulting from a trip to court may be tough. For example, the case might mean you sacrifice a business relationship, or you might not want to face the personal discomfort that comes with confronting a former friend or business associate in court. Then again, if the relationship has soured to the point that a trip to court is the only way to resolve the dispute, it might be time to move on anyway.

It’s a confrontational process, period. There will be a winner and a loser, and the loser could be you.

Norman B. Pickell, a lawyer, arbitrator, and small-claims court judge, advises anyone with a claim to review the case with a critical eye, especially the material that will be presented as evidence, to ensure it proves you’re right. Thinking or believing you’re right simply isn’t enough, he cautions.

“You have to be prepared to make a compelling case the first time out,” he says, “so make sure you’ve got ample evidence in your favour, and be certain that you can present it well before the judge.”

If all this sounds too unpleasant to consider, you might want to hire professional help. Process servers can be hired to serve the papers, and to collect if necessary, or to represent you in court. Sharon Thomson says she’s glad for not having to confront her husband’s former boss when serving the papers, or when collecting the cheque for that matter.

“I found our process server in the Yellow Pages, under paralegals, and he did a fine job,” Thomson says. “But I’d have to guess that some are better than others. It’s buyer beware, I suppose.”

The courts are there for you, in circumstances where other means won’t produce an agreement. In cases where a carrier treats owner-operators unfairly, small-claims court might be a constructive alternative to taking the loss on the chin. In Thomson’s words, “Stop being a victim. Stand up and fight for what’s yours. Small claims court is a pretty effective way of settling a score in a fair and legal manner, and that’s better than we’re sometimes treated.” SSurprise, surprise. Every province has slightly different rules for small-claims court. Here’s a coast-to-coast online guide to getting those debt-repayment wheels turning.

Alberta www.albertacourts.ab.ca/pc/civil/index.htm
British Columbia www.ag.gov.bc.ca/courts/civil/smallclaims/rules/index.htm
Manitoba www.manitobacourts.mb.ca/smallclaims.htm
New Brunswick www.legal-info-legale.nb.ca/ mainframe_en.html
Newfoundland www.gov.nf.ca/just
Nova Scotia www.gov.ns.ca/just/small.htm
Ontario www.attorneygeneral.jus.gov.on.ca/english/courts/scc
PEI www.gov.pe.ca/courts/supreme/about.php3
Quebec www.justice.gouv.qc.ca/english/tribunaux/quebec/civile-a.htm
Saskatchewan www.saskjustice.gov.sk.ca/
Yukon www.justice.gov.yk.ca/prog/cs/crt/smallclaims.html

Before you go to court, check CanLaw.com. This site has an overview of the small-claims environment, including advice on what to do before and during the court proceedings, and links to other helpful sites. www.canlaw.com/scc/smallclaims.htm

Lawyer, judge, and small-claims expert Norman Pickell has assembled an extensive list of web sites pertaining to the small-claims process, as well as a few sites from small claims courts in American states. www.normanpickell.com/links_smclaim.htm