Small Claims Court Jurisdiction Increased to $35,000: What does this mean for current cases?

 

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Currently, the most someone can ask for in Small Claims Court is $25,000. Beginning on January 1, 2020, the Small Claims Court will increase its jurisdiction from $25,000 to $35,000.

Litigants who started a claim in the Superior Court can seek to transfer their case to the Small Claims Court if the amount sought is worth $35,000 or under.

Under the Courts of Justice Act, section 23, a litigant may transfer their case to the Small Claims Court by: filing with the local registrar of the Superior Court of Justice a requisition with the consent of all of the parties. To succeed, the claim must be for (a) money or the recovery of personal property and (b) the amount claimed must be equal to or less than $35,000. The requisition form can be found on the Ontario Court Forms website.

There is no requirement for litigants to transfer their case. However, plaintiffs have an incentive to transfer their claim to the Small Claims Court if they are seeking an amount for $35,000 or under. Under Rule 57.05, of the Rules of Civil Procedure, the court may order that the plaintiff shall not recover any costs if they recover an amount within the monetary jurisdiction of the Small Claims Court.

I anticipate that if you started your lawsuit but haven’t had your trial yet, you may be able to seek more money, up to $35,000. Under Rule 12 of the Rules of the Small Claims Court, “A plaintiff’s or defendant’s claim and a defence to a plaintiff’s or defendant’s claim may be amended by filing with the clerk a copy that is marked “Amended”, in which any additions are underlined and any other changes are identified.”

Filing and service of the amended document should take place at least 30 days before the originally scheduled trial date, unless, “(a) the court, on motion, allows a shorter notice period; or (b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1).” The Ministry of the Attorney General will likely post a bulletin on this matter in the coming months.

(Views are my own, and do not reflect the views of any organization and are not intended to be legal advice.)

 

 

Court Services of the Future: Online Mediation

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In British Columbia, the Legal Services Society has launched a free, online service called “The Family Resolution Centre”. It is part of My Law BC(delivered by legal aid provider Legal Services Society).

The Family Resolution Centre program of My Law BC helps separated couples create parenting plans online. The parenting plans deal with parenting time, vacations, and other childcare needs. Alternatively, couples can request up to five hours of free assistance from a mediator. It is the first service of its kind in Canada. It can be accessed from mylawbc.com under “Mediation Tool”.

Tools like the Family Resolution Centre are a great way to help address the issue of access to justice. Many problems we typically think of as legal problems are really social problems. In the article titled “Access to What?”, Rebecca Sandefur points out that when solving the access to justice problem we need to redefine “access to justice”. Access to justice does not mean unmet legal needs. “Judges and lawyers work at the top of an enormous iceberg of civil justice activity… the access to justice crisis is a crisis of exclusion and inequality, for which legal services will sometimes provide a solution.” Rather addressing access to justice requires us to think of problems more broadly. For instance, thinking of them as issues in relationships, work, or neighbours.

I hope that similar jurisdictions can implement a similar program to the Family Resolution Centre. The program seems to helps people solve their problems simply and in a manner that the public respects.

(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca)

Court Forms: Should They be Eliminated?

 

Court forms are confusing. They are difficult to fill in and contain legal jargon. Even worst, the guides for court forms can be hard to follow. Especially, if you do not have a strong grasp of English or an understanding of the court system.

I have personally witnessed numerous people struggle with court forms, both while waiting to file a court document and while volunteering at a legal clinic.  In the article “Literacy Requirements of Court Documents: An Underexplored Barrier to Access to Justice“, Professor Amy Salzyn, et al., write about the difficulties in navigating court forms. For example, some forms indicate “no.” in place of the word number. Other forms refer to “pre-judgment interest”, without providing an explanation for what “pre-judgment interest” means. Even using the word “plaintiff”, without an explanation, can be confusing.

What is the solution?

Most court forms should be eliminated. Instead, the government should remove forms that are essentially duplicates of each other and leaving only the most necessary forms. The remaining forms should be designed with accessibility and the user in mind.

When designing for the user, we should consider the best format. Perhaps the best format is a fillable online form. The user could be asked questions online, and then the answers could be used to generate the court forms. The questions could be asked in writing or by video. For originating claims, questions should be asked to ensure that the form is being filed in the right jurisdiction.

Guides for completing the forms should be available in multiple formats, from written formats to videos to infographics. The guides should be simple. Less words, the better.

Common types of claims should have examples online for people to follow. The forms should also contain links to legislation so people know that they are referencing the right laws and can read the laws.

After the forms are completed, people should be directed to videos and written guides explaining the next steps. People should be able to book court appearances online. There should be an easy portal to follow.

Eventually each case, should have its own electronic file. Where litigants and judges can access the pleadings, motions, and court decisions for each case.

Unfortunately, in Ontario there has been little success in creating electronic filing or better court forms. But how much longer can our court system rely exclusively on paper and retain the confidence of the public?

(Originally posted on slaw.caViews are my own and do not reflect the views of any organization.)

 

Incentivizing New Lawyers to Work in Rural Communities

[In Ontario] About 67% of lawyers are over the age of 40 and about half of all lawyers practise in Metropolitan Toronto. The age skew is similar in other provinces, where a notable percentage of lawyers have been practicing for 20 years or more and are entering the latter stages of their careers. The number of lawyers graduating is increasing, but not enough to offset the bubble of lawyers that will likely retire over the coming decades. (“Small communities struggle to pry lawyers from Canada’s big cities, despite promise of jobs” – Mandy Storey for National Post)

There is a need for new lawyers in rural communities across Canada. The federal and provincial governments should be developing a program with law societies to incentivize new lawyers to work in rural communities. A strong incentive could be eliminating or reducing tuition debt in return for working for 5 years in a small community.

There is a similar problem in medicine with respect to access to family doctors. “Health outcomes in Northern Ontario are also worse than in the rest of the province on several measures… ‘The 800,000 people living in Northern Ontario are more likely to have worse health, poorer access to health care, and die earlier than people in other parts of Ontario’ … While some of that difference is due to the ‘social determinants of health,’ access to a family physician or primary care provider was noted to be significantly less in Northwestern Ontario compared to the provincial average.” (“Northern Ontario badly needs doctors. But ‘forcing’ them to work there is no solution” by Sarah Newbery)

In Nova Scotia, the government has implemented compensation packages meant to attract doctors to the city and rural communities. “Among them, the tuition relief program that offers up to $120,000 toward medical school tuition in exchange for a five-year commitment to work in the province. The change in incentives also include a $60,000 family medicine bursary to help create a family practice for three years, and a debt assistance plan worth up to $45,000.” (“Nova Scotia Drops Rural Limits on Incentives to Attract Doctors” by Carolyn Ray – CBC)

In addition to financial incentives, Newbery points out recommendations made by the “Rural Road Map for Action” and the “Summit North 2018” conference. Some of these recommendations could be adopted to new lawyers. The recommendations include:

  • creating more formal clinical care networks among rural clinicians and specialists
  • formalizing mentorship for new-to-practice physicians
  • creating collaborative relationships for community recruitment not just within communities, but across communities
  • creating a regional rural locum pool familiar with the needs of the population and the realities of rural practice that can support local community physicians
  • ensuring access to enhanced skills training for physicians in a timely way based on the needs of the community

The University of Saskatchewan has also studied the issue of attracting young lawyers to rural areas and ensuring adequate training. In the paper “Improving Access to Civil and Family Legal Services in Rural Saskatchewan“, an incubator model to train young lawyers for practicing in rural communities is discussed.

With a concentration on mentorship, the structure of an incubator is generally comprised of one or more principals with a number of participants, who could be student interns, articling students, or practitioners who have only recently been licensed… The incubator experience involves the participants learning the business of running a law firm with the aim that by the time they leave the incubator they will be empowered to successfully implement the practices and values learned in the incubator within their own legal practice.

It is recommended that the incubator be in a hub centre which already serves the needs of a much larger geographical area. Possible sites include La Ronge, Prince Albert, and Moose Jaw.

With the Baby Boomer generation beginning to retire, the need for lawyers in rural communities will grow. Technology will not be able to bridge the gap completely. As mentioned in the paper “Improving Access to Civil and Family Legal Services in Rural Saskatchewan”, access to internet is not equal. “We must remember that there are still many people in Saskatchewan without access to internet or telephones.” I hope that our governments and law societies work together to address the need for lawyers in rural communities.

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(Originally posted on slaw.ca. Opinions are my own and do not reflect the views of any organization.)

Solving the Issue of Access to Justice by Redefining “Access to Justice”

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“Justice is open to all; like the Ritz Hotel.”

In the article “Clients Need Legal Services But Not Necessarily Lawyers“, Mark Cohen writes about the issue of access to justice. He points out that improving access to justice does not always mean improving access to lawyers. He refers to new products that provide legal services. These products include a chatbot that helps fight parking tickets, LegalZoom, Hello Divorce, and alternative legal service providers (like in house departments) that are not built on the profit per partner model.

Cohen also refers to the scholarship by Rebecca Sandefur in explaining why improving access to justice does not necessarily mean improving access to lawyers. Improving access to justice starts by redefining what “access to justice means.”

In the article titled “Access to What?”, Sandefur redefines the meaning of “access to justice”. Sandefur points out that solving the problem of access to justice requires a new conceptualization of the problem. “The definition of the crisis as one of unmet legal need comes from the bar.” The idea that it is an unmet legal need comes from the fact that judges and lawyers are defining the problem. “Judges and lawyers work at the top of an enormous iceberg of civil justice activity.”

Most of the justice issues are invisible and handled without the help of judges or lawyers. Declaring the problem as a problem of legal services gives lawyers a starring role and makes for a tidy, but inaccurate narrative.

Sandefur writes that the “access to justice crisis is a crisis of exclusion and inequality, for which legal services will sometimes provide a solution.” Most civil justice problems are handled by people on their own primarily because “people do not consider law as a solution for their justice problems.” Rather, people think of their problems as issues in relationships, work, or neighbours.

Sandefur recommends that research be done to better understand when access to justice can be achieved by using the courts, legal services, or by another actor. Many problems adding to the access to justice crisis are part of larger systemic problems.

(This article was originally posted on slaw.ca Views are my own and do not represent the views of any organization.)

Mental Health Courts: The Way of the Future

In April 2018, Edmonton launched a mental health courtto great results. The court was designed to address the backlog of criminal cases by addressing mental health concerns. At the root of many criminal cases and recidivism is an underlying mental health issue. Traditional courts are not always equipped to address the mental health element underlying the cases. Meaning that the cycle of repeat offences continues.

The mental health court reduces the likelihood that someone will reoffend by “tackling the mental health issues that put them there in the first place.” In the CBC article by Andrea Huncar, she writes that “Unlike conventional courtrooms, mental health court moves at a slower pace. Judges can make quicker, more informed decisions based on access to the real-time expertise of a forensic psychiatrist and mental health nurse, and computerized medical files — all of which provide a more holistic view of the accused.” It is a collaborative process between judges, duty counsel, Crown prosecutors, healthcare and social workers, sheriffs, and community agencies.

The informal nature of the proceedings allows the court to be more culturally sensitive to the types of sentences. Assistant Chief Judge Larry Anderson credits the mental health court for effectively and efficiently dealing with matters. “Chances are it just would have gone over for a longer period of time and come back without anybody ever actually having been able to sink their teeth into it.”  I hope that more provinces adopt a similar mental health court to address the backlog of the criminal cases and potentially reduce recidivism.

(Originally posted on slaw.ca. Views are my own and do not reflect the views of any organization.)   

Pro Bono Ontario Crisis: Go Fund Me Page

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Last week it was announced that Pro Bono Ontario Law Help Centres will be closed. Pro Bono Ontario is a charity. As part of its mandate, it has set-up three Pro Bono Help Centres (two in Toronto and one in Ottawa). The centres help self-represented litigants with their civil cases.

Pro Bono Ontario relies on lawyers to volunteer their time. However, it requires $500,000 for its operating expenses. These expenses include rent and the cost of administrative staff.

Pro Bono Ontario has a $10 return for every dollar invested. This amounts to around $5,000,000 in savings to the provincial government.

Despite the value it offers the public, Pro Bono Ontario’s request for bridge funding from the Ontario government was denied. As a result, the Centres cannot operate past December 14, 2018.

A GoFundMe page has been set up by former Ontario Bar Association president Quinn Ross.

A petition can also be signed here to establish a source of funding for Pro Bono Ontario.

(Views are my own and do not represent the views of any organization.)