Is Getting a Paralegal Necessary For a Small Claims Court Case?

Help From a Paralegal Can Make a Significant Difference In the Outcome of a Small Claims Court Case.

Understanding Why Professional Paralegal Advice Is Important Even In Small Claims Court Cases

Lawsuit Document The rules that apply to Small Claims Court cases allow laypeople to self-represent.  An unpaid friend or family member may also represent a Plaintiff or Defendant within a Small Claims Court case.  However, just because self-representation can be done fails to suggest that self-representation should be done.

The Law

A Plaintiff or a Defendant in a Small Claims Court case may legally, although perhaps unwisely, choose to self-represent within a Small Claims Court case.  Additionally, a Plaintiff or a Defendant may also choose layperson representation from a friend or family or from a professional such as a Shemesh Paralegal Services Paralegal.  The law permitting a friend or family member to represent is provided within section 26 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as well as Part V of By-Law 4 to the Law Society Act, R.S.O. 1990, c. L.8, whereas each respectively state:

Representation

26 A party may be represented in a proceeding in the Small Claims Court by a person authorized under the Law Society Act to represent the party, but the court may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of the party if it finds that such person is not competent properly to represent the party, or does not understand and comply at the hearing with the duties and responsibilities of an advocate.

Acting for friend or neighbour

4.  An individual,

i.  whose profession or occupation is not and does not include the provision of legal services or the practice of law,

ii.  who provides the legal services only for and on behalf of a friend or a neighbour,

iii.  who provides the legal services in respect of not more than three matters per year, and

iv.  who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

Acting for family

5.  An individual,

i.  whose profession or occupation is not and does not include the provision of legal services or the practice of law,

ii.  who provides the legal services only for and on behalf of a related person, within the meaning of the Income Tax Act (Canada), and

iii.  who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services. 

Potential Problems
Shortcomings Within Pleading Documents

Proceedings within the Small Claims Court, like all court matters, require documents known as pleadings.  In the Small Claims Court, the pleadings are known as the Plaintiff's Claim (Form 7A), which is prepared by the Plaintiff, and the Defence (Form 9A), which is prepared by the Defendant.  In some cases, a Defendant's Claim (Form 10A) may also be involved.  The details required as content of these documents is prescribed by the Rules of the Small Claims Court, O. Reg. 258/98 as well as precedent case decisions and if improperly completed, or completedly without sufficient details, such failings may become problematic with adverse affects upon the legal case.

The case of Csepei v Northwoods Custom Doors, 2014 CanLII 37141 provides an example of where a layperson failed to adequately prepare a legal document and suffered the consequences.  Specifically, per the Judge in the Csepei case, it was said:

50.  The next issue is mitigation. It is reasonable to expect there have been opportunities for Northwoods to recover money by way of salvage. The court is aware of Northwoods’ claim for the cost of environmentally sound storage at Home Wood Working’s facility. The Csepeis opted to save money by not employing a lawyer or paralegal. The downside of that is they failed to plead, or adduce evidence on, failure of mitigation. Section 25 of the Courts of Justice Act cannot be stretched far enough to save the Cseipeis from that complete failure to plead and adduce evidence. To do so would be grossly unfair to Northwoods and would be to disregard established law.  [Emphasis Added]

As shown above within the Csepei case, this mistake of failing to include details of a failure to mitigate argument, the Csepei party was forbidden from pursuing such issues at Trial.  This omission appears as a very costly mistake.

In another case, Krauck v Shoppers Drug Mart, 2014 CanLII 1848, the Plaintiff failed to prepare the pleading document with sufficient details to describe what the law refers to as a reasonable cause of action; and accordingly, for this reason, among others, the case was dismissed.  In this case the Judge specifically referred to various details that were lacking and stated:

4.  The handwritten claim fails to disclose a reasonable cause of action.  As became apparent from her submissions, the plaintiff appears to believe that she need only prove a loss and a judgment in her favour must then result.  That may explain why her claim fails to make any allegations of negligence or particulars of negligence and therefore fails to disclose a reasonable cause of action.

Costs Risks

In the case of Hinschberger v. Welsh, 2012 CanLII 98283, similar to the Csepei case, a self-represented person made various mistakes; and accordingly, in addition to losing the case, also became subjected to $3,250 is costs penalties.  In addressing the mistakes, the Judge specifically stated:

45.  Mr. Hinschberger is self-represented.  On the one hand the court can sympathize with him for his failure to analyze the case properly from a legal perspective for the simple reason that he is a layperson.  On the other hand if he had invested in legal representation the matter might not have come this far and cost so much for the defendants to litigate.

46.  Based on a full-day trial with junior counsel representing the successful parties and the amount claimed being a combined total of $47,708, I fix a representation fee at $1,250 and double that amount under rule 14.07, to $2,500.  For the costs of the settlement conference in Orillia which were reserved to the trial judge I award $500 since the matter should have been commenced in Cambridge under rule 6.01 and the plaintiff’s decision to proceed in Orillia imposed unnecessary cost on the defendants which constitute special circumstances.  I allow disbursements fixed at $250.

Summary Comment

Getting professional legal help, even for a Small Claims Court case, can make the difference between success and failure including potential costs sanctions.  The risk of losing what may otherwise be a winning case is significantly avoided by obtaining professional advice from a knowledgeable and experienced Paralegal.


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