· Being a Good Neighbour

Small Claims

If you cannot resolve a dispute with a service-provider, merchant, skilled tradesman or individual, a quick, economical solution is available in the form of legal action at the Small Claims Division of the Court of Québec.

Small claims court is the arena par excellence for setting many disputes, especially consumer disputes. What's more, the conditions for having one's heard are very straightforward.

Eligibility

·  You must be an individual, acting on your own behalf, i.e. without an attorney.

Or

You must be a legal person (company) which, during the 12-month period preceding the application, had no more than five persons under its direction. A legal person must also act without an attorney and be represented by a director, officer or employee.

·  The individual or company against which you are bringing legal action must reside or have a place of business in Québec.

·  The lawsuit must be based on a breach of contract or damages incurred by an individual or caused to property.

Examples of reasons for legal action

·   You're the proud owner of a new car or house. Shortly after making your purchase, you discover a latent defect, one that you could not see at the time of purchase.

·   You buy a sofa. Six months later, the fabric is already worn and the vendor refuses to reimburse you or replace the item.

·   You called a company in to repair your dishwasher. However, the problem persists and, since the company has refused to come back to do further repair work, you had to go elsewhere.

·   You did some plumbing for a customer a few months ago and are still waiting to be paid.

·   You've bought a travel package based on a brochure at the travel agent's. when you arrive at your destination, you find that the hotel and the site are not at all what you paid for.

·   Your neighbour's dog gets into your garden and wreaks havoc on your flower beds. Your neighbour refuses to pay for the damage.

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Formal notice

Before registering a claim with the small claims court, it's a good idea to make one last effort: send a formal notice. This takes the form of a letter in which you ask the individual or company against which you intend to bring a claim to settle your problem within a specific time frame. You can send your letter by registered mail or have it delivered by a bailiff.

Keep a copy of your letter and the return receipt issued by the post office or the record of proceedings provided by the bailiff.

Where to take legal action

If the individual or company that has caused you to suffer damages fails to respond to either your request for redress or your formal notice, you can take legal action:

·  In the judicial district in which the individual resides;

·  In the judicial district in which the event in question occurred.

Preparing your evidence

Documents

Assemble all documents and, where applicable, any evidence that will help you prove to the judge that you are justified in taking legal action.

Examples:

- Proof of your formal notice

- Cheques

- Receipts

- Invoices

- Contracts

- Warranties

- Estimates

- Sketches

- Photographs

- Expert's reports

- Documents provided by the Office de la protection du consommateur, if you contacted this office beforehand

- Damaged objects, if applicable

Witnesses

If you require one or more individuals to substantiate your proof in court and to testify on your behalf, you must give their names and addresses to the clerk, who will summon them to the hearing.

They may be lay witnesses or expert witnesses. A lay witness is an individual who saw, heard or observed what happened. An expert witness possesses knowledge and recognized experience in the field, i.e. a mechanic, an engineer, a skilled tradesman, etc. you can ask that the fees of this expert be paid by the adverse party; the judge will decide whether this request is founded or not.

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Motion

The motion is the document constituting your claim in small claims court, and is completed by you or the clerk. You must also sign a declaration under oath in which you affirm solemnly that what you have declared is true.

You should begin by determining what you wish to claim:

·   An amount of money as a reimbursement or compensation;

·   Interest on the amount claimed. The clerk can provide rated and terms;

·   Replacement or repair of a good;

·   Cancellation of a contract;

·  Services.

Then, give the clerk the following:

·   The name and address of the individual or company against which you are bringing the claim;

·   The original-photocopies are not valid-of the documents constituting your proof;

·   The names and addresses of your witnesses, if witnesses need to be summoned. If not, simply have them accompany you when you are called before the court;

·   Legal fees: the clerk will give you the amounts. Social aid recipients are exempt from legal fees. If you make a formal request to this effect and win your case, the judgement debtor may be asked to pay these costs.

Hearing

If your case is to come before a judge, you will receive a notice to appear stating the date set for the hearing. When you arrive at the courtroom, check to make sure that your name appears on the roll and that your witnesses are present.

The judge conducts the examination and cross-examination and endeavours to reconcile the two parties. Provide specific information and, if need be, read the summary you have  prepared explaining your problem.

Sometimes, the judge will render a judgement as soon as the hearing is over. This means that you will know the verdict the same day. However, the judge may make a decision a few hours or days later. In this case, the parties receive the judgement in the mail.

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Absence from hearing

If you cannot be present at the hearing due to your age, illness, distance or any other reason deemed valid by the clerk, you must mandate a relative or friend to represent you before the court. This person must be aware of the facts and have in hand a mandate signed by you and authorizing him to represent you.

Executing the judgement

The judgement handed down by small claims court judge cannot be appealed.

It must be executed within twenty days of the date it was rendered, if this happened at the hearing, or the date it was served, if it was sent by mail. Otherwise, the losing party is liable to seizure.

If it was the Office de la protection du consommateur that suggested you take your dispute to small claims court, it would be a good idea to forward it a copy of your judgement.

If a claim is being made against you

If you are the person against whom the claim is being made and decide to contest this claim and prepare a defence, the steps Preparing your evidence, Hearing, Absence from hearing and Executing the judgement also apply to you.

You will have to pay legal fees in the amount indicated on the motio n.

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