Tuesday, April 12, 2016
Thursday, March 24, 2016
Appeals
I represented a friend in Small Claims court. He had a contractor put in a steel roof and complete a few other jobs within the same home. To make a long story short we sued for the full amount of $25,000 allowed by the Small Claims Court. We won and obtained judgement.
After sending a letter to the defendant looking for payment we received paperwork from the Defendant advising that he had retained a lawyer now and that the judgment was being appealed. So the Defendant had 30 days from the time of judgment to file his notice of appeal. After that, his counsel has to order the transcript so as to 'perfect' the appeal. The rules say that the defendant has 60 days to perfect the appeal from the time the defendant receives the transcript.
Well we waited to give them ample time to perfect the appeal and eventually followed up with the defendants lawyer about the appeal. We were advised that he had yet to receive the transcript as it was still being approved by the Deputy Judge.
The key word here is 'received'. It is going on 6 months now and not only has the appeal not been perfected, but the defendants lawyer has yet to receive the transcript. So I must ask the questions.......my friend would be the first to admit he doesn't have money to replace the roof and was hoping the judgment he won would go towards the replacing of the roof. Well not only did this whole court process take almost two years, but even after obtaining judgment, we cannot even enforce it. So my friend must continue to be patient and allow the court process to continue. Meanwhile, his roof is garbage and is causing extensive damage inside. One might say well you will get interest no? Yes of course, but the interest as per the Courts of Justice Act is negligible.
A very difficult situation to say the least. It will be even more frustrating and time consuming if the appeal is granted and a we have to go through another trial.
To be continued.
After sending a letter to the defendant looking for payment we received paperwork from the Defendant advising that he had retained a lawyer now and that the judgment was being appealed. So the Defendant had 30 days from the time of judgment to file his notice of appeal. After that, his counsel has to order the transcript so as to 'perfect' the appeal. The rules say that the defendant has 60 days to perfect the appeal from the time the defendant receives the transcript.
Well we waited to give them ample time to perfect the appeal and eventually followed up with the defendants lawyer about the appeal. We were advised that he had yet to receive the transcript as it was still being approved by the Deputy Judge.
The key word here is 'received'. It is going on 6 months now and not only has the appeal not been perfected, but the defendants lawyer has yet to receive the transcript. So I must ask the questions.......my friend would be the first to admit he doesn't have money to replace the roof and was hoping the judgment he won would go towards the replacing of the roof. Well not only did this whole court process take almost two years, but even after obtaining judgment, we cannot even enforce it. So my friend must continue to be patient and allow the court process to continue. Meanwhile, his roof is garbage and is causing extensive damage inside. One might say well you will get interest no? Yes of course, but the interest as per the Courts of Justice Act is negligible.
A very difficult situation to say the least. It will be even more frustrating and time consuming if the appeal is granted and a we have to go through another trial.
To be continued.
Tuesday, March 22, 2016
Garnishments
The courts can be very frustrating. One of the more frustrating situations, is enforcing an order and having to wait for monies. Let me use as an example a small claims order. You fill out the paperwork for say a garnishment of wages. Assuming you have done everything right the company will, within a certain amount of time, remit monies to the courts.
Now, the courts upon receiving the first payment from the employer, is to hold that first payment for 30 days. This gives someone the time they require to file a motion if need be to stop a garnishment. This 30 day hold only to the first remittance. Every payment after that, once the courts receive the payments, they are to write and send a cheque to the person owed the money. This may be done through a representative if that person had legal counsel etc.
One would think that it shouldn't take more that a month and a half to receive monies. This is not the case. I have actually experienced where the courts have received monies and have not even placed them into their trust account. To add insult to injury, once the money is placed in their trust account, it takes another month or more for them to write a cheque and send it to the persons owed the money. Some courts are better than others, but in some cases certain courts only have part time bookkeepers which adds to the problem. I have seen it where it has taken in excess of 4 months for the courts to release monies owed.
This is simply not acceptable. This is money owed to individuals who have had to traverse the courts and spend time and money. Oh and lets not forget the frustration, stress and anxiety attached to many of these cases for an individual. That four months is interest that they could be getting on this money but instead have to wait. When one calls the courts to inquire, the clerks either give an excuse as to what has happened and why. Most simply accept this as the price of doing business.
I think that should more people complain perhaps something would change. What do I know? Nothing has changed and it would seem nothing will change anytime soon. So at the moment, it seems to be the best we have for the time being.
Let me add this......if it was the government who wanted monies owed to them, they want it yesterday, with interest. Double standard?
Now, the courts upon receiving the first payment from the employer, is to hold that first payment for 30 days. This gives someone the time they require to file a motion if need be to stop a garnishment. This 30 day hold only to the first remittance. Every payment after that, once the courts receive the payments, they are to write and send a cheque to the person owed the money. This may be done through a representative if that person had legal counsel etc.
One would think that it shouldn't take more that a month and a half to receive monies. This is not the case. I have actually experienced where the courts have received monies and have not even placed them into their trust account. To add insult to injury, once the money is placed in their trust account, it takes another month or more for them to write a cheque and send it to the persons owed the money. Some courts are better than others, but in some cases certain courts only have part time bookkeepers which adds to the problem. I have seen it where it has taken in excess of 4 months for the courts to release monies owed.
This is simply not acceptable. This is money owed to individuals who have had to traverse the courts and spend time and money. Oh and lets not forget the frustration, stress and anxiety attached to many of these cases for an individual. That four months is interest that they could be getting on this money but instead have to wait. When one calls the courts to inquire, the clerks either give an excuse as to what has happened and why. Most simply accept this as the price of doing business.
I think that should more people complain perhaps something would change. What do I know? Nothing has changed and it would seem nothing will change anytime soon. So at the moment, it seems to be the best we have for the time being.
Let me add this......if it was the government who wanted monies owed to them, they want it yesterday, with interest. Double standard?
Saturday, March 19, 2016
Laying of a Private Infromation
Long Time
It has been a long time since last I blogged. Since my last blog, many things have happened. Lets simply start by talking about a process known as laying a private information with a Justice of the Peace.
This process is quite simple, literally. One simply has to attend a court house and speak with a Justice of the Peace and convince the Justice that someone has committed a crime against them, or in some cases they may simply be looking for a Peace Bond against someone.
Now common sense would dictate that if you are going to speak with a Justice, you will need to convince this Justice with grounds, I will call it reasonable grounds. I would like to think that that be done by way of witness statements, documentary evidence, etc......to just go in and tell a Justice that they want a Peace Bond because someone said something or hurt them in some way. My God, if anyone and everyone could simply go in and say this, and the Justice goes on and issues a Peace Bond or issues a summons to a person to answer to the information laid by this private person, then I think the courts would be overwhelmed with cases.
Just because it is a private information and not as a result of a police investigation doesn't make the problem any less serious. There must be a burden on that accuser to perhaps not prove it right then and there but at least have enough information that could form reasonable grounds.
I know someone who was issued a summons to answer to a request to the courts for a Peace Bond. What is remarkable is this person was simply issued a summons and has yet to receive disclosure. Knowing the facts in this case, this is simply a matter involving a person (accuser) that was not happy with a service she received and because of this she has filed cases in several jurisdictions to get revenge of some kind. These other matters had been settled but the accuser was not satisfied. Instead, she has in fact now broken the law herself by making these false allegations, however, the defendant must now take the time and effort to defend themselves and find a way to hold the accuser accountable. Will this be easy. Probably not. Will it cost money and take time. Absolutely, but as I often say, you have to know what battle to fight. This is a battle that one must keep a level head and trust in the system. Easier said than done.
I think the bigger issue is how this even got to this point. This person has provided no evidence or grounds to defend the Justice issuing this summons. The accuser should have been shut down at the outset. The Justice could not possibly have had enough information. Perhaps I say all this as I am biased and am friends with this individual but stepping back and discussing the facts with others, it seems the consensus is that this should be withdrawn and some kind of repercussion against the accuser. To be continued as this story is still developing.
It has been a long time since last I blogged. Since my last blog, many things have happened. Lets simply start by talking about a process known as laying a private information with a Justice of the Peace.
This process is quite simple, literally. One simply has to attend a court house and speak with a Justice of the Peace and convince the Justice that someone has committed a crime against them, or in some cases they may simply be looking for a Peace Bond against someone.
Now common sense would dictate that if you are going to speak with a Justice, you will need to convince this Justice with grounds, I will call it reasonable grounds. I would like to think that that be done by way of witness statements, documentary evidence, etc......to just go in and tell a Justice that they want a Peace Bond because someone said something or hurt them in some way. My God, if anyone and everyone could simply go in and say this, and the Justice goes on and issues a Peace Bond or issues a summons to a person to answer to the information laid by this private person, then I think the courts would be overwhelmed with cases.
Just because it is a private information and not as a result of a police investigation doesn't make the problem any less serious. There must be a burden on that accuser to perhaps not prove it right then and there but at least have enough information that could form reasonable grounds.
I know someone who was issued a summons to answer to a request to the courts for a Peace Bond. What is remarkable is this person was simply issued a summons and has yet to receive disclosure. Knowing the facts in this case, this is simply a matter involving a person (accuser) that was not happy with a service she received and because of this she has filed cases in several jurisdictions to get revenge of some kind. These other matters had been settled but the accuser was not satisfied. Instead, she has in fact now broken the law herself by making these false allegations, however, the defendant must now take the time and effort to defend themselves and find a way to hold the accuser accountable. Will this be easy. Probably not. Will it cost money and take time. Absolutely, but as I often say, you have to know what battle to fight. This is a battle that one must keep a level head and trust in the system. Easier said than done.
I think the bigger issue is how this even got to this point. This person has provided no evidence or grounds to defend the Justice issuing this summons. The accuser should have been shut down at the outset. The Justice could not possibly have had enough information. Perhaps I say all this as I am biased and am friends with this individual but stepping back and discussing the facts with others, it seems the consensus is that this should be withdrawn and some kind of repercussion against the accuser. To be continued as this story is still developing.
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