The purpose of the Small Claims Court is to provide a forum for litigants to resolve their disputes in a quick and cost-effective manner. While the procedures of the Small Claims Court are designed to allow for the ease of use of self-represented litigants, the process remains intimidating for many, especially those who are unfamiliar with the legal system. Hiring a lawyer to navigate the Small Claims Court system can serve to alleviate confusion with the process and could make the difference in the success of your case.
Many people are unsure whether they even have a case, or what the prospect for success of their claim may be. A skilled lawyer will be able to meet with you and assess your claim, answer your questions and provide a legal opinion which highlights the strengths and weaknesses of your claim.
If you do choose to proceed with your claim, a lawyer can assist you in drafting your pleadings in a clear and concise manner that best serves your case and makes your claim easy for the Judge to read and understand. A lawyer will present your case in an objective manner, which is beneficial for those who may have difficulty in organizing their case or who have a great deal of emotion attached to their claim. Furthermore, a lawyer can sort through the documentation related to your claim in order to identify those documents which are necessary to support your claim, and protect documents which are privileged and should not be disclosed.
Once your claim is filed, a lawyer familiar with the process can navigate through many of the procedural steps, including serving the claim on the defendants, assessing any defences which may be filed, and handling interlocutory steps like drafting motions and affidavits or noting defendants in default, if necessary.
In many cases the party on the other side of your claim will have hired their own lawyer to protect their interests. In this way, a lawyer acting on your behalf can serve to protect your rights and deal with opposing counsel directly. On the other hand, having a lawyer on your side to deal with an unrepresented defendant can make the process less stressful on you, as all communication with the defendant is done through your lawyer.
The Settlement Conference, a mandatory meeting between the parties before a judge to discuss the potential for settlement can be an intimidating situation for an inexperienced litigant. A lawyer acting on your behalf can effectively advocate on your behalf to a judge in the skilled and professional manner required by the Court.
Finally, a lawyer knows the best way to present your case at trial. There are Rules on the type and scope of questioning that can be asked, the evidence that is admissible, and procedures to follow while arguing your case before a Judge. An experienced Small Claims court lawyer can present your case in a well-prepared, organized manner that takes into account all of these procedural considerations.
The legal process is intimidating for the inexperienced litigant, no matter what level of Court. Retaining a qualified lawyer that act on your behalf or on behalf of your business and organize and draft your claim, represent your interests through the settlement conference, and advocate on your behalf at trial could be the difference in the success of your case.
Civil Litigation
Monday, June 20, 2011
Thursday, June 9, 2011
"Freehold Condos" -- Behind the Misnomer
Homebuyers tend to be divided between those who seek the convenience of condominium living and those who seek maximum control over their monthly expenses and run screaming from the lack of control over condominium fees, which they believe is inherent in condominium ownership. Recognizing this tendency, real estate listings abound with references to 'freehold' condominiums as entities embodying the best of both worlds.
Generally, the term "freehold condo" is used by builders and by the real estate industry to describe (usually) a townhome in which unit owners are assigned responsibility for maintaining and repairing their individual condominium units -- with these individual units being defined in such a way as to encompass the exterior surfaces of the home. The condominium corporation in such a 'freehold condo', however, is still assigned responsibility for maintaining the common elements, which usual encompass the roadway(s) and any grounds not caught within the boundaries of the individual condo units.
For those who want to be free from a certain amount of 'yard work' but do not wish to be made responsible (through the collection of monthly maintenance fees) for the costs of maintaining and repairing their neighbours' homes, a townhome condominium complex that assigns responsibility to individual homeowners for the maintenance and repair of the interior and exterior of their or own townhome may be an ideal purchase. In this light, such 'freehold condos' may suit those home buyers who are concerned with limiting future increases in condominium fees.
With a traditional condominium, condominium fees greatly increase over time largely because, in such a condominium, the condominium corporation has been assigned the task of maintaining and repairing, at the very least, the exterior of the buildings in the complex. Generally, real estate salespersons and builders are using the term 'freehold condominium' to refer to condos where individual unit owners are responsible for the regular repairs and maintenance to their units. As such, the underlying expectation is that the condominium corporation will not need to greatly increase condominium fees over time to take into account the cost of repairing the condominium buildings. Increases in condo fees may (and likely, will) still occur. However, it is assumed that these increases would not reflect the significant cost of maintaining and repairing deteriorating buildings. Any increases are more likely to reflect inflationary pressures/increased labour costs and rising costs associated with the ongoing need for regulatory compliance.
The problem with blindly accepting the industry usage of the term "freehold condo" is that, at law, there is no such creature. Owners of homes described as "freehold condos" within different condominium complexes may have differing obligations to repair and maintain the exterior of their homes. Similarly, different condominium complexes containing homes described as "freehold condos" may have significantly differing common elements, the maintenance and repair costs of which will be reflected in differing condominium fees.
The fact is that if a home is part of condominium complex it is a condominium. It is not a freehold home. This is so regardless of the fact that may 'feel like' a free hold because the individual unit owners may be assigned the responsibility of maintaining and repairing their individual homes. In Ontario, the Condominium Act, S.O. 1998, c. 19., imposes numerous requirements on condominium corporation relating to the management of condominium property and broadly governs the respective rights and obligations of the condominium corporation and individual unit owners. More importantly (from the perspective of individuals interested in the 'freehold' aspect of so-called "freehold condos"), the Condominium Act allows each condominium corporation considerable leeway to determine through its declarations what repair and maintenance expenses will be incurred by the condo corporation (and paid for through the collection of condo fees) and what repair and maintenance expenses will be incurred and paid for by individual unit owners. Even among condominiums described as "freehold condos", there can be significant variation with respect to the potential for condominium fees to increase.
Thus, rather than simply accepting a salesperson's description of the listed property as a 'freehold condo', the prospective purchaser of such a condominium should request from the vendor a copy of the condominium declarations and bylaws as well as a copy of the status certificate and provide the same to his or her lawyer for review. The condominium declarations, in particular, will help to identify whether the repair or maintenance of any parts of the condominium units within a condominium complex is the responsibility of the condo corporation regardless of the salesperson's description of the listed property as a 'freehold condo'. For example, it is not terribly unusual for the declarations to provide that the unit owners are responsible for maintaining and repairing the exterior of their townhomes with the exception of the roof. The logic behind such a provision is that in a townhome it is very difficult to repair only one's own section of roof without affecting one's neighbour's roof. While the logic of such a provision is sound, the existence of such a provision within the condo declarations certainly makes the state-of-repair of rooflines throughout the complex a relevant consideration to a potential purchaser.
D. Dean Obradovic
Civil Litigation
Generally, the term "freehold condo" is used by builders and by the real estate industry to describe (usually) a townhome in which unit owners are assigned responsibility for maintaining and repairing their individual condominium units -- with these individual units being defined in such a way as to encompass the exterior surfaces of the home. The condominium corporation in such a 'freehold condo', however, is still assigned responsibility for maintaining the common elements, which usual encompass the roadway(s) and any grounds not caught within the boundaries of the individual condo units.
For those who want to be free from a certain amount of 'yard work' but do not wish to be made responsible (through the collection of monthly maintenance fees) for the costs of maintaining and repairing their neighbours' homes, a townhome condominium complex that assigns responsibility to individual homeowners for the maintenance and repair of the interior and exterior of their or own townhome may be an ideal purchase. In this light, such 'freehold condos' may suit those home buyers who are concerned with limiting future increases in condominium fees.
With a traditional condominium, condominium fees greatly increase over time largely because, in such a condominium, the condominium corporation has been assigned the task of maintaining and repairing, at the very least, the exterior of the buildings in the complex. Generally, real estate salespersons and builders are using the term 'freehold condominium' to refer to condos where individual unit owners are responsible for the regular repairs and maintenance to their units. As such, the underlying expectation is that the condominium corporation will not need to greatly increase condominium fees over time to take into account the cost of repairing the condominium buildings. Increases in condo fees may (and likely, will) still occur. However, it is assumed that these increases would not reflect the significant cost of maintaining and repairing deteriorating buildings. Any increases are more likely to reflect inflationary pressures/increased labour costs and rising costs associated with the ongoing need for regulatory compliance.
The problem with blindly accepting the industry usage of the term "freehold condo" is that, at law, there is no such creature. Owners of homes described as "freehold condos" within different condominium complexes may have differing obligations to repair and maintain the exterior of their homes. Similarly, different condominium complexes containing homes described as "freehold condos" may have significantly differing common elements, the maintenance and repair costs of which will be reflected in differing condominium fees.
The fact is that if a home is part of condominium complex it is a condominium. It is not a freehold home. This is so regardless of the fact that may 'feel like' a free hold because the individual unit owners may be assigned the responsibility of maintaining and repairing their individual homes. In Ontario, the Condominium Act, S.O. 1998, c. 19., imposes numerous requirements on condominium corporation relating to the management of condominium property and broadly governs the respective rights and obligations of the condominium corporation and individual unit owners. More importantly (from the perspective of individuals interested in the 'freehold' aspect of so-called "freehold condos"), the Condominium Act allows each condominium corporation considerable leeway to determine through its declarations what repair and maintenance expenses will be incurred by the condo corporation (and paid for through the collection of condo fees) and what repair and maintenance expenses will be incurred and paid for by individual unit owners. Even among condominiums described as "freehold condos", there can be significant variation with respect to the potential for condominium fees to increase.
Thus, rather than simply accepting a salesperson's description of the listed property as a 'freehold condo', the prospective purchaser of such a condominium should request from the vendor a copy of the condominium declarations and bylaws as well as a copy of the status certificate and provide the same to his or her lawyer for review. The condominium declarations, in particular, will help to identify whether the repair or maintenance of any parts of the condominium units within a condominium complex is the responsibility of the condo corporation regardless of the salesperson's description of the listed property as a 'freehold condo'. For example, it is not terribly unusual for the declarations to provide that the unit owners are responsible for maintaining and repairing the exterior of their townhomes with the exception of the roof. The logic behind such a provision is that in a townhome it is very difficult to repair only one's own section of roof without affecting one's neighbour's roof. While the logic of such a provision is sound, the existence of such a provision within the condo declarations certainly makes the state-of-repair of rooflines throughout the complex a relevant consideration to a potential purchaser.
D. Dean Obradovic
Civil Litigation
Wednesday, June 1, 2011
Sure, You Have Auto Insurance, but Do You Have Enough?
Nobody is immune from the risk of an accident.
If you live in Ontario and own, lease or finance an automobile, it’s the law that you have auto insurance if you wish to operate the vehicle on public roadways. But aside from complying with legal obligations, obtaining an insurance policy on your vehicle helps to protect yourself and your family’s assets against claims made against you following a car accident.
Motor vehicle accident injuries can range from minor bruises to life-altering traumatic brain injuries and death. Injured individuals can make a wide range of claims against the at-fault drivers and owners of vehicles, including those for pain and suffering, past and future economic loss resulting from an inability or decreased ability to work, and many other expenses stemming from the injured person’s condition. Further, the person’s family can claim for expenses incurred for the benefit of the injured person and also for monetary damages for a loss of care, guidance and companionship.
Most often, standard motor vehicle policies are limited to $1 million in coverage. This means, in the absence of coverage issues, that the insurer will indemnify and defend the policy holder up to $1 million dollars plus legal costs and pre-judgment interest that has accrued on a claimant’s damages entitlement. The insurer will pay a claimant’s damages and will hire a lawyer to represent the policy holder’s interests.
However, insurers’ obligations to indemnify and defend are limited by the amount of coverage in a policy. For example, if a claim is asserted for $2 million, an at-fault driver will be personally responsible for any of a claimant’s damages in excess of their policy limits. The policy holder will not have the benefit of indemnity or a lawyer to defend against the remaining $1 million claim. The claimant will look to the at-fault driver’s assets to cover the remaining damages. Further, the driver or owner must pay for its own legal counsel.
Over the past couple of decades, the amounts of claims made by individuals involved in motor vehicle accidents have increased substantially. It is no longer the exception that claims are asserted for damages in excess of $1 million. With the recent changes of September 2010 in relation to Statutory Accident Benefits (insurance coverage that individuals claim against their own insurers), it is anticipated that claims will continue to increase against at-fault drivers.
There are a couple of ways to protect yourself and your family from these increasing claims. Firstly, for a modest increase in your premium, policy limits can be increased to amounts greater than $1 million. Secondly, an “umbrella policy” can be obtained, which has the effect of bringing in insurance coverage from your home insurance policy. In this way, drivers and owners of vehicles can protect themselves and prevent exposure to claims for damages that would otherwise be in excess of their policy limits and the significant legal costs and interest associated with motor vehicle accident cases.
Andrew Keesmaat
Civil Litigation
If you live in Ontario and own, lease or finance an automobile, it’s the law that you have auto insurance if you wish to operate the vehicle on public roadways. But aside from complying with legal obligations, obtaining an insurance policy on your vehicle helps to protect yourself and your family’s assets against claims made against you following a car accident.
Motor vehicle accident injuries can range from minor bruises to life-altering traumatic brain injuries and death. Injured individuals can make a wide range of claims against the at-fault drivers and owners of vehicles, including those for pain and suffering, past and future economic loss resulting from an inability or decreased ability to work, and many other expenses stemming from the injured person’s condition. Further, the person’s family can claim for expenses incurred for the benefit of the injured person and also for monetary damages for a loss of care, guidance and companionship.
Most often, standard motor vehicle policies are limited to $1 million in coverage. This means, in the absence of coverage issues, that the insurer will indemnify and defend the policy holder up to $1 million dollars plus legal costs and pre-judgment interest that has accrued on a claimant’s damages entitlement. The insurer will pay a claimant’s damages and will hire a lawyer to represent the policy holder’s interests.
However, insurers’ obligations to indemnify and defend are limited by the amount of coverage in a policy. For example, if a claim is asserted for $2 million, an at-fault driver will be personally responsible for any of a claimant’s damages in excess of their policy limits. The policy holder will not have the benefit of indemnity or a lawyer to defend against the remaining $1 million claim. The claimant will look to the at-fault driver’s assets to cover the remaining damages. Further, the driver or owner must pay for its own legal counsel.
Over the past couple of decades, the amounts of claims made by individuals involved in motor vehicle accidents have increased substantially. It is no longer the exception that claims are asserted for damages in excess of $1 million. With the recent changes of September 2010 in relation to Statutory Accident Benefits (insurance coverage that individuals claim against their own insurers), it is anticipated that claims will continue to increase against at-fault drivers.
There are a couple of ways to protect yourself and your family from these increasing claims. Firstly, for a modest increase in your premium, policy limits can be increased to amounts greater than $1 million. Secondly, an “umbrella policy” can be obtained, which has the effect of bringing in insurance coverage from your home insurance policy. In this way, drivers and owners of vehicles can protect themselves and prevent exposure to claims for damages that would otherwise be in excess of their policy limits and the significant legal costs and interest associated with motor vehicle accident cases.
Andrew Keesmaat
Civil Litigation
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