Grounds to Sue in Small Claims Court

BROKEN CONTRACTS

1.            Goods sold or services provided but not paid for

D. Vermeersch Farms Ltd. v. McDonald, 2003 CanLII 11303 (ON SC)

The plaintiff … carries on a grain and feed business … and sold … feed to the defendant. The defendant is a farmer …

The plaintiff alleges the parties had a zero balance at February 28, 2001 and the account remained current until the latter part of June of that year and by September began running out of control with an outstanding balance of almost $33,000. The final sale was on November 30, 2001 when the balance outstanding was $26,013.45.

The Court accepts … that sales and purchases are made as follows: the customer contacts the supplier, the supplier loads, weighs and delivers. The weigh ticket is in triplicate with one copy left at the customer’s farm at the time of delivery, one copy is sent with the invoice and one copy is retained by the supplier. No delivery signature is obtained from the customer because the farmer making the purchase is seldom available to take delivery. The industry operates on trust.

The Court finds the defendant is indebted to the plaintiff for purchases …

2.            Goods paid for but not delivered

Lenet (Total Business Solutions) v. Dorfin Distribution Inc., 2008 CanLII 6423 (ON SC)

The claim arose as a result of the defendant retaining monies in the amount of $6,454.24, which had been prepaid to the defendant by the plaintiff for a replacement order of defective envelopes. … The defendant was unable to fulfil the order within the time period specified by the agreement and as a result, the plaintiff pursued alternate means of purchasing the envelopes in order to meet its obligation to its clients. The plaintiff requested the return of the prepaid amount, but the defendant refused to repay the plaintiff the prepayment.

… the plaintiff submitted an offer to settle … This offer was not accepted … the defendant withdrew its previous offer to settle, taking the position that the matter should be transferred to the Small Claims Court.

3.            Wrongful dismissals from employment

Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831 (CanLII)

The respondent employee had been in the appellant employer’s employ for some seven years … The employment relationship was not governed by a written contract. He was 48 years old at the time of his termination. He was laid off twice. He was laid off for the first time on April 4, 2009, and then was recalled on June 9, 2009. He was laid off again on July 28, 2009. On January 22, 2010, the cumulative duration of the layoffs reached the statutory maximum of 35 weeks within a 52-week period. Until January 22, 2010, the employee considered that he remained on the employer’s payroll subject to recall.

Upon the length of this layoff reaching 35 weeks, the employee brought a claim for common law damages for wrongful dismissal in the Small Claims Court rather than claiming termination pay under s. 54 of the ESA. Holub Deputy J. awarded him $9,900 in damages reflecting a notice period of six months together with interest and costs of $2,060. The employer’s appeal to the Divisional Court was dismissed …

… even if one accepts the premise that an individual’s employment status continues at common law after a statutory termination under S. 56(1) of the ESA, the employee could claim constructive dismissal at common law whenever a layoff exceeds 35 weeks in 52.

RETURN OF PROPERTY

1.            Repossession of car or other property

Easy Home v. Rogalski, 2004 CanLII 25743 (ON SC)

These reasons deal with the … return of personal property in the Small Claims Court.

… the Plaintiff has applied to the court … for the return of furniture rented to the Defendants.

The Small Claims Court has jurisdiction to grant orders for the return of goods improperly held. Under s. 23(1)(b) of the Small Claims Court Act the court has jurisdiction in any action for the recovery of possession of personal property where the value of the property does not exceed the prescribed amount.

… the Plaintiff must first commence an action by issuing a claim for the return of the goods in question. The Plaintiff must then obtain a judgment … for the return of the goods. … when that judgment … is not complied with that the Plaintiff may … obtain a Writ of Delivery for the forcible return of the goods.

2.            Return of property loaned to another person

See Feron v. Sidwell, 2003 CanLII 2016 (ON SC)

PERSONAL INJURIES

1.            Slip and fall on city sidewalk

Bechaalani v. Hostar Realty Ltd., 2004 CanLII 24997 (ON SCDC)

Bechaalani, as a deliveryman … was delivering food to the tenant.

The building … is part of a complex of apartment buildings …

… Bechaalani parked his car … He walked on a path in the field to the side door … The path was visible … previous pedestrians had used it, leaving their footprints in the snow …

The path … was not cleared, shoveled, sanded or salted.

Bechaalani slipped and fell … experienced pain in his shoulder blade, middle back and neck. His symptoms were consistent with whiplash and rotator cuff injuries, and included back and neck pain, headaches, loss of sleep, loss of concentration and depression. Although he did not miss any work, he was unable to continue with his regular physical workouts at his gym.

I find that the Defendant was not responsible to maintain the path where the Plaintiff fell. The unpaved path on which the Plaintiff slipped was not intended to be used as an access to the units. The Defendant did not have reason to expect that the path chosen by the Plaintiff would be so used or that such usage would be dangerous.

However, I do not find that the Defendant took all the necessary reasonable care … to see that the premises were safe for visitors to the units. I find that the Defendant failed in his duty to maintain his property …

The Defendant should have the staircase properly lighted to be visible to pedestrians and users of the premises. In failing to maintain proper lighting, he has failed in his duty of care regarding the maintenance of his property.

However, the Plaintiff did not take a marked passageway. He cut across a snow covered path that had been laid out previously by other pedestrians. However, in doing so, he voluntarily assumed some risk for not taking a maintained pathway.

… I find the plaintiff 50% responsible for his slip and fall.

2.            Damage to your reputation

Roskam v. Jacoby-Hawkins, 2010 ONSC 4439 (CanLII)

Mr. Roskam is a supporter of the Libertarian Party of Canada and hopes to one day run as a candidate for the party … Jacoby-Hawkins is the Green Party candidate. They don’t get along. A year ago they were involved in a trial in the Small Claims Court … each accused the other of defamation.

In the Small Claims Court Judgment, Mr. Jakoby-Hawkins was found to have defamed Mr. Roskam … At the same time, Mr. Roskam was found to have defamed Mr. Jacoby-Hawkins ….

Damages of $10,000.00 were awarded against Mr. Roskam …

3.            Damage to your property

Cartmale v. Godick, 2004 CanLII 33116 (ON SC)

… the plaintiffs purchased from the defendant a 100 year old house …

The purchasers allege that a few days or weeks after closing and again in the spring of 2004 the basement flooded … They seek damages … for the cost of excavating and repairing the … west basement wall.

The purchasers allege both patent defect concealed and latent defect not disclosed. … to succeed the purchasers must prove the defect, knowledge by the seller of that defect, duty to disclose, failure to disclose and a causal connection between the defect and a serious adverse effect on the habitability of the house. Otherwise caveat emptor (buyer beware) governs.

When the first flooding occurred near the end of July 2003 the property … was not yet graded or sodded. It probably therefore did not yet have a retaining wall or swale

The owner … did not occupy the new house until September 26, 2003 and when the next torrential rain occurred on or about May 21, 2004 the final grading and the sodding had still not been done, leaving the plaintiffs as vulnerable as before.

The plaintiff … testified that water seemed to flow from “everywhere” and built up on the west side of the subject property. It seems highly unlikely that if this had occurred before the construction … it would not have been tolerated by the municipality or the owners of the subject property.

The action is therefore dismissed.

MONEY OWING

1.            Payment of outstanding accounts

Coffey v. Horizon Utilities Corporation, 2011 ONSC 3894 (CanLII)

The Plaintiff … was a residential customer of the Defendant, the Horizon … Horizon is a licensed distributor of electric power … Ms. Coffey commenced an action in the Small Claims Court to recover some $913.79 from Horizon for the return of security deposits, regulatory charges, debt retirement charges and charges for interest on late payments associated with her Horizon account.

Ms. Coffey has not disputed the amount of her final bill and did not call any evidence to challenge this assertion. I accept the evidence of Mr. Hart that these amounts were in fact applied to Ms. Coffey’s outstanding account. I therefore find that there are no outstanding security deposits due to Ms. Coffey.

Having found that Horizon has already credited the security deposits to Ms. Coffey’s outstanding account and finding no basis upon which Ms. Coffey would be entitled to the return of the other monies she claims, the Plaintiff’s claim is dismissed.

2.            Payment for goods and services

See D. Vermeersch Farms Ltd. v. McDonald, 2003 CanLII 11303 (ON SC)

3.            Loans and promissory notes

Feron v. Sidwell, 2003 CanLII 2016 (ON SC)

The parties are former friends …

During the winter of 2001/2002 the defendants were in continuing financial difficulty … At the request of the defendants the plaintiffs loaned them $15,000 … The plaintiffs claim $4,725, for unpaid principal … The evidence of Monique Feron is that of the $4,725,. $3,900 is for principal not repaid.

… the defendants admit alternatively owing $3,100, and $3,500. At least part of the difference is accounted for by the contention of the defendants that a son of the plaintiffs attended a hockey camp operated by the defendant Jim Sidwell, which camp had a tuition of $400. The defendants claim a reduction of that amount from the principal outstanding. The defendants also contend the plaintiffs are overreaching in their claim for interest on the loan.

In their counterclaim the defendants claim $900, for 18 weeks of housecleaning by Mrs. Sidwell of the plaintiffs’ house … for child care for “babysitting” a son of the plaintiffs … the replacement cost of some personal property … punitive damages for harassment … in the extensive text of the defendants’ claim is an allegation the plaintiffs have in their possession personal property of the defendants valued at more than $25,000. and they ask for an order “to have all of our property returned.” Subject to the $10,000. monetary cap on the jurisdiction of this court section 23 of the Court of Justice Act empowers this court to try an action “for the recovery of possession of personal property.”

… it is not disputed the loan was $15,000 in the form of a cheque …

For these reasons there will be an assessment for the plaintiffs for $3,700 … The Clerk will make that assessment if demanded.

On the defendants’ claim there will be an assessment for the plaintiffs by defendants’ claim for $3,750 … The Clerk will make that assessment if demanded.

4.            Payment for wages or commissions

Jokic v. Larry Sommers Ltd., 1995 CanLII 7285 (ON SC)

The plaintiff … was employed by the Defendant … she earned $470 per week. There was no written employment contract.

… Ms. Jokic was an important and trusted employee … Before February 10, 1993, there were no complaints with her work.

… while the Sommers were away on business in Europe, the Plaintiff had a very traumatic experience.

The evidence of the Sommers was that, after telling them of her situation, the Plaintiff said she could no longer work for the Defendant and requested that they complete a false Record of Employment, stating that she was laid off. When they refused to do so she quit and said so in a loud voice before she left.

Whether or not the Plaintiff said she quit, what must be decided is what effect the Plaintiff’s refusal or inability to work on February 10, 1993 and thereafter had on the employment relationship between the parties.

In the absence of a written contract the court must determine whether what amounts to a claim to entitlement to an indefinite leave of absence, would have been a reasonably implied term of the employment relationship between the parties in all the circumstances. … I do not find that the refusal to work … immediately terminated the contract … I do find that … the Defendant, faced with a situation wherein an important employee claimed to be entitled to be off sick, having no ability to determine how long that employee would be off, knowing only that the employee would likely be off for a considerable period of time, had a right to treat the employment relationship as at an end.

On the issue of wages owed … The Plaintiff requests pay for February 8, 9 and 10. The Defendant states that the Plaintiff was only in the office for a short time of February 8 and 9 and did no work on February 10 …

I find … a reasonably implied term of the contract between the parties that … the Plaintiff would be paid for the full day of February 8 and 9 but not for February 10, since she did not attend for the purpose of working on that day.

The Plaintiff is therefore entitled to judgment for the sum of $188 plus Pre-judgment Interest.

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