SMALL CLAIMS COURT: NEGLIGENCE
Negligence is the failure to take reasonable care to prevent foreseeable harm to others. Negligence is mostly applied in tort cases to achieve monetary compensation (damages) for physical and mental injuries that are not connected with accidents.
“Negligence” is not the same as “carelessness”, because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. They could also be aware of the issues, yet for any reason choose to put the issue aside.
Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for negligence.
Negligence cases have, so called, “elements”. If a plaintiff fails to prove any one element of their claim, the entire negligence claim will be lost. For example, suppose that a particular negligence case has 5 elements. Each element must be proven. If the plaintiff proves only 4 of the 5 elements, the plaintiff has not succeeded in making out their claim. The elements that must be established in every negligence case are:
- duty of care
- breach of duty
Duty of Care: A duty of care is a legal obligation set on an individual requiring that they confirm to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence.
Breach of Duty is failure to satisfy ethical, legal, or moral obligations, especially where someone has a corresponding right to demand the satisfaction. Once it is established that the defendant owed a duty to the plaintiff, the matter of whether or not that duty was breached must be settled. The defendant is in breach of duty towards the claimant if their conduct fell short of the standard expected under the circumstances. Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property.
Factual Causation (Direct Cause): Causation is the “causal relationship between conduct and result”. Causation provides a means of connecting conduct with a resulting effect. Causation is only applicable where a result has been achieved. It must be proven that the particular acts or omissions were the cause of the loss or damage sustained. Although it sounds simple, the causation between one’s breach of duty and the harm that results to another is very complicated.
Damages: The damage may be physical, purely economic or both physical and economic (for example, loss of earnings following a personal injury). Damages place a monetary value on the harm done. Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim. Damages are compensatory in nature. Compensatory damages address plaintiff losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering).
The law considers a variety of factors in determining whether a person has acted as the hypothetical reasonable person would have acted in a similar situation. These factors include the knowledge, experience, and perception of the person, the activity the person is engaging in, the physical characteristics of the person, and the circumstances surrounding the person’s actions.
Proof of Negligence
In a negligence case, the plaintiff has the burden of proving that the defendant did not act as a reasonable person would have acted under the circumstances. A plaintiff has a variety of means of proving that a defendant did not act as the hypothetical reasonable person would have acted. The plaintiff can show that the defendant violated a statute designed to protect against the type of injury that occurred to the plaintiff. Also, a plaintiff might introduce expert witnesses, evidence of a customary practice, or circumstantial evidence.
Defences to Negligence Liability
Even if a plaintiff has established that the defendant owed a duty to the plaintiff, breached that duty, and caused the defendant’s damages, the defendant can still raise defence that reduces or eliminates their liability. These defenses include:
- Contributory Negligence – Very often, more than one person has acted negligently to create damages.
- Comparative Negligence – Under comparative negligence, a plaintiff’s negligence is not a complete bar to their recovery. Instead the plaintiff’s damages are reduced by whatever percentage their own fault contributed to the damages. This requires the judge to determine, by percentage, the fault of the plaintiff and defendant in causing the plaintiff’s damages.
- Assumption of Risk – Under the assumption of risk defence, a defendant can avoid liability for their negligence by establishing that the plaintiff voluntarily consented to encounter a known danger created by the defendant’s negligence. Under express assumption of risk, persons agree in advance that one person consents to assume the risk of the other’s negligence.
Negligence Proceedings in Small Claims Court
You might want to file a claim for Negligence matters in small claims court if the damages you will request are not more than $25,000. The number of steps in a Small Claims Court proceedings varies from case to case.
Time Limits: There may be a time limit on how long you can wait before making a claim in Small Claims Court, which is set out in the Limitations Act. Under the law, the time you have to sue may run out. The deadlines vary depending on the circumstances of the case, and the type of case or claim. Check the time limits for your type of case. If you aren’t sure about whether you are still in time to make a claim, talk to CP Paralegal Services.
The following steps will have to be taken for your Negligence case in Small Claims Court:
- Completing the Plaintiff’s Claim form: you will be required to write in the plaintiff’s claim form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
- Deciding which Small Claims Court office to go to
- Preparing all documents and evidences that can support your case
- Filing the claim
- Paying Small Claims Court fees
- Serving the Plaintiff’s Claim after you have filed the claim with the court: you must prove that the defendant was properly served with the claim. You do this by filing an Affidavit of Service form.
If you have filed a claim and the defendant has not filed a Defence within 20 days, you can ask the court clerk to note the defendant in default. You do this by filing a Request to Clerk form. When a defendant has been noted in default you can ask the court to order them to pay money to you. This can be done by:
- Asking the court clerk to sign default judgment for a specified sum of money for that you must fill out and file a Default Judgment form; or
- Asking a judge to order default judgment. To do this, you file a Notice of Motion and Supporting Affidavit form. Explain the facts supporting your motion.
If it is a defended small court procedure, both parties should go for a settlement conference – a meeting with the parties and a judge to try to find an answer to the case that all parties can agree to. It must be held no later than 90 days after the first Defence is filed. There is a special rule for claims that are less than $2,500. The parties can agree to have a judge decide the case at the settlement conference. To agree to this, the parties must fill out a Consent form. The judge would decide the case at the settlement conference only if the parties could not reach a settlement. If the judge decides the case at the settlement conference, the case ends and there is no trial. At the trial each party tells their side of the story and the judge makes a decision.
What You Need to Consider BEFORE making Negligence claim in Small Claims Court
- Ask yourself if a lawsuit that you are going to start will be worth it.
- You will need the correct legal name of the person or business and a current residential or business address.
- Information you need to have to support your Small Claims Court case: You will have to prove your case. Consider what witnesses and/or documents you have to support you: any written evidence, documents, photographs and other that you intend to use to support your claim must be attached to the Plaintiff’s Claim form.
- Time you have to spend: Can you take days off at work to file your claim, deliver documents, and attend in court for a trial? Are you willing to spend hours and hours for: 1) researching all guides on filing your claim; 2) researching all applicable Small Claims Court procedures and steps; 3) visiting Law Help Ontario at Small Claims Court – Pro Bono Law Ontario Duty Counsel are free lawyers that offer limited services to the public at the Toronto Small Claims Court; or 4) reading legislation on-line, for example the Limitations Act?
- Consider other options to resolve the issue: To keep your costs low, you might want to try to reach an agreement out of court. This is called settlement. You may consider mediation, which is a less formal method of resolving a dispute through a neutral third party. Mediation can be less time-consuming, more flexible, and less expensive than proceeding in court. It can also help you find your own solution to the dispute and preserve your relationship with the person/business. CP Paralegal Services is always ready to provide you with mediation services
- Consider having help from CP Paralegal Services: keep in mind, court staff cannot provide you with legal advice or help you to complete all necessary forms. Do not relay on information from relatives and friends, unless they are lawyers or paralegals.
How CPsolutions Can Help You with Negligence Case in Small Claims Court
The list of reasons to make a claim for Negligence in Small Claims Court can be endless. Although, you do not need a lawyer or paralegal when you go to Small Claims Court, to have a knowledgeable and experienced party to defend your case is a good idea. We think that the information above that we have gathered especially for you, has assured you that dealing with Small Claims Court claim is complicated and often is overwhelming even for professionals.
There are 5 reasons why you may consider asking CPsolutions for assistance:
- At CPsolutions, we have experience and knowledge; we know how to deal with your Negligence case in Small Claims Court.
- If you hire CP Paralegal Servicess to represent you in Small Claims Court for your Negligence case, we’ll go to the court office as many times as it necessary, we’ll come to the trial instead of you, and you will not be involved in a stressful process.
- You will not have to ask for a day off at work for filing and serving documents or attend the trial.
- CPsolutions will develop the best possible strategy of your defence.
- We make sure that all evidences are well-organized for your Negligence case and all time limits are considered.
Do not make a mistake! Save your time, money and nerves!
Let CPsolutions work while you are doing yours!
Do not forget that the other party is able to respond to your claim and may give evidence that will affect the judge’s view of your Negligence case. The particular details and proceedings for a Negligence are very technical, tricky and complicated and, more likely, you will need professional assistance.