Glossary, Page 3
All of the words and their respective definitions hereunder may have other or broader meanings than explained below. The explanations that follow are all defined within the context of the Ontario Small Claims Court and may have different meanings or applications in other courts or tribunals.
A judgment is a final Order that a court makes in order to discern the rights, obligations and claims of the parties in an action following the commencement of a lawsuit.
I write this short article regarding jurisdiction only as it relates to which court you will commence a small claims court action in.
The small claims court rules provide that a Plaintiff (the party commencing the action) must bring the action in the small claims court where either the Defendant, (the person being sued), resides or carries on business or where the cause of action arose. (There is a third provision but it is meant for those in remote areas of the province and will not have application in the more populated areas in which I practice.) You will notice that the Plaintiff cannot bring an action in the jurisdiction where he or she resides or carries on business. If it turns out that the jurisdiction in which the cause of action occurred is also the jurisdiction in which the Plaintiff resides or carries on business, then the action may be brought in that jurisdiction. But that determination will be based on where the cause of action arose and not where the Plaintiff resides or carries on business.
A motion is a proceeding whereby one of the parties to a court action seeks a determination respecting a contested portion of the action for the purpose of receiving the courts direction in the form of an Order.
Negligence is a wide and complex body of law that covers a very large area. In very simplified terms, it is something that someone has done that that person shouldn't have done, or something that someone hasn't done that that person should have done, that has caused another person a monetary or other kind of loss. It is the failure to have exercised a degree of care that, the law requires be exercised in the circumstances for the protection of other persons or the protection of the interests of other persons that may be negatively affected by the lack of such care.
A promissory note is a negotiable instrument and can be sued upon without any other supporting documentation. For that reason, it can be more beneficial than a contract from the perspective of collections. Other than a limitation defence, there is no defence to a valid promissory note. As such, it is a very powerful document.
If you are owed money, having a debtor sign a promissory note can be very helpful to you, the creditor, if you have to sue the debtor to recover your money.
However, a promissory note must be prepared properly so that it meets the necessary requirements to be a promissory note and, therefore, a negotiable instrument. Not just any written promise to pay money meets the criteria required to be a promissory note even if it is so entitled. Accordingly, you should have a promissory note prepared by a qualified legal professional so that your promissory note will be valid and effective.
For the purpose of this article, you have just been served with a Plaintiff’s Claim and you have filed a defence for all or part of the Claim that was issued against you. You owe the money, or part of it, but you don’t have all the funds available to pay the debt in full. You now have a window of opportunity to try to negotiate a settlement and arrange a payment plan. You will want to put the negotiated settlement and payment plan in writing in the form of Terms of Settlement’ so that the matter can be dealt with efficiently and effectively.
For the purpose of this article, you have just been served with a Plaintiff’s Claim, the Claim has merit, and you do not have a valid defence to the Claim that has been issued against you. You owe the money but you don’t have all the funds available to pay the debt in full. You now have a narrow window of opportunity to try to negotiate a settlement and arrange a payment plan. You will want to put the negotiated settlement and payment plan in writing and have it signed by all parties before the expiration of the 20 day period for filing a defence so that the other side will not ‘note you in default’ and then obtain a judgment against you. If the parties cannot agree on a settlement, you can put a proposed payment plan into the defence itself.