Here’s what happened…
In August 2011, a loan was made by either Jane * or Jane’s mom, Vicky* to Sam* in the sum of $9,000.
In July 2013, Jane issued a claim against Sam for failing to repay the $9,000.
In January 2014, the Settlement Conference was convened.
What transpired at the Settlement Conference is just unbelievable. The Settlement Conference Deputy Judge found that the real Plaintiff ought to have been Vicky and not Jane. So what did this DJ do? Guess which one of the below 3 options:
a) She Ordered that the Plaintiff’s Claim be amended to reflect Vicky as the Plaintiff and not Jane;
b) She told Jane to get legal advice and ordered a second Settlement Conference; or
c) she dismissed the Plaintiff’s Claim.
If you guessed (c) you are right!
Can you believe it?! First of all, how could this DJ possibly have had all the necessary facts at a simple settlement conference to make a determination as to who was the genuine Plaintiff?! As it happens, based on what Jane explained to me, Jane was very justified in naming herself as Plaintiff. But more importantly, how can a DJ be so harsh, particularly on a self-represented party, by dismissing the Plaintiff’s Claim? And why was it necessary? It is not as if the Defendant was named improperly. We’re talking about the Plaintiff! There is no reason in the world for the DJ to have made poor Jane start a fresh action with her mother, Vicky, as the Plaintiff.
But there’s more…
The DJ informed Jane that she could simply bring a motion to have Vicky made a Plaintiff against Same in a fresh action. Huh? So, Jane went to duty counsel, and filed her motion the very next day. And of course, predictably, the next DJ dismissed the motion and told Jane that she cannot bring such a motion and would have to bring a fresh claim on behalf of Vicky. And to add insult to injury, the DJ ordered $100 costs against Jane!
But we’re still not done. Here’s the real kicker! Get a load of this…
So Jane goes and files a new claim with her mom Vicky as the Plaintiff. But here’s the problem if you have not figured it out by now. I will give you a hint. The loan was in 2011 and the claim was issued in 2014. The claim was statute-barred! Sure enough, Jane and Vicky get to the trial and without even having a hearing on the merits, the DJ dismisses the claim based on the lapsed limitation period, on a motion brought by Sam on the trial date. And to add further insult to injury, Jane was ordered to pay costs! Oh, and not costs of $100 even though it was a motion. Oh no, she was ordered to pay costs of five hundred dollars!
This is a complete travesty of justice. What we can take away from this is the following:
1 – I am a believer in deputy judges making tough decisions at the settlement conference. But the fact is, most of the time they are unwilling to. In this case, the DJ did, but she shouldn’t have! There has to be a more consistent message on what deputy judges can do at Settlement Conference. If they are going to make such harsh decisions, then do it all the time. Don’t be inconsistent.
2 – In the very least the DJ should have allowed for Jane to get legal advice. True, Jane could have sought advice before suing, but Small Claims Court is a people’s court, and Jane had no idea her claim would be dismissed for this reason. She should have been given an opportunity to get advice, and any lawyer or paralegal worth his/her salt would have explained to the DJ that there was no reason to dismiss the claim when it could be amended. (They would also hopefully be aware of the limitation period problem of bringing a new claim for Vicky.)
3 – The Deputy Judges cannot overstep their authority by offering legal advice. Here, the DJ informed Jane that she could bring a motion to add her mom. The DJ was wrong and the consequence of her mistake was grave for Jane.
4 – As I said before, the Small Claims Court, for reasons beyond me, continues to be a haven for Defendants. While there are many innocent Defendants, and I do defence work as well of course, the fact is that many cheating Defendants have been protected over and over again by judges bending over backwards to put obstacles before the Plaintiff. I have not noticed a similar effort to put obstacles before cheating Defendants. Quite the contrary.
A travesty of justice.
*Although this is public record and I do have consent to report this story, I have changed all names out of caution.