Entrepreneurship & Small Business

Guy fell on neighbors property and is sueing me

  • Last Updated:
  • Nov 10th, 2018 11:29 am
Penalty Box
Apr 26, 2017
159 posts
24 upvotes
mcewen wrote:
Dec 23rd, 2017 6:38 pm
First if all, most claims that are filed are definitely NOT filed in small claims court. The maximum allowable SCC claim is 25k. Personal injury lawyers wouldn't make enough to survive if their business is all through SCC,

Secondly, there are rules which govern how long the defendant has to file a counterclaim (or, as you say, counter sue).

Pursuant to the Rules of Civil Procedure:
Section 27.01 (1) a Defendant may assert, by way of a counterclaim in the main action, any right or claim against the plaintiff including a claim for contribution or indemnity under the Negligence Act in respect of another party’s claim against the defendant.
S 27.02 A counterclaim shall be included in the same document as the statement of defence and the document shall be entitled a statement of defence and counterclaim.

27.04 (1) Where a counterclaim is only against the plaintiff, or only against the plaintiff and another person who is already a party to the main action, the statement of defence and counterclaim shall be delivered within the time prescribed by rule 18.01 for the delivery of the statement of defence in the main action, or at any time before the defendant is noted in default.

18.01 - Except as provided in rule 18.02 or subrule 19.01 (5) or 27.04 (2), a statement if defence shall be delivered:
a) within twenty days after service of the statement of claim,
b) within forty days after service of the statement of claim, where the defendant is serviced elsewhere in Canada or in the USA, or
c) within sixty days after service of the statement of claim, where the defendant is served anywhere else.

18.02 (1) Notice of Intent to Defend. A defendant who is served with a statement of claim and intends to defend the action may deliver a notice of intent to defend within the time prescribed for delivery of a statement of defence.

18.02 (2) A defendant who delivers a notice of intent to defend within the prescribed time is entitled to ten days, in addition to the time prescribed by rule 18.01, within which to deliver a statement of defence.

19.01 (5) - A defendant may deliver a statement of defence at any time before being noted in default under this rule.

Oh.. and here is the biggie....( writing it a second time.. in hopes it will sink in this time.....)
27.04 (1) Where a counterclaim is only against the plaintiff, or only against the plaintiff and another person who is already a party to the main action, the statement of defence and counterclaim shall be delivered within the time prescribed by rule 18.01 for the delivery of the statement of defence in the main action, or at any time before the defendant is noted in default.

Thank you. Now please stop posting stuff on here that isn't true. You are the one confusing people. Kid.

Merry Christmas.
lmfao why are you still posting stuff about superior court, or sorry, "regular court" as you call it? we are talking about scc here not superior, oh sorry, "regular court".
stop posting rules from "regular court" kid.

poor kid probably felt so giddy and happy getting one of his law clerk buddies to post that for him lmao this kid is hilarious. thats the last reply you get from me kid now go open your christmas presents.
_____________

OP -- as to your idea of suing for "melacious prosection", have you asked yourself how expensive it will be to bring a defendant's claim against the other party? have u considered what you'd do if they failed a motion against you? what about costs? lawyers are very expensive. i've seen scc judges award $800 on motions like its nothing
Deal Addict
User avatar
Aug 15, 2015
1122 posts
148 upvotes
Markham, ON
^ you have to think about collection after too.

After getting winning case, may be both of you will be broke and no one can pay. TO sue or not to sue that is not the question.
Penalty Box
Apr 26, 2017
159 posts
24 upvotes
Poppwl wrote:
Dec 25th, 2017 3:57 pm
^ you have to think about collection after too.

After getting winning case, may be both of you will be broke and no one can pay. TO sue or not to sue that is not the question.
this is also a valid point
judgement doesnt really mean anything if the guys got nothing. garnishing wages remember u need to know where he works where he banks etc
Deal Addict
User avatar
Aug 15, 2015
1122 posts
148 upvotes
Markham, ON
CNeufeld wrote:
Dec 5th, 2017 11:50 am
Ummm... Small claims court can be up to 25k. For most people, that's "worth their time" to defend (if they don't defend, it would be an automatic judgment against them, enforceable with a court order).

C
I guess I should've said it is not worth a lawyer's time. Lawyers are expensive. You know.
[OP]
Newbie
Mar 5, 2017
28 posts
64 upvotes
OP here again.

O may god this wont go away.

I am glad I started this thread because it actually helps me remember the details.

On wednesday may 23 2018 i recieved a text from someone identifing themselves as "Matt". Matt said he had some documents to give to me. "legal documents" He said the law firm needs an updated address for me, and that he was trying to keep the costs down so he was hoping I would co-operate with him. I immediately called him and asked him what it was about. He said it was about a car accident. WTF? I told him I had no idea what he was talking about. I dont have any clue about any car accident and if some random person is going to text me, not even call me, and ask for my address, FU. I asked him what the name of the law firm was. I wrote it down. I have been busy with work so I havent had a chance to call the law firm yet.

SO if it is the same blood suckers, and they are ready to file suit against me, I may have to deal with them. I still havent heard from any lawyer about this yet, only one clerck, and this process server a few days ago. I cant believe a lawyer would continue this if I were to show them the evidence I have

What I have learned since is that this falls under the Occupiers liability act. I have been doing some reading and I saw this in a law blog

an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Unfortunately, although the language of section 3(1) is fairly straightforward, it has led to some popular misconceptions. In this post, we address two:

The misconception that occupiers are strictly liable for any slip and fall on their premises. The OLA requires reasonable care, not perfect care. Therefore, to prevail on an OLA claim, a plaintiff must prove that the defendant was negligent.


So basically what this says is that I am not expected to keep the lot perfectly clear of snow and ice, but make a reasonable attempt to do so. So I have other evidence that I have not mentioned. I hire out snowplowing to a large commercial plowing company. They know all about this kind of thing. When they come and plow and salt, they log the exact minute that they were there, and what they did. And they keep those logs. So after i was informed of the fall, I talked to my plow company and they sent me the logs for the day. I wont go into detail, but I can see from the logs that they are aware of this aspect of having to prove negligence, and they have very detailed logs. SO if this goes to trial, and I cant convince the judge, or a jury, that this happened on the neighbours property, they have no chance of finding me negligent. Believe me, I worry about this slip and fall problem. Even though I hire out the snow plowing to a large reputable company, I still drop by when I have time and touch up things a bit, spread a bit more salt if needed. All winter there is salt and a shovel available to the tenannts if they see something wrong. Im going to go and take pictures of the salt and shovel that is readily accessable all winter.

Im going to gather all my evidence, I still have the video, and take some pictures. I will write a letter explaining all the evidence I have, and go to the lawyers office to collect what ever they want to serve on me.


I do feel that not telling them where I live has been somewhat successful, despite what people have commented. They have said they can do a property search and find me , but it seems like they dont want to spend any effort on this. From the beginning, they would call and just ask for my insurance information. They dont want to put ANY effort into it. Why should I make it easy on them. Im still not avoiding service. They have my phone number. No one has called me and said "Im calling about the slip and fall accident that took place at **** on March 24th, 2016. We need to serve you court documents. The only thing I have gotten is some lame ass text from "Matt" saying something about a car accident. Step up to the plate guys and tell me the truth

By the way, this will for sure be Superior Court, not small claims court
[OP]
Newbie
Mar 5, 2017
28 posts
64 upvotes
Update
It is the same law firm trying to sue me.

I have sent them a registered letter outlining all the evidence I have and threatening to sue them back for malicious prosecution if they continue.
Penalty Box
Dec 27, 2013
7599 posts
3434 upvotes
Toronto
sue them anyway for the time they've wasted. this is crazy.
Jr. Member
Feb 22, 2007
190 posts
131 upvotes
New Westminster
heynow9991 wrote:
May 26th, 2018 2:00 pm
On wednesday may 23 2018 i recieved a text from someone identifing themselves as "Matt". Matt said he had some documents to give to me. "legal documents" He said the law firm needs an updated address for me, and that he was trying to keep the costs down so he was hoping I would co-operate with him. I immediately called him and asked him what it was about. He said it was about a car accident. WTF? I told him I had no idea what he was talking about. I dont have any clue about any car accident and if some random person is going to text me, not even call me, and ask for my address, FU. I asked him what the name of the law firm was. I wrote it down. I have been busy with work so I havent had a chance to call the law firm yet.

...

So basically what this says is that I am not expected to keep the lot perfectly clear of snow and ice, but make a reasonable attempt to do so.

...

Im going to gather all my evidence, I still have the video, and take some pictures. I will write a letter explaining all the evidence I have, and go to the lawyers office to collect what ever they want to serve on me.


I do feel that not telling them where I live has been somewhat successful, despite what people have commented. They have said they can do a property search and find me , but it seems like they dont want to spend any effort on this. From the beginning, they would call and just ask for my insurance information. They dont want to put ANY effort into it. Why should I make it easy on them. Im still not avoiding service. They have my phone number. No one has called me and said "Im calling about the slip and fall accident that took place at **** on March 24th, 2016. We need to serve you court documents. The only thing I have gotten is some lame ass text from "Matt" saying something about a car accident. Step up to the plate guys and tell me the truth
1. Sounds to me like a process server was trying to contact you to serve the documents and messed up by referring to a car accident rather than a slip and fall incident. Not the biggest mistake in the world, but definitely a stupid one.

2. Getting cooperation from the defendant for service (in this case, you) just makes things cheaper and less of a hassle in the end. The typical scenario will end with the liable defendant's (if there is one) insurer paying out the extra cost incurred to serve the defendant if applicable. Things like doing property searches, investigations, etc. take time and resources, which incur extra costs. There's next to zero chance "Matt" was trying to trick you or anything. Almost certainly just a silly mistake that makes them look stupid.
heynow9991 wrote:
Jun 7th, 2018 8:45 am
Update
It is the same law firm trying to sue me.

I have sent them a registered letter outlining all the evidence I have and threatening to sue them back for malicious prosecution if they continue.
Giving them the evidence is fine. Threatening to sue them back will just make them roll their eyes. Nothing in what has been done or said so far is malicious at all.
[OP]
Newbie
Mar 5, 2017
28 posts
64 upvotes
"Nothing in what has been done or said so far is malicious at all."

I appreciate any input. I may not have given all the backstory. Here is what I plan to argue. The plaintiff was immediately told by the staff that where he fell was not on my property. The plaintiff contacted two lawyers, both of whom gave up when I told them about the evidence I have. This third lawyer would not call me to talk about the evidence.

"intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause"

I also believe he is sueing me because he knows he fell in front of a vacant store and he was advised that he would have a hard time sueing the owner as he would have been trespassing.

I believe I will be able to meet all of the conditions of the Nelles test

(1) There are 4 necessary elements which must be proved in an action of malicious prosecution:

a) Proceedings must have been initiated by the defendant

b) Proceedings must have terminated in favour of the plaintiff

c) Absence of reasonable and probable cause

d) Malice, or a primary purpose other than that of carrying the law into effect

I found this case which I believe is similar to mine

https://www.canlii.org/en/on/onsc/doc/2 ... c4060.html
Deal Fanatic
User avatar
Mar 23, 2008
7308 posts
4215 upvotes
Edmonton
heynow9991 wrote:
Jun 12th, 2018 10:25 am
"Nothing in what has been done or said so far is malicious at all."

I appreciate any input. I may not have given all the backstory. Here is what I plan to argue. The plaintiff was immediately told by the staff that where he fell was not on my property. The plaintiff contacted two lawyers, both of whom gave up when I told them about the evidence I have. This third lawyer would not call me to talk about the evidence.

"intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause"

I also believe he is sueing me because he knows he fell in front of a vacant store and he was advised that he would have a hard time sueing the owner as he would have been trespassing.

I believe I will be able to meet all of the conditions of the Nelles test

(1) There are 4 necessary elements which must be proved in an action of malicious prosecution:

a) Proceedings must have been initiated by the defendant

b) Proceedings must have terminated in favour of the plaintiff

c) Absence of reasonable and probable cause

d) Malice, or a primary purpose other than that of carrying the law into effect

I found this case which I believe is similar to mine

https://www.canlii.org/en/on/onsc/doc/2 ... c4060.html
If nothing else, I think you'll fail on the malicious intent... The 4th element. Plus they need to actually take you to court, and for them to lose.

C
[OP]
Newbie
Mar 5, 2017
28 posts
64 upvotes
Ok, so I am looking for ideas on how to argue this to prove that he had malicious intent.

From Hill vs the church of Scientology

"Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth."

The plaintiff in this case spoke dishonestly, as I said earlier, he was immediately told that he wasn't on my property. He had been told very clearly by the staff
Deal Fanatic
User avatar
Mar 23, 2008
7308 posts
4215 upvotes
Edmonton
heynow9991 wrote:
Jun 12th, 2018 12:18 pm
Ok, so I am looking for ideas on how to argue this to prove that he had malicious intent.

From Hill vs the church of Scientology

"Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth."

The plaintiff in this case spoke dishonestly, as I said earlier, he was immediately told that he wasn't on my property. He had been told very clearly by the staff
That case was, I believe, a libel/defamation case. Not a "malicious prosecution" case. I'm not a lawyer by any means, but perhaps the requirements of proof of malice are different?

I still think you'll have trouble proving malice. You say "A", the lawyer's client says "B", and then it becomes the lawyer's job to follow through with the client's wishes to prove "B". It may be that you think it's a clear case, and it may even be that a judge or JP agrees with you. They may even award you damages following a court case. But none of that will necessarily stop them from pursuing a case now. And at this point, your costs are vague and low, so it would be hard to recover anything from them with regards to a "malicious prosecution" case.

Miazga and Nelles seem to be some defining "malicious prosecution" cases, but they involve suing the prosecution (police, AG's, etc). The case you mentioned before (Drainville) shows "clear" malice, which your case doesn't necessarily show. And even then, it's very possible that the plaintiff would have lost his case if the defendant would have shown up to defend himself, as he could have argued why it wasn't "malicious". If the person in your case was a competitor of yours or someone with a grudge against you, then fine... You might have a case. As it is, I suspect you'll get costs awarded to you IF it goes to trial.

C
Jr. Member
Feb 22, 2007
190 posts
131 upvotes
New Westminster
This whole thread is a tire fire to begin with. I've suggested before that OP contact his insurer to let them take care of it, but instead he chooses to fumble around playing lawyer and threatening lawsuits. Now if he fumbles his way to a judgment against him, his insurer might not even indemnify him because he didn't inform them of the action which he SHOULD have, or give them the opportunity to competently defend, as he should have.
Member
Jan 12, 2017
281 posts
85 upvotes
I hope OP is successful and although I think most non-product shameless crowd-begging campaigns are stupid, this is one I'd throw some money at. Blatant unethical behaviour of this degree, especially when one has no excuse for 'not knowing' is as bad as the blood sucking Ragu episode.

Someone has to resist the douchebag of the world.
[OP]
Newbie
Mar 5, 2017
28 posts
64 upvotes
OP here. Since someone posted on the thread I thought I would update it. I still haven't been served. I am not avoiding service, but I'm not making it easy for them. They actually wanted me to go down to the process servers office and pick up the documents! I said I would go to the lawyer's office and pick them up, but I was told that was not possible? Did these geniuses ever think, "we could serve him in the parking lot".

They did serve my tenant, and I have talked to thier lawyer. They were served just a few days before the two year limit ran out. The lawyer says I am not named in the suit, only "John Doe, property manager" is named in my place. This may mean that they can't sue me. We will see how it all fleshes out.
I will share all my evidence with the tenants lawyer. The next step is they will present the evidence to the court and and ask that the suit be dropped.

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