By Sriram Rangan – Licensed Paralegal
We like to think that over the millennia, we human beings have effectively learned to use more of our brain power to keep us from getting into trouble. Most of us know that we don’t have all the answers and behave accordingly, but there are times when we have totally failed to appreciate our own ignorance. This kind of misstep, particularly as regards the law, can be as costly and as dangerous as performing your own appendectomy.
Some time ago in Ontario Superior Court of Justice, Small Claims Court, a woman brought before the court a claim that she had slipped and fallen in a retail store and sustained approximately $25,000 in medical and other costs as a result. (Court File No. 1827/11 (Kitchener.) In the case we cite, the woman asks for the court to set aside the clerk’s dismissal of the action because it was not timely filed.
In reading the court documents, we learn that:
- The plaintiff did not bring the claim to court for 2.5 years, when it is usual for Small Claims Court to conclude such cases in about 12 months.
- The plaintiff cannot state precisely when they slip and fall took place\
- The plaintiff’s handwritten claim fails to disclose a reasonable cause of action, which is necessary.
- The plaintiff did not, therefore, plead a reasonable cause of action.
- The plaintiff does not, as is required by law, demonstrate that the retail store in which the slip and fall took place did not take reasonable precautions to preclude the plaintiff from slipping on a patch of oil that was spilled on the floor. The store’s liability remains in question.
- The plaintiff represented herself. According to the court documents, the court states the following: “The plaintiff complains that the settlement conference judge ordered her to retain counsel and she was not then and is not now in a position to do so. As is seen from a plain reading of her endorsement, the settlement conference judge made no such order. Indeed the court has no jurisdiction to make such an order. It is obvious that any such oral comment was simply a recommendation, given the legal parameters of an occupiers’ liability case may be more than a self-represented layperson can competently address. The fact is that the plaintiff has represented herself for all but about 3 months of the 2.5 year life of this proceeding and she has only herself to blame if in the result she has been poorly represented.”
It is no surprise that the court, in this case, was not persuaded to set aside the clerk’s dismissal order. Not only was the plaintiff’s motion dismissed, the court awarded damages to the defendant for legal fees and travel expenses amounting to $200.00.
Our justice system seeks to be ‘user friendly,’ but in cases such as these, when a plaintiff is clearly advised by the court (once by the clerk and once during a settlement conference,) that’s the case she seeks to bring before the court is complicated, one wonders what this woman was thinking. (The court did offer an idea about the plaintiff’s misunderstanding of the law: “… (it) became apparent from her submissions, the plaintiff appears to believe that she need only prove a loss and a judgment in her favor must then result. That may explain why her claim fails to make any allegations of negligence or particulars of negligence and therefore fails to disclose a reasonable cause of action.”
It is said that a lawyer who represents himself has a fool for a client. Perhaps the same can be said for a lay-person who attempts to bring a complicated liability case without the support of even the most basic of facts…the time and date of the slip and fall would have been helpful.
If you feel you are competent to represent yourself, at least do yourself the favor of consulting with legal counsel before you go to court. For a modest fee, you will at least gain a modicum of understanding about the many facets of litigation.
Call Vagans Legal Services first.