February 27, 2009

Low Income Litigants May Avoid Court Filing Fees

Court filing fees can be very expensive. Just filing the documents to start a claim, a Writ of Summons and Statement of Claim, costs $208 at the B.C. Supreme Court. It's another $208 to file a Notice of Trial and a minimum of $312 for each day of the trial. Add to that the filing fees for any motions or applications before the trial and filing fees alone can easily top $1000.

In limited circumstances, the court will give permission for a party not to pay filing fees if they can show that they have little or no income, and that their claim (or defence) is reasonable. In order to get this permission from the court, you need to make an application for indigency status. The Legal Services Society has put together an excellent, step-by-step guide on how to make an indigency status application. The guide is in the context of a family law application, but the steps are the same no matter what your legal issue.

I have two quick points to add to what is contained in the guide.

First, it may be that your court procedure does not require court fees to be paid. Check the list of court fees before you go to the trouble of preparing an indigency status application.

Second, the court will ask a person applying for indigency status detailed questions about their income, job prospects and assets. The hearing takes place in Chambers, a courtroom designated to deal with a number of shorter applications. Chambers courtrooms are often crowded with lawyers, especially in the morning session. If you are concerned about privacy, ask the registry to set down your application for the afternoon Chambers session, when there are generally very few people left in the courtroom.

February 25, 2009

How to Fight a Strata Fine

For tenants or owners facing a fine for violating a strata rule or bylaw, it can feel like the council plays the role of police, judge and executioner. Although the strata council does have a lot of discretion to issue fines, an owner or tenant who feels that a fine is unfair has rights and remedies under the Strata Property Act. Section 135 of the Act states that before a strata council can impose a fine, the following four conditions must be met:
  1. the council must have received a complaint about the bylaw or rule violation;
  2. the council must have given the owner or tenant the details of the complaint, in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant,
  3. if the person is a tenant, the council must have given notice of the complaint to the person's landlord and to the owner.
  4. if the tenant or owner has provided a written explanation of the complaint, or made arguments at a hearing, the strata council must provide the owner or tenant with written notice of its decision to issue the fine.

If the strata council does not follow these procedures in issuing a fine, then arguably it has violated the provisions of the Act, and acted outside its jurisdiction. So what then?

If the strata council has skipped one or more of these steps, or if you believe that the council's final decision is still unfair, section 164 of the Act give the owner or tenant a broad right to apply to the court for help.

Section 164 allows the court to make any order it considers necessary to "to prevent or remedy a significantly unfair action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant". There are two important points about section 164:

  • An owner or tenant does not need to wait until the strata council actually issues the fine, or takes other action. Any threat by the strata council to issue a fine is sufficient to bring a court application. That being said, the court will not be impressed if an owner/tenant runs off to court without first writing to the strata council to explain their side of the story.
  • Second, the court will only intervene if the strata council's action is "significantly unfair". This means that not every unfair action by the council will be addressed by the court - the consequences of the unfair action must be significant. In addition, the filing fees and time required to bring a court action should be considered when deciding whether it would be cheaper and less stressful to simply pay the fine.

Whatever your choice, its good to know that owners and tenants do have procedural fairness rights which will be enforced by the court, if necessary.

February 18, 2009

Simplify Your Trial, Judge Judy Style

Have you ever watched the Peoples' Court or Judge Judy on television and wished you could solve your court case in only an hour?

You may be able to do just that, thanks to a Small Claims Court pilot project underway at the Robson Square and Richmond Small Claims courts. The project requires that all claims under $5000 (with a few exceptions, including personal injury) must be determined using a simplified trial process under Rule 9.1 of the Small Claims Rules.

A simplified trial is a one-hour streamlined trial before a justice of the peace who acts as an adjudicator. The process starts like any other Small Claims action; the claimant files a Notice of Claim and then the defendant files a Reply.

Each party must then file a document called a Trial Statement in Form 33 at the registry at least 14 days before the simplified trial and serve it on each of the other parties at least seven days before the simplified trial. The Trial Statement must include:

  • a statement of facts in the order in which they occurred

  • a calculation of the amount claimed

  • copies of the relevant documents

  • and a list of witnesses with a brief summary of what each witness will say

The benefits of a simplified trial for non-lawyers include the following:

  • the adjudicator does not have to apply the usual rules of evidence and procedure, so you don't have to have any legal knowledge to state your case. No one will be able to yell, "Objection! Hearsay!" like they do on television. (Rule 9.1(20)(a))

  • There is usually no formal examining and cross-examining witnesses (Rule 9.1(20)(b))

  • There aren't any delays caused by documents going back and forth between the parties. Everything is in the Trial Statement, which gives you all the information you need about the other side's case.

  • Since the hearing usually lasts only an hour, the amount of disruption to your work and other obligations is minimal.

  • The process is generally less formal, and therefore less intimidating, than appearing before a judge in an ordinary court case.

If your claim is over $5000, the benefits of the simplified trial may be so great that it may be worth abandoning any amount of your claim which is over the limit just so that you can use the simplified trial process. This is allowed under Rule 5.1(5) - all you have to do is state on your Notice of Claim that you are abandoning any amount of your claim over $5000.

The adjudicator has a lot of discretion about how the hearing will proceed, and he or she will often ask questions of the parties and witnesses in order to get all the information necessary to decide the issue in a short period of time.

Kind of like Judge Judy, only without the finger-pointing.

February 9, 2009

Can you be arrested and charged for possession of marijuana?

The short answer is yes, you can be arrested and charged for possessing marijuana because despite several controversial court decisions, possessing pot remains a criminal offense in Canada under the Controlled Drugs and Substances Act.

The uncertainty about whether pot posession is legal in Canada stems from the fact that court decisions in several provinces have found Canada's marijuana possession law to be unconstitutional for failing to provide adequate exceptions for medical marijuana users.

Here are a couple of the key cases which struck down Canada's marijuana laws: R. v. Parker (2000 Ontario Court of Appeal), Sfetkopoulos v. Canada (2008 Federal Court), R. v. Masse (2003 BC Provincial Court).

Sometimes A law isn't THE law

These cases held that Canada's marijuana laws were unconstitutional, and therefore they were of no force and effect. A declaration that a law "is of no force or effect" means that that law is no longer the law, and since someone can't be convicted of breaking a non-existent law, the accused in those cases were acquitted.

It is now up to Parliament to redraft the law to make it constitutional, and some of this redrafting has been done. In the meantime, the police can arrest and charge you for possessing marijuana and it would be up to the judge to determine whether the revised law you were charged under is constitutional.

While Vancouver has had a reputation of leniency towards pot smokers in recent years, more recent statistics indicate that the VPD is cracking down on possession, "In all, 200 people were charged with simple possession of marijuana in Vancouver in 2006 -- up from 133 a year earlier."

According to Crown prosecutors, people are rarely charged for possession without some other aggravating factors. For instance, if the police suspect someone of trafficking, but can only prove possession, then that lesser charge may be laid. Vancouver still has one of the lowest criminal charge rates for marijuana in the country, but there remains a small risk of criminal charges for those possessing marijuana for personal use.

Decriminalization vs. legalization

Much of the debate about marijuana laws involves talk of decriminalization. Decriminalizing marijuana would mean that possessing it would no longer be a criminal offense. This doesn't mean it would be legal, but possession would result in a ticket and fine (like a parking ticket), instead of a criminal charge with the possibility of a criminal record and jail time. Many politicians and activists are calling for the decriminalization of marijuana, arguing that those who simply possess the drug for their own use should not be subject to the stigma and loss of liberty inherent in criminal charges.

Decriminalization or legalization. What do you think?

February 1, 2009

Pardon Me? Why you don't need a lawyer to discharge your criminal record

Pardons, pardons, pardons!!! We will not be undersold!!!! Every pardon must go, at incredible bargain basement prices!!!!!

Ads for companies selling pardon services are everywhere, from the back of buses to flashing internet ads. The companies capitalize on the embarrassment people feel in having a criminal record, the urgency of removing it for employment, travel or immigration reasons, and the fear and confusion caused by dealing with legal paperwork.

What these companies don't tell you is that obtaining a pardon on your own is a relatively straight-forward, inexpensive process which does not require a lawyer or any pardon company. In Canada, pardons can only be issued by the National Parole Board ("NPB"), which has published a step-by-step guide for applying for a pardon. This means that pardon companies are charging you a hefty fee for filling out the same government paperwork which you can get yourself for free online.

But don't just take our word for it - even the NPB says there's no advantage to using a lawyer or pardon company:

You do not need a lawyer or a representative to apply for a pardon. The pardon application guide includes step - by - step instructions on how to apply for a pardon, as well as the pardon forms. The NPB gives equal consideration to all pardon applications received - whether they are submitted by an individual or by a representative from a private agency. Submitting your pardon application through an agency or lawyer will not improve your chances of being granted or issued a pardon. The NPB is not affiliated with any pardon agencies.

What about companies which "guarantee" I'll get my pardon?

Because the NPB is the only organization in Canada which can issue paroles, no company or lawyer can "guarantee" you will get your pardon. Whether you are eligible for a pardon depends on whether you have 1) completed all sentences and 2) waited a certain period from the completion of all sentences.

1. When is a sentence completed?

  • When a person has paid all fines, surcharges, costs, restitution and compensation orders in full;
  • When a person has served all of his/her time, including parole or statutory release; and
  • When a person has satisfied his/her probation order.

2. What is the waiting period?

  • For convictions under the Criminal Code and other federal statutes:
    - Three years for summary convictions; and
    - Five years for indictable offences.

The NPB will also consider whether you have demonstrated that you a law-abiding person of good character. If you do not meet these criteria, you will not be eligible for a pardon, and will have to wait one year to re-apply.

What about companies that say I'll get a "fast" or "expedited" pardon?

Some pardon companies claim to offer an "expedited" or "rush" service for an extra fee. Be wary of these claims because the NPB treats all pardon applications the same way, and there is no way to get expedited or rush service.

You can expect the process to take between 12 and 18 months. It may take longer if paperwork is not filled out correctly. Pardon companies may be able to help you fill out the paperwork correctly, minimizing delays due to incomplete information, but they have no special connection or power to put your application at the front of the queue.

If you carefully follow the step-by-step guide, proofread your application, and have a friend double-check the paperwork for you, you can avoid these delays without having to pay a pardon company to review your work for you.

What about the "special discounts" these companies offer?

Pardon companies can charge anywhere from $500 to $800 or more for preparing your pardon application. By comparison, if you apply for a pardon yourself your only costs (aside from postage) will be a $25 fee to the RCMP for a certified copy of your criminal record, the cost of obtaining a set of fingerprints from the RCMP, which is about $45, plus a $50 fee for the NPB to evaluate the merits of a pardon request. The total for a do-it-yourself pardon is likely less than $150.

The important thing to remember is that the application process for a pardon is designed for ordinary people to do themselves, without the help of a lawyer or company. With a little organization, you can save hundreds of dollars by applying for a pardon on your own behalf.