Many of you ask how to win in court but what is equally important is the actions and things we do that cause us to lose in court. Let me tell you a true story and explain some issues that even I trip over at times.
Yesterday I was in court for a matter that came up last month. In short I was served a fallacious and vexatious claim against my common-law partner and I for an accident that occurred over two years ago. I filed a Motion to Dismiss for delay as I was served beyond the 2 year Limitations period according to the Act that governs the court.
RULE 24 DISMISSAL OF ACTION FOR DELAY
WHERE AVAILABLE
24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
Needless to say I lost. Yes I lost in court for all those who’ve been waiting breathlessly for that day to come. 😉
In summary I lost the Motion. Now that doesn’t mean that I lost the law suit, it just means that I must defend against it. As I said it’s totally fallacious. In fact it’s an outright lie on the Plaintiff’s part and they have refused to provide me any evidence of their claims for almost 2 years now.
They did, however, file their Statement of Claim on April Fool’s day and appropriate day for this case. The incident happened on 17 June 2013 in a parking lot at very low speed. I was served on 19 July 2015. Now the Limitations Act states that “any matter which has not commenced prior to the second anniversary of the Plaintiff learning of the injury can be dismissed for delay.” But what constitutes commencement?
Let me give you a quick word of advice here, don’t listen to some moron who’s never won in court. I have a friend who is very familiar with law suits. In fact he files them against the police all the time. The fact is, however, he has never had one victory. Not one. He always lose in court. And he advised me that I had to be served within that two year period or the case hasn’t commenced. That was the information I was operating under.
On Wednesday, the day before the hearing, I did what any smart person would do. I reviewed my materials and checked my resources. That was when I saw it. I knew immediately upon reading it.
HOW PROCEEDINGS COMMENCED
By Issuing Originating Process
14.01 (1) A proceeding shall be commenced by the issuing of an originating process. O. Reg. 14/04, s. 11.
and further:
PROCEEDINGS BY ACTION AS GENERAL RULE
4.02 Every proceeding in the court shall be by action, except where a statute or these rules provide otherwise. R.R.O. 1990, Reg. 194, r. 14.02.
ACTIONs — BY STATEMENT OF CLAIM OR NOTICE OF ACTION
Statement of Claim
4.03 (1) The originating process for the commencement of an action is a statement of claim (Form 14A (general) or 14B (mortgage actions)), except as provided by,
I knew before I went that my ship was sunk and that I had best come up with another plan. My back up didn’t work either because I hadn’t prepared for it and never filed anything into the court regarding it.
What was the Error?
If it’s not already clear I allowed a bullheaded Freeman to guide and direct me and when I kept asking him how a proceeding is commenced he had not answer. But even in the absence of evidence on his part I followed his advice. Stupid on my part and very unlike my style. I never trust anyone as I am a true anarchist. I believe in the statement: QUESTION EVERYTHING, QUESTION AUTHORITY.
So how could I let this happen to me? The same way you do. You get lazy and want quick results with minimal effort. You don’t want to do your own research and you don’t want to put time into it and you won’t hire an attorney. The latter is a smart move.
Don’t do as I did. Take an extra day or two. File your Notice of Intent to Defend. That alone will grant you an extra 10 days to sort things out and build your counterclaim.
Until next time I wish you Peace and Prosperity,
Rob
