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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 101368
Experience:  Lawyer
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A judgement was handed down by a justice in small claims

Customer Question

A judgement was handed down by a justice in small claims court back on August 14, 2013 awarding judgement to the plaintiff. Prior to the court case the defendant was served with an affidavit served with the court during. The defendant chose prior to the trial not to participate in any potential settlement conference in an attempt to resolve the matter. Subsequent to the trial I being the representative for the plaintiff was instructed by him to file a "Writ of Seizure and Sale of Land which was done on approximately August 28, 2013. On December 18, 2015 the Defendant sent a very "defamatory" letter to the "plaintiff" making statements to the effect the plaintiff was involved in a "scam business and fraud". She also stated"you have scammed me and even sexually harassed me". On December 29, 2015 the defendant has now filed "Notice of Motion and Supporting Affidavit" requesting the court for the following: (1) set aside default judgement and noting in default; (2) permission to file a defence; (3) terminate garnishment and/or withdraw writ(s). She goes on further once again in the affidavit and states further defamatory statements about the "plaintiff" such as: (1) harassed me on the phone for the amount of $6,780.00 and sexual services with all of them (him and his sons). I respectfully ***** ***** questions: (1) at the beginning of this process she was legally served with a Form 8 used as evidence in court, therefore if I am correct she had twenty (20) days in which to respond with a defence, she did not prior to the judges decision; (2) My understanding is " a party can ask for a new trial. A motion for a new trial must be made within 30 days after the final order at the trial, unless the court orders otherwise. Just a quick short third question if I may: what would your opinion be on the remarks the defendant has made towards my client and his son who also works in the business such as: " scam business and fraud"; " sexually harassed me"; harassed me"; " or sexual services with all of them( him and his sons)" Thank you for your anticipated response because I am just a close friend who helped him out in court with the ordinal case.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.

Let me just make sure I have this right. She was served with the claim, correct? Was the service personal? If so what is she saying is the reason for her not putting in a defence and asking for the default judgment to be set aside?

And what is her reason for waiting over two years?

Customer: replied 1 year ago.
our understanding of the facts is she attempted to sell her cottage and has now found out there is a "lien" on her property, hence she now is very agitated to say the least.
Expert:  Debra replied 1 year ago.

So she only found out about the judgment now?

But was she served personally or in her motion is she saying she was never served?

Customer: replied 1 year ago.
With all due respect, I have already paid the $72.00 dollars through my Visa and I am simply wanting my questions responded to which I inquired about in my main submission. What the defendants reasons were for not attending court or not responding to the original submission by the plaintiff we do not have any idea, other than to speculate her attitude with respect to the "plantiff's claim" would have been the same as her refusal to pay the invoice for the work which was completed on her cottage. With regards ***** ***** inquiry, yes the defendant was well aware of the proceedings because she was "served" prior to the court date and this was duly noted by the judge in this case. Please respond ASAP with regards ***** ***** inquiries: re: the what we believe to be defamation/libel statements by the defendant towards the plaintiff and his son and the other questions I had. Thank you for your anticipated reply.
Expert:  Debra replied 1 year ago.
I'm sorry but I thought you wanted a complete answer. I'm a senior lawyer and I wanted to gather all the information before I would answer. Whether she can get the default judgement set aside depends entirely on what is in her affidavit supporting her motion and in that affidavit you would know what her grounds are for seeking to set aside the judgment. I assume that she would be saying that she was not served personally and that is what I wanted to know but I will not deal with that issue because I don't have the information.The plaintiff can sue her for defamation if what she is saying are lies that she is holding out to be truths and these lies are harming the plaintiff's reputation. The plaintiff will not succeed if her wording makes it clear that she is stating her opinion and not actual lies or if there are no damages to the plaintiff's reputation so the plaintiff will have to show that these court pleadings damaged the plaintiff's reputation.Does that assist you?
Customer: replied 1 year ago.
What is contained in her documentation to the plaintiff is the fax sent to his place of business which contained the following "defamatory and libellous" statements: (1) plaintiff was involved in a scam business and fraud"; (2) "you the plaintiff have scammed me and even sexually harassed me". On December 29, 2015, the defendant filed an application for "Notice of Motion and Supporting Affidavit", requesting the court for the following:(1) Set aside the default judgement and noting in default:; (2) Permission to file a defence:; (3) Terminate garnishment and/or withdraw writ". She goes on further (the defendant) and states further defamatory statements about the plaintiff as follows:(1) "he (plaintiff) harassed me on the phone for the amount of $6,780.00 and sexual services with all of them ( him and his sons". These statements by the defendant are all contained within the first fax sent on December 18, 2015 and in her affidavit filed with the court on December 29, 2015. I believe there can be no doubt as to whether or not she knew these to be outright lies and vicious statements to the plaintiff and his family. This has been a family run business for over fifty (50) years in our community and her vicious statements have caused severe damage to Mr. Belanger's reputation and standing with his co-workers, family and friends who know and think so highly of him as a person and a businessman. Your assistance would be appreciated because we now have a scheduled court date for April 5, 2016 @ 9:30am at the Barrie courthouse. What would you recommend with proceeding with the libel charges or raising them with the judge in the hearing on April 5, 2016? Thank you
Expert:  Debra replied 1 year ago.

These are not charges. Charges are for criminal matters.

You would have to start a lawsuit to sue for defamation. It's not about telling the judge on the hearing date.