Quebec small claims court failing public: consumer group
Quebec keeps no statistics on how many judgments as it's left to plaintiffs to collect their own award
A Quebec consumer protection group is calling on the province to pay for bailiffs and restore other measures to help people who win in small claims court collect their award.
Prior to 1995, the Small Claims Division of the Quebec Court employed bailiffs to enforce the court's judgments.
"It was a strength beyond measure," said Yannick Labelle, a lawyer and analyst with the Union des Consommateurs.
"The Ministry of Justice had a better handle on it, had a better knowledge of how it worked, better leverage to negotiate fees with bailiffs," said Labelle.
Supposed to be 'people's court'
"It was as if to tell to people: 'Mind your behavior, because if you don't, we will enforce our judgments.'"
It cost taxpayers about half a million dollars a year to keep bailiffs on the public payroll, but the program was cut in 1995 as an austerity measure.
You have the appearance of access to justice, but it's not real justice,- consumer protection analyst Yannick Labelle
Since then, all the fees connected to enforcing a judgment fall to the plaintiff, Labelle said: everything from obtaining a writ of seizure to hiring a bailiff to serve a judgment or hiring a private detective to track down a creditor.
That creates an imbalance in a system that was supposed to be set up to be a people's court, she said.
The consumer protection group often hears of cases where the fees to collect on a judgment are more than the amount awarded in a ruling, Labelle said.
"There shouldn't be any fees that would constitute a barrier to go to court or execute or enforce the judgment," she said.
No tracking
About 20,000 cases are filed each year in the Small Claims Division of the Court of Quebec. Participants represent themselves, and no lawyers are involved in the courtroom proceedings.
The maximum award increased from $7,000 to $15,000 on Jan. 1, 2015.
The Ministry of Justice keeps statistics on the number of writs of execution issued to creditors who are owed money because of a small claims judgment, but it doesn't track the success rate of the enforcement proceedings.
The Union des Consommateurs has repeatedly asked the government to go back to the old system, but the province says there is no plan to do so.
"You have the appearance of access to justice, but it's not real justice," said Labelle.
South African example
Some other countries, such as South Africa, have set up a tribunal dedicated to consumer protection. A lawyer works for the government to help consumers get advice and navigate the small claims court system.
Labelle said that tribunal can appoint a court representative for a consumer that navigate the process alone and will carry out the enforcement.
"Having such a system with no costs from beginning to end [means] bigger conformity to the law," said Labelle. "The people who might want to perpetuate some violation of the law know there will be a trial, know there will be an enforcement, and they will have to pay in the end."
Bailiffs need more tools
The Bailiffs Chamber of Quebec has also asked the government to give them more tools to help plaintiffs collect.
Chamber President André Bizier said many clients show up after winning a case in small claims court, with no information about the debtor. And because it can take time to collect judgments, the debtor has often moved, leaving no forwarding address.
"We've asked for a secure system where we can get information on the losing defendant," said Bizier. "An address, a place of work, even license plates."
He said bailiffs, too, have gotten nowhere with the government.
The provincial government said some amendments to the Quebec Civil Code in 2016 will reduce costs for citizens who use small claims court. The amount collected from the sale of seized property will also be increased.
And while it may be hard to collect, the province points out that judgments last for ten years. So if the person doesn't have money now, they might in a few years.
One man's story
Stefan Kambiz Behfar sued a Montreal-based developer earlier this year over the developer's alleged failure to honour a promise to purchase Behfar's land.
A judgment was made in his favour, but the developer, who didn't appear in court, asked a judge to revoke the decision several weeks later.
The judge was comfortable with the reasons the defendant gave for his inability to appear at the first hearing, and a new hearing is set for next year.
Meanwhile, Behfar is out of pocket for obtaining a writ of execution and for hiring bailiffs, and there's no guarantee the judge will rule in his favour a second time.
Behfar finds it ironic that government agencies such as Hydro-Québec have tools to go after customers in arrears, but individuals are left on their own.
"This is very frustrating," said Behfar. "It's all on our shoulders – this whole process."
ABOUT THE AUTHOR
