# Restitution for defective products?



## Amira (Aug 6, 2013)

Looking for opinions on the pros and cons of taking a company to small claims court because of defective prosthetic products (can’t be more specific than that for privacy reasons). Value approximately $2600. The defects are related to:
(1) Improper manufacturing causing the products to break down faster. 
(2) Not made to specifications (colour, etc.). 

It was the business owner who admitted that the products were not constructed properly – this is not something a layperson can easily figure out. He offered to provide new products at no charge from a different manufacturer. I accepted the offer but a few days later he wrote to say he;d changed his mind about the severity of the defects. I then said I wanted a refund instead of new free products, and he refused.

All discussions between the company and me were done via email, except for the one phone conversation where the owner admitted the products were defective. Knowing this, I made several references to that phone call when writing him to try to persuade him to provide compensation. He never disputed that he’d made those statements during the phone call; instead he kept repeating that one of the issues with the non-conforming specifications could be fixed under the warranty. 

So what did I do:

Appealed to the BBB. The business did not participate in the mediation process so their rating was downgraded from a B to a C. However, they’re not accredited with the BBB so the actual impact is low.
Then appealed to the Ministry of Consumer Services, who told me that they don’t handle cases relating to quality complaints; they are currently focused on door-to-door sales complaints. 
Considered posting on the company’s Facebook page but in the end refrained because of privacy issues as mentioned above. No point setting up an alternate FB account because it would have no history and my post would thus lack credibility.
Wrote to Ellen Roseman, who said (no surprise) she’s flooded with letters and only takes on cases with broad interest. Even I admit my issue doesn’t fall in that category. She recommended posting to Yelp (a good idea) and Gripevine (maybe less of a good idea as they would attempt to mediate and the business has already refused that with the BBB).

My last resort seems to be small claims court – which I’m loath to do because I understand I’d have to file in Toronto (where the company is located) and travel there for court hearings. Not sure the time and cost of the court process is worth $2600 – and that’s IF I win.

So does anyone have any advice or experiences to share to argue for or against small claims court?

Any other steps I could consider taking? Would a letter from a lawyer threatening legal action be worthwhile, even if I don’t intend to actually go down that road?


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## kcowan (Jul 1, 2010)

I would send a registered letter to the Company in Toronto stating your claim and giving them a reasonable deadline for resolution. If that fails then your work for small claims court is already done. Recognize that a win in court still leaves collection to you, so a settlement is better.


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## wendi1 (Oct 2, 2013)

I haven't made a claim in small claims court, but my mom has. She paid the $25 (at the time) to take one of the big six banks to small claims. The bank manager with whom she had been dealing (who had not been helpful) showed up the next day at her place of work, settled the full amount, and even gave her the $25 out of his own pocket.

She filed in Montreal (I no longer remember the name of the bank, but I'm not sure its head office was located there).

I wouldn't bother threatening legal action - do, or do not. Lots of people threaten.


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## carverman (Nov 8, 2010)

Amira said:


> Looking for opinions on the pros and cons *of taking a company to small claims court because of defective prosthetic products (can’t be more specific than that for privacy reasons). Value approximately $2600. The defects are related to:
> (1) Improper manufacturing causing the products to break down faster.
> (2) Not made to specifications (colour, etc.). *


Threatening (lawyers letter or personal email/letter) USUALLY does not do any good..because it just escalates the situation ,and if you have to go to small claims court, you want to make sure your case is SQUEAKY CLEAN, and the judge does not find any fault with your behaviour dealing with the vendor. 

It pays to be businesslike with the vendor, even if he/she is dragging their heels or refusing compensation.

Most lawyers will charge at least $100 + HST for writing a letter for you. 

It is always better to try to settle with the vendor. Keep all emails and print them off for the small claims court if all else fails.
Failing that, *YOU WILL NEED PROOF of your claim, the amount of money in question for defective goods and what the vendor has done (if anything) to try and resolve this issue. Verbal conversations over the telephone is no good in a court of law, documents are required to be supplied with the claim.*
That means taking pictures of the defects as "Exhibit A", B and so on and submitting them as evidence
to the small claims judge that will peruse your claim before the day of court. 

*Also you may be required to supply a SWORN & notarized affidavit of the affecting situation caused by the defect goods and how these goods have impacted your life, because this can be considered a medical device of sorts. *

Never pay cash/cheque, unless you have dealt with the merchant before. Even credit card disputes can not always be resolved by your credit card company if the vendor decides to dispute your claim.

ALWAYS try to use PAYPAL for payment *to vendors that YOU HAVE NEVER DEALT WITH BEFORE*and do not know if they will take measures for your satisfaction to be addressed. 

http://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/Guide_to_Making_a_Claim_EN.pdf


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## Nemo2 (Mar 1, 2012)

wendi1 said:


> I wouldn't bother threatening legal action - do, or do not. Lots of people threaten.


Agreed.....appear reasonable but firm, and leave the impression (without threatening) that you're not going to be distracted, nor are you about to 'go away'.......they'll figure it out.


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## Beaver101 (Nov 14, 2011)

> *Amira*: Looking for opinions on the pros and cons of taking a company to small claims court because of defective prosthetic products (can’t be more specific than that for privacy reasons). Value approximately $2600. The defects are related to:
> (1) Improper manufacturing causing the products to break down faster.
> (2) Not made to specifications (colour, etc.). ...
> 
> ...


 ... is total compensation via small claims court the absolute 'resolution' here? Even you get a refund, you will still need to go to another distributor for a customized product. So how about getting him to re-do the product to your absolute satisfaction since he's willing to do this? Probably going to cost the distributor just as much to re-do/re-cast the entire product.


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## AMABILE (Apr 3, 2009)

I agree with kcowan that even if you win the judgement in
small claims court, you still have to collect the money.


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## carverman (Nov 8, 2010)

AMABILE said:


> I agree with kcowan that even if you win the judgement in
> *small claims court, you still have to collect the money.*


Provided you win, the small claims court judgement gives the losing party "some time to pay the judgement", if the losing party does not pay within the specified time, a further judgement can be sought to collect from the person's bank accounts or other assets. 

For a business this would not be the type of advertising desired. 

In most cases, once the other party is given notice by the court, you are taken them to small claims court, they will seek some kind of resolution with you.

You have 2 years from the time the claim is "discovered" (need some supporting evidence here as there
would be some leeway in most cases and you could advise the other party that is resolution is not
reached by X date, you consider taking this matter to small claims court) to sue them, as there is a statute of limitations in Ontario. Seek advice from a paralegal if need be, to fill out the necessary forms. 

This notification (preferably by registered letter or special courier) is not considered to be a threat,
but you just stating the obvious, as the court will notify the other party when to appear in court.
if the other party does not appear for any reason to tell their side, YOU usually win the case by
default, and the court could take further action to garnishee the award. 

It is not that scary. 

http://www.canlaw.com/scc/smallclaims.htm


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## Amira (Aug 6, 2013)

I very much appreciate the many helpful responses. I’ve decided to contact a paralegal to discuss the small claims court process (thanks, carverman, for the links) before committing to go ahead. I know winning and collecting are two very different things, hence my lack of enthusiasm for the process in the first place. FWIW, the business has been operating for 40 years and appear to be quite financially stable to my outsider eyes – but that doesn’t mean they’ll pay willingly or on time if they lose. 

To beaver101, the company is no longer willing to provide new products that meet my requirements; he will now only fix one specification issue. I couldn’t agree to that as it would not solve the bigger problem of the products being manufactured improperly plus the other specs issues would remain.

I also liked the idea of sending a registered letter asking for a resolution by a certain date prior to filing a SCC case. A settlement for even 50% of my costs would be acceptable.

Thanks again to everyone.


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## carverman (Nov 8, 2010)

Amira said:


> I very much appreciate the many helpful responses. I’ve decided to contact a paralegal to discuss the small claims court process (thanks, carverman, for the links) before committing to go ahead. I know winning and collecting are two very different things, hence my lack of enthusiasm for the process in the first place. FWIW, the business has been operating for 40 years and appear to be quite financially stable to my outsider eyes – but that doesn’t mean they’ll pay willingly or on time if they lose.
> 
> .
> 
> ...


Good plan and good luck to you, (meant is a sincere way).

The registered letter, even it costs $11 in postage, is a necessary step to establish the date of your claim for SCC.
If the respondent ignores your letter and avoids contact with you for any mutally satisfactory settlement, then at least you have some valuable evidence to establish your claim.

*Make sure you keep the postage receipt and photo copy the envelope as well at time of mailing for evidence...or you can photocopy the letter yourself, but there has to be postage on it for that.
*
*Make SURE YOU SEND PICTURES of the defects to the other party in the registered letter to them.* This establishes your case for a refund or adjustment, whatever you choose. 

Process:
1. ESTABLISH YOUR CLAIM, This will set the date for further proceedings.

2, Keep records of all correpondence with the other party (who will become the respondent in your SCC claim)

3. Take photographs of the damaged area and get a second opinion (if necessary)from a qualified person to assess the damage or defect.
This gives you complete control of your case that cannot be argued by the other party..that you are just complaining because you are "too picky."

4. Be polite,don't enter any accusatory remarks to the other party in your registered letter correspondence...be businesslike and as a customer, you are asking for satisfaction (of some kind) from the vendor.

5. Find the original bill from the vendor to establish value of the goods in dispute. 

If the other party ignores your registered letter, allow at least 60 days for them to respond before filing.
Most of the time, when you file in SCC, the other party gets notification and will want to settle, if they think
they could very well lose in SCC. 

Carver <missed my calling as a lawyer> Man (but I had experience already in SCC, (settlement before court date):encouragement:
... and 3 days of brutal Divorce court...I lost that one... btw.:biggrin:


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## Beaver101 (Nov 14, 2011)

Amira said:


> ...
> To beaver101, the company is no longer willing to provide new products that meet my requirements; he will now only fix one specification issue. I couldn’t agree to that as it would not solve the bigger problem of the products being manufactured improperly plus the other specs issues would remain.
> 
> ...


 ... not sure if contacting/notifying the manufacturer directly - tell them their product sncks + the additional details and see how they respond - can they help? But if SCC is the only route, then best of luck. Hope it works out. each:


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