Question

I live in Vancouver.  I have been receiving collection calls from a law firm in Ontario.  This law firm has also sent me a letter with a three page document enclosed, something the lawyer refers to as a ”draft Statement of Claim“.

Is this lawyer breaking the law sending me this letter?   What should I do?

Answer

This practice might be illegal under the British Columbia Business Practices and Consumer Protection Act (BCCPA).  In most provinces lawyers engaged in debt collection work are exempt from provincial law regulating the conduct of those doing debt collection work.  However, it would appear that the definition of “collector” in s. 113 in the BPCPA is so broad in scope that it includes anyone doing debt collection work; creditors, collection agencies and lawyers.  This means that creditors, collection agencies, and lawyers might all be subject to the identical code of conduct when they are attempting to collect monies from a B.C. resident.

Section 113 of the British Columbia Business Practices and Consumer Protection Act reads as follows:

113.  In this division, “collector” means a person, whether in British Columbia or not, who is collecting or attempting to collect a debt.

I would draw your attention to  section 123 of the British Columbia Business Practices and and Consumer Protection Act which reads as follows:

123.    A collector must not do any of the following, whether on the collector’s own behalf or on behalf of another person, directly or indirectly:

(a)  supply any false or misleading information,

(b) misrepresent the purpose of the communication,

(c) misrepresent the identity of the collector or, if different, the creditor, or

(d)  use, without lawful authority, a summons, notice, demand, or other document that suggests or implies a connection with any court inside or outside of Canada.

Included in a lawyer’s draft Statement of Claim collection letter, as an enclosure, is an imitation of a court form.  Therefore, it would appear that a draft Statement of Claim collection letter sent by a lawyer to a B.C. resident is illegal as a contravention of subsection 123(d) of the Act.

The draft Statement of Claims that I have seen suggest that a consumer, regardless of what province they live in, will be sued in Ontario Small Claims Court or, possibly in the case where monies owing to a creditor is more than $10,000, in Ontario Superior Court.  Suing a consumer in Ontario may not be permitted under the rules of civil procedure in a particular province that determine the specific jurisdiction in which a court action may be commenced.  Therefore, the draft Statement of Claim you have received might contravene subsection (a) of section 123 for providing false or misleading information.

I have reason to believe that one or more lawyers who are sending out draft Statement of Claims might be misrepresenting the identity of their client, something that would appear to be illegal under subsections (a) and (c) of section 123.

You might want to file a complaint with the British Columbia Business Practices and Consumer Protection Authority.  Their website is www.bpcpa.ca and their toll free phone number is 1 (888) 564-9963.  Ideally, you should make a written complaint to their office as opposed to a complaint over the phone.  You should send them a copy of any draft Statement of Claim that you have received, including the lawyer’s letter and the enclosure.

You might also want to forward a copy of your complaint to the British Columbia Business Practices and Consumer Protection Authority to the provincial law societies in both British Columbia and the province in which the lawyer sending you the draft Statement of Claim is licensed to practice law.  You can send your written complaint to The Law Society of British Columbia, Professional Conduct Department, 845 Cambie Street, Vancouver, BC  V6B 4Z9.  You can also call The Law Society of British Columbia at (604) 669-2533, [Toll Free in B.C. at 1 (800) 903-5300].  For more information about making a complaint to The Law Society of British Columbia you can visit their website at www.lawsociety.bc.ca, under ‘Public’, there is a reference to ‘Lawyer Conduct and Complaints’ which provides information on making a complaint, how to contact them, and how a complaint form can be downloaded from their website.

If the lawyer sending you the draft Statement of Claim collection letter has an office in Ontario then you may also want to file a complaint with The Law Society of Upper Canada, Osgoode Hall, 130 Queen Street West, Toronto, ON M5H 2N6, Attn.:  Complaints Department.  The direct line at The Law Society for complaints is (416) 947-3310.

I would ask that you forward a copy of any draft Statement of Claims that you receive, including the enclosure, to Mark Anthony Silverthorn Law Offices, Professional Corporation, 30 Duke Street West, Suite 1001, Kitchener, ON  N2H 3W5.  I would also ask that you send to my office a copy of any written complaint that you send to the British Columbia Business Practices and Consumer Protection Authority or to The Law Society of British Columbia.

Question

I live in Sudbury, Ontario.  I recently received a letter from a lawyer demanding payment on behalf of a creditor I have never heard of before.  When I googled the name of this creditor I discovered it was a company located in the U.S. that described itself as a debt buyer.

The letter from the lawyer demanded payment of my account within 10 days of the date of the letter.  The lawyer’s letter also contained a 3-page enclosure marked “DRAFT” that the lawyer referred to as a draft Statement of Claim.  This enclosure would appear to be a form used in the Ontario Small Claims Court. 

There is something fishy about this letter.  I have been receiving phone calls from this law office demanding payment of my account.  The people working in this office sound and act like collectors at a collection agency and not like employees in a law office.  What do you suggest that I do?

Answer

I share your concerns about lawyers sending draft Statement of Claim collection letters to Ontario residents.  Senior Ontario government officials such as Brian Pitkin, the Ontario Registrar of Collection Agencies, have indicated that they believe a lawyer’s draft Statement of Claim collection letter may be illegal for contravening the Ontario Debt Collectors Act, R.S.O. 1990, Ch. D.4.  Section 1 of this Act reads as follows:

        1.      Every person, whether principal or agent, who prints or publishes a notice or form that is an imitation or a colourable imitation of any court form, and that is calculated to deceive the public by inducing the belief that such notice or form is a notice or form from a court, or is part of the process of a court, or who issues or makes use of such a notice or form in connection with a collection agency or otherwise, is guilty of an offence and on conviction is liable to a fine of not more than $20.

Furthermore, if you have received a draft Statement of Claim collection letter the lawyer might be sending you this letter to you at the request of a collection agency and not the creditor whose name appears on your letter.  Last year Brian Pitkin, the Ontario Registrar of Collection Agencies, wrote a letter dated October 27, 2008, to all collection agencies in Ontario, advising them that it was unacceptable for a collection agency to hire a lawyer to send a draft Statement of Claim to a consumer on the collection agency’s behalf.  Mr. Pitkin also indicated in his letter dated October 27, 2008, that it was unacceptable for a collection agency to hire a lawyer to send a demand letter to a consumer on behalf of a collection agency if the name of the collection agency was not disclosed in the lawyer’s collection letter.

If you have concerns about a draft Statement of Claim collection letter you have received from a lawyer you may want want to raise your concerns with both The Law Society of Upper Canada and Brian Pitkin, the Ontario Registrar of Collection Agencies.  You can make a written complaint to Brian Pitkin, at Brian Pitkin, CD, Registrar of Collection Agencies, 5775 Yonge Street, Suite 1500, Toronto, ON  M7A 2E5.

You can contact the Complaints Department at The Law Society of Upper Canada at (416) 947-3300 and your raise your concerns with them.  The website for The Law Society of Upper Canada is www.lsuc.on.ca   You may want to ask a lawyer in The Complaints Department at The Law Society if it is a contravention of the Ontario Debt Collectors Act or The Law Society’s Rules of Professional Conduct for a lawyer to send a collection letter to an Ontario resident in circumstances where the lawyer is using an imitation of a court document in an attempt to collect a debt. 

You can send a copy of a draft Statement of Claim that you have received, together with a letter setting out your concerns about its use, to The Law Society at The Law Society of Upper Canada, Osgoode Hall, 130 Queen Street West, Toronto, ON M5H 2N6, Attn.: Complaints Department.

If you do make a written complaint to either Brian Pitkin, the Ontario Registrar of Collection Agencies, or The Law Society of Upper Canada, I would ask that you provide my office with a copy of your complaint as well as a copy of the draft Statement of Claim collection letter that you received from the lawyer.

Question

I live in Ontario. Recently I received a letter from a lawyer demanding payment of an outstanding credit card debt. This lawyer`s letter contained an enclosure, a 2-page Plaintiff’s Claim, that looks like a court form issued by the Ontario Small Claims Court, with the word `DRAFT` printed on it.

Have I been sued?  Is it legal for a lawyer to send this type of document to me?

Answer

You have probably received what is known in the collection industry as a “draft statement of claim”, a document which is only a draft of a claim and, in fact, is not an actual legal document commencing a lawsuit.  A draft statement of claim is an incredibly effective written notice used to intimidate unsophisticated consumers to pay an account. 

You should be able to recognize a document as a ”draft statement of claim” by the fact that (1) the document does not contain a court file number issued by the Small Claims Court, (2) the document is not signed by a court official,  and (3) the word ‘DRAFT’ is prominently displayed on the document.

Brian Pitkin, the Ontario Registrar of Collection Agencies, wrote a letter dated October 27, 2008, to Ontario collection agencies advising them that the practice of lawyers sending “draft statement of claims” to consumers at the request of collection agencies or creditors would no longer be tolerated.  Therefore, it would appear that it may be illegal in Ontario today for a lawyer to send a “draft statement” to a consumer. 

If you suspect that you have received a “draft statement of claim” I would suggest that you call our office toll free at 1 (866) 996-9941 and we can discuss the correspondence you have received.