Small claims may get reader out of oily situation

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Pro Bono

Dear Tuma:

I just bought a new generator for $600. After about a month, the motor went. The store gave me a one-year guarantee on it. When I tried to take it back, the store said that I didn't replace the oil so it was my fault. They wouldn't replace it. I told them that I wasn't that stupid, especially since I've worked around motors my entire life. What can I do?

Burnt Out

Dear Burnt Out:

I would suggest writing a letter of complaint to the manager of that particular store and send a copy of the letter to the president of the company. If that doesn't get you any satisfaction, you can file a claim in Small Claims Court. The forms are available at your local courthouse and you will have to pay the filing fee (don't forget to ask to be reimbursed for this if you win your case). Once you file the claim, you will then need to serve the other side with a copy and allow them to respond. They will either deny any wrongdoing or counterclaim against you. Different provinces have different limits and you should check what your provincial limit is. You do not need a lawyer to handle your case, but you can hire one if you want. The judge is really a lawyer who will hear both sides of the story and any evidence presented and makes a ruling on your claim. The entire process is quite informal and is quite easy to do.

Dear Tuma:

When one has a certificate of possession for property on their reserve, why does the band housing department require one to sign surrender before another band member is allowed to build a CMHC house on that property? What would the legal and financial implications be for the band or the person living in that house if surrender was not signed by the person who has a CP and that CMHC house was already built? If a person lives in a house built more than 20 years ago by DIA or the band and it is not a CMHC house, who is the legal owner of the house? Is the house still considered a band subsidized house?

Who Owes My House?

Dear Who:

DIAND usually provides limited funds to each First Nation to help it build houses on the reserve. These limited funds are not enough to meet all of the housing demands that a First Nation has and bands have to look elsewhere for financial assistance in building houses. A band might go to a bank for a loan and provide the bank with a ministerial guarantee or enter into an agreement with the Canadian Mortgage & Housing Corp. (CMHC) so that CMHC will pay part of the regular payments. This reduces the interest rate that a band pays on these loans.

Folks who are allocated CMHC houses have to pay a mortgage (usually paid by social services) and if the band member defaults on the mortgage, the lender can then go to CMHC for the full payment. CMHC can then go to the minister to recover its losses and the department may withhold money from the First Nation in any money that the First Nation receives from the department.

The band will eventually pay but it needs to decide whether it will evict the non-paying member from the house and put someone else in who will pay.

Thus, the band needs to protect its legal right to evict persons from its homes and it may require a surrender of the CP so that it can evict non-paying members from a CMHC home. Persons living in a house that is located on another's person CP may have to pay rent to the holder of the CP. If the house is built on common band land and it was subsidized by the band, it belongs to the band, but residents may have a claim against the band for any improvements made while they were living there.

Dear Tuma:

I have been employed by my band council for two years. Under the personnel policy, I am eligible for two weeks annual leave for the period of 1 to 3 years. It has been recently brought to my attention that another employee of the band was able to negotiate their employment to gain more annual leave than what was stated in the policy. I am not privy to all the details, but have I been discriminated against or s it just tough luck?

Looking for a Fair Shake

Dear Looking:

It doesn't sound like you were being discriminated on any of the grounds of discrimination (i.e. race, colour, sex, etc...).

It sounds likes the other employee was able to negotiate a better employment contract than you. You can negotiate the terms of your employment: salary, vacation time, sick leave, pensions, health/dental benefits, hours you will work, and even how you are to be fired. It all depends on your negotiating position and power.

Folks in higher management jobs have a greater amount of negotiating position and power. This means that they can and do negotiate the terms of their employment contract while those in lower levels are usually presented with what is written in the personnel policy. Negotiations can be done at any time and can be done at your annual performance review.

This column is not intended to provide legal analysis or opinion of your situation. Rather this column is meant to stimulate discussion and create awareness of various situations in which you should contact a lawyer. If you have a question you would like to see addressed in this column, please e-mail me at: tyoung@patttersonpalmer.ca. Tuma Young is a lawyer with the law firm of Patterson Palmer in Truro, N.S., www.pattersonpalmer.ca