Being Sued in Small Claims Court (Script 167)

From Clicklaw Wikibooks

This script details being sued in Small Claims Court.

Do not ignore a Notice of Claim

If you receive a Notice of Claim from Small Claims Court showing you as a “defendant”, this means that someone, including a person or company, called the “claimant”, is suing you.

A Notice of Claim may be handed to you personally by the claimant or by any adult person, or it can be sent to you by registered mail. If you’re difficult to locate, the court may order that you be notified through an ad in the newspaper or a notice posted to the front door of your home address.

Whatever the case, you cannot avoid the lawsuit simply by ignoring the Notice of Claim. You must respond to it—within 14 days of receiving the Notice of Claim if you live in BC, or within 30 days if you live outside of BC. If not, the claimant may win the lawsuit automatically, known as “default”, discussed in detail below.

How do you reply?

There are several ways to respond to a Notice of Claim, but the main ones are:

  1. you agree you owe the amount set out in the claim
  2. you admit you owe the amount set out in the claim, but state that you do not have enough money to pay it off
  3. you deny responsibility for all or part of the amount set out in the claim

You may want to get legal advice before you make any admissions.

What should you do if you agree you owe the claim?

If you agree you owe the amount claimed in the Notice of Claim, you can contact the claimant directly and offer to pay the claim. You must also pay the claimant’s expenses, such as the fees to “file” or enter the claim in the court records and to deliver the documents to you. You should get a receipt and have the claimant sign a form called a Notice of Withdrawal, which you can obtain from the Small Claims Court registry. You should then take this form to the registry to discontinue the court action against you.

Alternatively, you and the claimant might reach some other satisfactory agreement, in which case you may both sign a Consent Order and file it with the Small Claims Court registry, or the claimant may file a Payment Order with the registry. If you follow the instructions set out in the Consent Order or Payment Order, the lawsuit will end.

What should you do if you admit the claim, but don’t have enough money to pay it off?

If you admit the claim but are unable to pay its amount, you should fill out the Reply form attached to the Notice of Claim you received. If you didn’t get a blank Reply form with the Notice of Claim, you can go to any Small Claims Court registry to pick one up, or you can download the form from the Ministry of Attorney General’s website (the web address provided at the end of this script). In the space provided, list the amounts you plan to pay and the dates you can make those payments.

After, file your Reply with the Small Claims Court registry shown on the Notice of Claim. The registry will send a copy to the claimant, who will decide whether to accept your proposed payment plan.

If the claimant accepts, you will receive a Consent Order to sign, which will end the lawsuit. If the claimant doesn’t accept, you can ask for a payment hearing, or the claimant may summon you to a payment hearing where the court will set a Payment Schedule.

What should you do if you deny all or part of the claim?

If you admit the claim but disagree with part of what is claimed, indicate what you disagree with on the Reply form, and again go to the Small Claims Court registry to file your Reply. In this case, you’ll have to pay a filing fee for the Reply.

If you deny the whole claim, again, complete a Reply, this time indicating why you deny it. You do not need to describe everything about your case, as you’ll get a chance to present your case later. When replying, you simply must list the reasons why you deny the claim. Evidence is not submitted at this stage, and the Reply should be brief, factual, and specific.

What’s the risk if you dispute the claim and lose?

If the case proceeds to trial and judgement is made against you, you will have to pay the amount of the judgment, plus the claimant’s fees and costs for getting the court documents to you. The judge can also order you to pay an additional 10% of the amount claimed if you file a Reply and go to trial when you had no reasonable chance of success. Also, if you refuse to resolve or “settle” the claim (for an amount offered by the claimant) and the trial judgment is more than or equal to the claimant’s offer, you may have to pay a penalty of up to 20% of the amount of the offer.

How long do you have to file a Reply?

If you live in BC, you have 14 days after you receive the Notice of Claim. If you live outside of BC, you have 30 days after receipt.

What if you ignore a claim or don’t file a Reply in time?

It is very important to file a Reply, and to do so on time. If you fail to do either, the claimant can get a Default Order against you without you having the opportunity to dispute their claim. This means that the court will evaluate the case exclusively on the facts and evidence given by the claimant, and award judgment based on this alone. You will have no opportunity to defend yourself, and you may have to pay the claimant everything they ask for.

What other options do I have?

It may be the case that you have your own claim to be brought in the matter against the claimant. In this case, you can file a Counterclaim, and the judge would later decide who was at fault.

Or, you may admit that you owe money, but believe the claimant also owes you money for some other reason. In this case, you can file a Counterclaim claiming a “set-off”. A set-off involves using the money the claimant owes you to reduce the amount that you owe the claimant.

Or, you may think another person should pay all or part of the claim against you, in which case you can file a Third Party Notice, bringing that other person into the lawsuit.

All of these options require that you to pay an additional filing fee.

What happens if the lawsuit proceeds?

After you’ve filed your Reply (and perhaps Counterclaim or Third Party Notice), the registry will send a copy of the Reply and possible Counterclaim to the claimant, and a Third Party Notice to any third parties you have added.

For most disputed claims, a “settlement conference” will be scheduled. The registry will notify you of the date and time for this meeting, which is attended by the claimant, a judge, and yourself. The purpose of the settlement conference is to try to resolve some or all of the issues between yourself and the claimant before going to trial. If the claim cannot be resolved, there will be a trial.

You may also receive notification regarding a court “mediation” for the dispute, where a neutral mediator will attempt to resolve the dispute.

You must attend the settlement conference or mediation. Failing to do so, you risk having a payment order made against you for the full amount of the claim. If you cannot attend, you must notify the scheduler immediately and seek an adjournment or postponement of the scheduled date.

The most important thing to remember is that you must respond

If you get a Notice of Claim, you must file a Reply within 14 days (if you live in BC).

Where can you get help or more information?

[updated May 2015]

The above was last reviewed for accuracy by Jack Montpellier.

© Copyright 2017, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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