Going to Trial in Small Claims Court (Script 168)

From Clicklaw Wikibooks

This script discusses preparing for and attending your trial in Small Claims Court. Small Claims Court deals with claims of up to $25,000. Most trials in the Small Claims Court follow the same set of rules except that in Vancouver, if the claim is for financial debt, the trial will be a “summary trial” and also in Vancouver and Richmond, if the claim is for less than $5,000 and does not involve personal injuries, the trial will be a ‘simplified trial’. The procedures for each of these types of trials will be discussed near the end of this script.

Before the trial

There are three procedures that you may need to deal with before the trial. These procedures are mediation, settlement conferences, and trial conferences. Sometimes these processes are mandatory and sometimes they are optional. This script will describe each process in turn.

Mediation

Mediation is a process that involves having a mediator (a neutral third party) listen to all parties and attempt to persuade the parties to resolve the dispute. The mediator does not have the power to make a decision like a judge, but will encourage dialogue and keep the meeting respectful and fair.

Mediation is mandatory in some cases. In other cases, the parties can decide that a mediation should be conducted.

In Vancouver, most claims for more than $5,000 and all personal injury cases must be mediated before trial. In all other court locations, mediation is available for claims over $10,000, but is optional. However, if one of the parties chooses to file a Notice to Mediate, the other party must attend that mediation.

You don’t have to pay for the mediator if the mediation is held under the Court Mediation Program for claims up to $10,000. Otherwise, the expense of the mediator is shared between the parties.

More information about mediations in Small Claims Court is available on the Small Claims Court website at www.ag.gov.bc.ca/courts/small_claims. Select “Processes”, and then from the left-hand menu either “Mediation Program for Claims Up to $10,000”, or “Mediation for Claims between $10,000 and $25,000”.

Settlement Conference

Before a trial, most cases have a “settlement conference”

The next process you should know about is the settlement conference. Unless your case is in Vancouver, all parties to the claim must attend a settlement conference prior to trial. There may be an exception if your claim is related to a motor vehicle accident. A judge also attends the settlement conference, but this judge isn’t necessarily the same judge who will preside over the trial, if the case goes that far. The purpose of the settlement conference is to try to resolve or “settle” some or all of the issues between you, and if settlement isn’t possible, to help you prepare your case for trial. Importantly, the attending judge will not make a ruling on the matter. He or she will guide the dialogue of the conference, specifically targeting the important legal issues of the case in hopes of resolving the matter prior to trial.

If your claim is for personal injuries, within 6 months of filing the claim and before the settlement conference is scheduled, you must file and deliver to the defendant a certificate of readiness attaching all medical reports and records of expenses you intend to use at the trial to prove your side of the case.

What happens at the settlement conference?

You must bring all the documents and reports you plan to use at trial to prove your side of the case. If you are having trouble getting copies of the other side’s documents, the judge can order that copies of these documents be exchanged. The judge will discuss the claim with you and see if the claim can be settled. If it cannot, the judge can make orders concerning the collection and presentation of evidence needed for the trial. The judge can also dismiss the claim if he or she thinks it is baseless or vexatious (meaning intended only to cause harm or annoyance).

Trial conference

The third pre-trial process only applies if your case is commenced in Vancouver. This is the trial conference, where a judge will determine the amount of time needed for trial, make orders concerning evidence and other matters. You will have to complete a Trial Statement summarizing your case and file it with the Court at least 14 days before the conference.

Written offer of settlement

One final item you should consider before going to trial is a written offer of settlement. Within 30 days after a mediation, settlement conference, or trial conference (whichever occurs first, but before the trial) you may file a written offer of settlement with the Small Claims Court, then present it to the other side. “Filing” means dropping a document off with the registry, who keep a copy of it for the court records. The opposing party will have 28 days to accept your offer. If they do not accept the offer and the outcome at trial is similar to your offer, the judge can order them to pay an additional penalty of up to 20% of what you initially offered.

What if you have to go to trial?

Often, you will be the main witness for your case in Small Claims Court, but not necessarily. You will want to think about what other witnesses and what expert witnesses and/or reports you will need to support your case.

What do I have to prove to win?

Small Claims Court is determined on a “balance of probabilities”. This means that you will need to convince the Judge that your version of the events is more probable (meaning believable) than the version of the opposing party. Evidence—including physical evidence, such as invoices and contracts, or evidence given by a witness, known as testimony—will help your case enormously, being necessary in most situations. The act of giving testimony is known as “testifying”, and it answering questions in front of the court.

Ordinary witnesses can testify about facts that they personally know about

For example, they can testify about what they saw. However, they cannot talk about what they heard one person say to another—this type of testimony is considered “hearsay evidence” and isn’t allowed to prove the truth of those statements, except for in rare circumstances.

What about expert witnesses and expert reports?

Expert witnesses are the only witnesses who can give evidence about an opinion. If you intend to have an expert testify at the trial—such as a doctor for a personal injury claim—you must give the other party a summary of the expert’s evidence at least 30 days before the expert testifies. If you only want to use a letter or written report from an expert, you must give the other side a copy of that report, together with a statement of the expert’s qualifications, at least 30 days before the trial. Then if the other side wants to “cross-examine” (meaning ask that expert questions at trial to challenge the expert’s testimony), they must let you know at least 14 days before the trial, and your expert must attend the trial in person.

Repair estimates and estimates of the value of property aren’t considered expert evidence. However, copies must still be given to the opposing party at least 14 days before the trial.

You must make the arrangements for your witnesses to attend the trial

If a witness refuses to come voluntarily or you’re not sure they’ll attend, you can file a form called a Summons to Witness, available at your courthouse’s Small Claims Court registry. You can also download this form from the Small Claims Court website. The form tells you how to deliver the summons to the witness, who must receive the summons at least seven days before the trial.

Expect to pay your witness’ fees and expenses

You must offer to pay a witness’ reasonable travel expenses to attend trial. You should also expect to pay your expert witness’ fees and expenses—you’ll want to determine that in advance before deciding whether or not you require the expert’s attendance at trial, as some experts, especially professionals like doctors and engineers, can charge significant fees. You may be able to avoid the expense of having your expert personally testify at the trial by providing the expert’s opinion in writing to the opposing party well before trial, but if the opposing party wants to question your expert, you’ll have to produce your expert in person.

Once the trial begins, how do you present your case to the judge?

In Small Claims Court, you don’t have to follow the strict rules of evidence followed in Supreme Court, and the judge will decide what rules or procedures to follow. This makes Small Claims Court more accessible to the general public. However, everyone who testifies will have to swear an oath or affirm to tell the truth. You will also be expected to have all of the documents you intend to use to prove your case and all of your witnesses present at the trial. Remember to bring the original versions of any documents you intend to use, along with at least two copies.

How do you proceed if you’re the claimant?

As the claimant, you will speak first. You may want to begin with an “opening statement” telling the judge briefly what your case is about. After, you can give your evidence to the court. You’ll tell your story chronologically and produce any documents that help proving your case on a balance of probabilities. After, the defendant has a chance to cross-examine (meaning question) you on what you’ve said. The purpose of this is to expose inconsistencies or other weaknesses in your story. Be sure that your testimony is both truthful and accurate.

You will then call your other witnesses and question them, allowing them to give their evidence to support your claim. You should ask open-ended questions like “What colour was the traffic light?” Leading questions are prohibited when examining your own witnesses. A leading question is one that suggests the desired answer to the witness, such as “the light was red, wasn’t it?” The defendant is then allowed to cross-examine your witnesses.

How do you proceed if you’re the defendant?

You should make written notes while the claimant is testifying. When the claimant has finished, you’ll get to cross-examine them. Your objective will be to get the claimant to admit things that help your case, or to weaken the claimant’s testimony by showing that the claimant has a poor memory, is mistaken, or is lying. Don’t expect the claimant to admit that they are exaggerating or lying—what matters is that you have put your version to them fully and fairly.

After the claimant and the claimant’s witnesses have finished, you will be able to tell your side of the story and call your own witnesses to testify. The claimant may then cross-examine you and your witnesses. The judge often asks questions as well, so be prepared for this.

What happens after the evidence is presented?

When all of the evidence is finished, the claimant and defendant are usually allowed a final opportunity to tell the judge why he or she should decide the case in their favour. Be prepared to summarize what you believe are the strongest points of your case and repeat them to the court.

How does judgement proceed?

In most cases, after listening to both parties and the witnesses and reviewing the documents, the judge will make a decision and tell you what it is. Sometimes however, the judge will postpone telling you his or her decision to a later date.

If the judge decides the claimant has proven his or her claims on a balance of probabilities, the defendant will have to pay the full amount of the claimant’s claim. If the judge decides that the defendant’s evidence is more convincing, then the defendant will not have to pay the claim amount. Further, the losing party usually has to pay the winning party costs for things such as filing fees, delivering documents and witness costs. In circumstances where the judge thinks that a party started or defended a claim without a reasonable prospect of success, they can order that the losing party pay a penalty amounting to 10% of the claim value. The amount the judge orders the losing party to pay may be due immediately, or the judge can make a payment order setting out a payment schedule.

There is a simplified trial process for Vancouver and Richmond

In Richmond and Vancouver, if the claim is not for personal injury or a debt claim by a financial institution and is for less than $5,000, a simplified trial will be scheduled that will last one hour. Before the trial, each party will have to prepare and file a Trial Statement summarizing your case. The Trial Statement must be filed with the Court Registry at least 14 days before the simplified trial and you must give the other party a copy at least 7 days before the simplified trial. At a simplified trial, the parties and witnesses will give oral evidence and documents can be presented. The trial may be conducted by either a judge or an adjudicator appointed by the Court.

Vancouver Summary Trial

In Vancouver, a claim for a financial debt will be heard as a summary trial. If you have documents to support your claim, you must file them with the Court Registry at least 14 days before the summary trial and give a copy to the other party at least 7 days before. At a summary trial, the parties can give evidence and call witnesses but the trial is expected to last only 30 minutes.

Where can you get more information?

  • Talk to the Small Claims Court staff.
  • Read one of the Small Claims Court guides available at the registry and on the Small Claims Court website at www.ag.gov.bc.ca/courts/small_claims/.


[updated November 2015]

The above was last reviewed for accuracy by Jack Montpellier.


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