Suing Someone in Small Claims Court (Script 166)

From Clicklaw Wikibooks

How do you start an action in Small Claims Court?

First, you must complete a document known as a Notice of Claim. This document effectively begins the lawsuit once it is filed with the registry and delivered to the opposing party. You can complete the form a number of ways, including:

  • by going to the Small Claims Court registry and asking for the document, or
  • by telephoning or writing to the Small Claims Court registry and asking them to send you a copy (the phone number to contact is 250.356.1478)
  • by downloading the form from the Ministry of Justice’s Small Claims Court website at www.ag.gov.bc.ca/courts/small_claims/.
  • by completing the Notice of Claim and other Small Claims Court forms online at https://justice.gov.bc.ca/FilingAssistant/ and then printing yourself a copy of the form.

In your Notice of Claim, you must describe what happened leading to the lawsuit and where these events happened. State how much money you’re seeking, and any other remedies you are asking for. An example of another remedy is an order from the Court that the opposing party stop doing a particular activity at the heart of the claim.

You are called the “claimant”. The person or company you are suing is called the “defendant”. Be careful to name the defendant properly. If it’s not done exactly right, you might not be able to get your money. Though Small Claims Court is less formal that Supreme Court, certain procedures must be followed closely for success.

What if the defendant is a company?

If you’re suing a company, you must use the legal name of that company. To find the correct name of a company, you must obtain a company search from the Corporate Registry, located at 940 Blanshard Street in Victoria. The mailing address is PO Box 9431, Station Provincial Government, Victoria BC, V8W 9V3. Call the Corporate Registry at 250.387.5101 for more details. Your local government agent’s office or a private title search company can also conduct a company search. Also see the Corporate Registry’s website for conducting an online search through Corporate Online.

It is important that you name the correct company when filling out a Notice of Claim. Also, be aware that some companies are subsidiaries of larger companies, or vice versa, and often these companies have similar names. It is vital that you name the exact company you were dealing with when the incident you are suing for occurred. Naming the incorrect company is no different in the eyes of the court than naming the wrong person, causing your Notice of Claim to be dismissed.

Where do you file your Notice of Claim?

You must “file” your Notice of Claim in the proper Small Claims Court registry. To “file” the claim means to submit it to the court registry and enter it in the court records. If the defendant is a company, you also need to file a copy of your company search. For information about the location of the proper court registry for filing your claim, refer to script 165 on “What is Small Claims Court?” You will also have to pay a filing fee, which you may get back from the defendant if you win.

How do you notify the defendant of your claim?

The next step is to “serve” the Notice of Claim (along with a blank Reply form for them to fill out) on the defendant. To “serve” a document means getting it to the defendant. There are different ways to serve a defendant, depending on whether the defendant is a person, a company, or an unincorporated business or partnership. For example, if the defendant is a person, you can serve them by personally giving the Notice of Claim to them, having someone else give it to them, or sending it to them via registered mail. See the Small Claims Rules for the proper way to serve the defendant you are suing.

After the defendant has been served, you must complete a Certificate of Service to prove that the defendant has been properly served.

How long do you have to serve your Notice of Claim?

After you’ve filed your Notice of Claim, you have 12 months to serve it on the defendant. If your 12 months are just about up, you can apply to the court to renew your Notice of Claim and extend the time allowed for serving the defendant. (Once the 12 months have gone by, your Notice of Claims expires, but you can still apply to the court to try and renew it.)

When does the defendant have to respond to your claim?

After the defendant has been served, the defendant must file a Reply. The defendant has 14 days to file a Reply if they live in BC. A defendant who is out of province has 30 days.

How can the defendant respond?

There are several ways. The defendant may:

  • agree to pay all of your claim but not right away, or
  • oppose all or part of the claim, or
  • make a claim against you, called a Counterclaim.

How do you proceed if the defendant agrees to pay your claim?

In this case, you can file a Payment Order. If you don’t agree with the timing of when the defendant agrees to pay, you can ask for a payment hearing after filing your Payment Order so the Court can set a Payment Schedule.

What happens if the defendant opposes your claim?

The defendant may file a Reply disputing all or part of your claim. The Small Claims Court registry will send you a copy of this Reply. Refer to script 167 on “Being Sued in Small Claims Court” for more on what the defendant has to do.

Once a Notice of Claim has been filed with the registry and a Reply submitted by the defendant, the registry usually sets a date for a 45-minute meeting called a “settlement conference” attended by a judge. The purpose of the settlement conference is to attempt to resolve some or all of the issues between you and the defendant before going to trial. At this conference, the judge will give their opinion of the case.

In Vancouver Robson Square registry, you and the defendant may have to attend a free session of mediation before the settlement conference. The Small Claims Rules determine whether mediation is mandatory or optional, depending on the type and amount of claim. If you must attend mediation, the mediator will try to help you and the defendant to come to an agreement about some or all of the disputed matters.

If the issues aren’t fully resolved at the settlement conference or mediation, the matter will be set for trial.

Pursuant to the Provincial Small Claims Court Pilot, the procedure is different for small claims up to $5,000 (other than personal injury claims) filed in the Vancouver Robson Square and Richmond registries. These claims go straight to a simplified one-hour trial before an experienced lawyer who is a justice of the peace (also called an “adjudicator”). There is no pre-trial settlement conference or mediation and all financial debt claims in these two registries, where the claimant is in the business of lending money, go straight to a half-hour trial.

What should you do if the defendant makes a Counterclaim against you?

You must file a Reply to the Counterclaim. You have 14 days after receiving the Counterclaim to file your Reply to it.

Can the defendant offer to resolve the claim directly with you?

In some cases, the defendant may contact you directly and offer to pay you or try to settle your claim in some way. If this happens, you’re free to come to whatever arrangement you like. If you’re happy with the defendant’s offer, you don’t have to continue with your lawsuit and can file a Consent Order or Payment Order that will end the action.

What happens if the defendant doesn’t respond in time?

If the defendant doesn’t file a Reply within the specified time limits or contact you to resolve the claim, you can file a form asking the court for a Default Order. If the claim is for a debt, the Default Order may be made without you having to go to a hearing. However, if the claim is for an amount not relating to a debt, the Small Claims Court registry must schedule a default hearing date so a judge can determine the exact amount you’re entitled to receive.

Summary

To sue a person or company in Small Claims Court, you must file a Notice of Claim with the Small Claims Court registry and serve the Notice of Claim on the person or company you wish to sue. The defendant may then contact you and offer to pay your claim. If the defendant doesn’t, the defendant has 14 days to file a Reply. After a Reply is filed, many Small Claims Court registries set a date for a settlement conference (and in some cases, mediation) to see if your claim can be resolved without going to trial. Some registries have simplified trial procedures for really small and certain financial claims, where you go straight to a short trial. If the defendant doesn’t respond to your claim or file a Reply within 14 days, you can get a default judgment against the defendant by asking for a Default Order or a default hearing date.

Where can you get more information?

  • Most of the instructions you need are on the forms found at the Small Claims Court registry or on the Small Claims Court website, which is www.ag.gov.bc.ca/courts/small_claims/.
  • If you have any questions, talk to the Small Claims Court staff or read over one of the Small Claims Court booklets available at the registry, at your local public library, and on the Small Claims Court website.
  • Also see the other Dial-A-Law scripts in this Small Claims Court series.


[updated November 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.


Personal tools
Namespaces

Variants
Actions
Site
Tools
Contributors
Print/export