Suing Someone in Small Claims Court (Script 166)

From Clicklaw Wikibooks

Before you sue—try to settle the case

This script explains how to sue in small claims court. But before you sue, try to settle the case without going to court. That can save you a lot of time and money. The small claims website starts with this suggestion and explains settlement options. They include using demand letters, online dispute resolution, mediation, arbitration, collection agencies, negotiation, and payment terms.

New process for small claims started June 1, 2017

Starting June 1, 2017, the government made important changes to small claims court. Now, where you sue depends on the amount you seek:

How do you sue in small claims court?

Fill out a document called a notice of claim, called Form 1. The notice starts the lawsuit once you file it with the court registry and deliver it to the person you’re suing. You can complete the notice in several ways, including:

In the notice of claim, describe what caused you to sue and where it happened. Say how much money you’re seeking, and any other remedies you want.

You can’t sue the federal government in small claims court. And you can’t sue for cases that involve things like defamation, land, residential tenancy, bankruptcy, estates, and builders liens. Script 165 has more on this. So does the provincial court website.

As the person who sues, 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 exactly right, you might not be able to get your money. Small claims court is less formal than supreme court, but you must still follow certain procedures closely.

What’s the time limit to sue?

The time limit to sue is called the limitation period. For most claims, you have 2 years from the day you discovered (knew, or reasonably ought to have known) all the following:

  • injury, loss or damage occurred
  • it was caused at least partly by an act or omission
  • the act or omission was that of the person you’re suing
  • court is the right place to seek a remedy

For example, you took your car for repairs but when you got it back you see that the shop damaged it. The limitation period starts when you realized these things, or when you reasonably ought to have realized them. Script 165 has more on limitation periods.

If the defendant is a person

If you are suing a person, you must use their full name on the notice of claim. Try to use their legal name that would appear on their driver’s license. If they go by a different name, you can include it after their proper name by writing “also known as”. For example, if a person goes by both their maiden name and their married name, use “also known as”. Do not include a person’s title, such as Ms. or Dr.

If the defendant is a corporation, partnership, or unincorporated business

If you’re suing a corporation, you must use its legal name on the notice of claim. To find the correct name of a corporation, you must get a company search from the Corporate Registry. You can do an online search through Corporate Online. The Registry is at 940 Blanshard Street in Victoria and its mailing address is PO Box 9431, Station Provincial Government, Victoria, V8W 9V3. You can call the Registry at 250.387.5101 for more details. The local government agent’s office or a private title search company can also do a company search.

You must get the company name right on the notice of claim. Also, some companies are subsidiaries of larger companies, or vice versa, and often these companies have similar names. You must use the exact name of the company you were dealing with when the incident you are suing for occurred. If you sue the wrong company, it’s the same as suing the wrong person, and your case (and your notice of claim) will be dismissed.

Where do you file your notice of claim?

You must file your notice of claim in the right small claims court registry. To file a claim, submit it to the court registry. If the defendant is a company, you also need to file a copy of your company search. To figure out which court registry to file your claim with, check script 165, called “What is Small Claims Court?” You must also pay a filing fee, which you may get back from the defendant if you win.

Telling the defendant that you are suing—serving the notice of claim

You serve the notice of claim on the defendant (along with a blank reply form, attached to the notice, for them to fill out). That means you must give it to the defendant.

How to serve a defendant, depends on whether the defendant lives in BC. If the defendant lives in BC, you can serve the notice of claim (after you have filed it in court) by giving the defendant a copy of it, and a blank reply form (available from the registry and on the court forms website).

If the defendant lives outside of BC, but the event that led to the lawsuit happened in BC, you can serve your notice by giving the defendant a copy of it. But in any other case, you need permission of the court registrar before you can serve a notice of claim outside BC.

How to serve the notice also depends on whether the defendant is a person, a corporation, an unincorporated business, or a partnership. For example, to serve:

  • a person over 18, you can give them the notice of claim personally, have someone else give it to them, or send it to them by registered mail.
  • a corporation, you send the notice to the corporation’s registered office by registered mail. The address of the registered office is shown on the company search you must do.
  • a partnership, you must serve one of the partners.
  • an unincorporated business, you must serve the owner.

After you serve the notice of claim, you must prove it by completing a certificate of service (Form 4).

Both the BC Ministry of Justice and the small claims rules explain how to serve documents and prove you served them. The small claims website has a checklist for serving documents, and the Law Centre at the University of Victoria has a factsheet. Also, script 165 has information on it.

How long do you have to serve your notice of claim?

After you file the 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 12-month deadline. (After 12 months, your notice of claims expires, but you can still apply to the court to renew it.)

How long does the defendant have to respond to your claim?

After a defendant is served, they have 14 days to file a reply if they live in BC. A defendant who does not live in BC has 30 days. The reply form is on the court forms website.

How can the defendant respond?

The defendant may:

  • agree to pay all your claim, but not right away
  • oppose all or part of the claim
  • sue you, called a counterclaim

What if the defendant agrees to pay your claim?

You can file a payment order. But if you don’t agree with the time 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 if the defendant opposes your claim?

The small claims court registry will send you a copy of the defendant’s reply. Script 167, called “Being Sued in Small Claims Court” explains what the defendant must do.

Settlement conference—once the defendant files a reply, the registry usually sets a date for a 45-minute meeting called a settlement conference with a judge. The purpose is to try to settle the case before a trial. You and the defendant (and your lawyers, if you have them) both attend the conference. The judge will give their opinion of the case during the conference.

Mediation—you may be able to use mediation for claims between $10,000 and $35,000, instead of suing in court. A neutral third-party tries to help both sides settle the dispute. It’s often faster and cheaper than suing. Small claims rule 7.3 deals with mediation. The mediation process is also explained on this BC government website.

Mediation is an option in all locations, but it’s not always available. For example, it’s not available for cases that can be dealt with under rule 9.2 (a summary trial for financial debt in Vancouver).

Mediation is mandatory only if one party files a notice to mediate or the court orders the parties to use it.

What if the defendant makes a counterclaim against you?

File a reply to the counterclaim within 14 days after receiving it.

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

Yes. The defendant may contact you directly and offer to pay you or settle your claim. If this happens, you may reach an agreement. If so, you don’t have to continue your lawsuit. Instead, you can file a consent order or payment order to end it. You should put any agreement in writing and have both parties sign it. You may want to speak with a lawyer before you sign such an agreement.

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

If the defendant doesn’t file a reply within the time limit or contact you to resolve the claim, you can file an application for default order (Form 5) asking the court for a default order. File it at the registry where you notice of claim was filed, along with a copy of the certificate of service (Form 4). If the claim is for a debt, the default order may be made without you even going to a hearing. But if the claim is not for a debt, the court registry must schedule a default hearing date so a judge can decide the amount you may get.

Trial

If the case is not settled at the settlement conference or mediation, it will go to trial. Script 168 explains that topic.

Simplified trial in Vancouver and Richmond

Under the Small Claims Pilot, the procedure differs for claims between $5,001 and $10,000 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 (called an adjudicator). There is no pre-trial settlement conference or mediation. Claims under $5001 can also go to a simplified trial if the Civil Resolution Tribunal cannot hear the case. But simplified trials are not used for personal injury claims or financial debt claims.

Summary trial in Vancouver

Vancouver uses a summary trial for all financial debt claims (money loans and credit-card debt) between $5,001 and $35,000. These trials are usually fast: less than 30 minutes. They use less formal rules of procedure and evidence.

Summary

To sue a person or company in small claims court, you must file a notice of claim with the court registry and serve the notice of claim on the person or company you are suing. The defendant may then contact you and offer to pay your claim. The defendant has 14 days to file a reply. After a reply is filed, many court registries set a date for a settlement conference to see if your claim can be resolved before trial. Some registries have simplified trial procedures for smaller claims 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.

More information


[updated August 2017]

The above was last reviewed for accuracy by Anna Kurt and edited by John Blois.



© 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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