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Governing Legislation and Resources for Criminal Law (1:II)

2023-10-06T20:26:45Z

Clicklaw Editor: /* A. Resources */

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = criminal}}

== A. Resources ==

=== 1. Annotated Criminal Codes: ===
* Edward Greenspan, Marc Rosenberg, & Marie Henein, eds, ''Martin’s Annual Criminal Code'', 2023 ed (Toronto: Thomson Reuters, 2022).
* Alan D. Gold, ''The Practitioners Criminal Code'', 2024 ed (Toronto: LexisNexis Canada, 2023).
* The Honourable Mr. Justice David Watt, The Honourable Madam Justice Michelle Fuerst, ''The 2023 Annotated Tremeear’s Criminal Code'', 2023 ed (Toronto: Thomson Reuters, 2022).

'''NOTE:''' All criminal lawyers carry around one of the three leading annotated criminal codes. The most commonly used is ''Martin’s''. When reviewing any case, the annotations on the section a client is charged with provide a good place to start regarding identifying the elements of the offence.

=== 2. Other Criminal Law Resources: ===
* The Honourable Mr. Justice Eugene Ewaschuk, ''Criminal Pleadings and Practice in Canada'', 3d ed (Toronto: Canada Law Book, 2022).
* The Honourable S Casey Hill, David Tanovich, & Louis Strezos, ''McWilliam’s Canadian Criminal Evidence'', 5th ed (Toronto: Canada Law Book, 2013).
* David Watt, ''Watt’s Manual of Criminal Evidence'', 2023 ed (Toronto: Carswell, 2022).
* Robert Paul Nadin-Davis & Clarey B Sproule, eds, ''Canadian Sentencing Digest Quantum Service'' (Toronto: Carswell, 1989) (also available on e-carswell).
* Francis Lewis Wellman, ''Art of Cross-Examination with the Cross-Examinations of Important Witnesses in Some Celebrated Cases'' (New York: Collier Books, 1903).
* Earl J Levy, ''Examination of Witnesses in Criminal Cases'', 3d ed (Toronto: Carswell, 1994).
* Thomas A Mauet, Donald G Casswell, & Gordon P MacDonald, ''Fundamentals of Trial Techniques'' (Toronto: Little, Brown, 2001).
* Christopher Bentley, ''Criminal Practice Manual: a Practical Guide to Handling Criminal Cases'' (Scarborough, Ont: Carswell, 2000).

=== 3. Relevant Statutes: ===
* ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html?autocompleteStr=criminal%20code%20&autocompletePos=1 Criminal Code]'', RSC, 1985, c C-46.
* ''[https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html?autocompleteStr=%E2%80%A2%09Controlled%20Drugs%20and%20Substances%20Act&autocompletePos=1 Controlled Drugs and Substances Act]'', SC 1996, c 19 (if drug offence).
* ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html?autocompleteStr=%E2%80%A2%09Canada%20Evidence%20Act&autocompletePos=1 Canada Evidence Act]'', RSC, 1985, c C-5.
* ''[https://www.canlii.org/en/qc/laws/stat/cqlr-c-c-12/latest/cqlr-c-c-12.html?searchUrlHash=AAAAAQAHY2hhcnRlcgAAAAAB&resultIndex=2 Canadian Charter of Rights and Freedoms]'', Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (particularly ss 7 – 14, 24 (1) and (2)).
* ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-1/latest/rsc-1985-c-i-1.html?autocompleteStr=%E2%80%A2%09Identification%20of%20Criminals%20Act&autocompletePos=1 Identification of Criminals Act]'', RSC, 1985, c I-1.
* ''[https://www.canlii.org/en/ca/laws/stat/sc-1998-c-37/latest/sc-1998-c-37.html?autocompleteStr=%E2%80%A2%09DNA%20Identification%20Act&autocompletePos=1 DNA Identification Act]'', SC 1998, c 37.

=== 4. Legal Aid: ===

Legal Aid BC (LABC), previously the Legal Services Society of BC, is the only source of criminal legal aid in British Columbia (BC). LABC’s purpose is to provide free representation for financially eligible accused persons (low-income individuals), who are charged with certain offences. LABC will provide a retainer to a lawyer in private practice requested by or assigned to the eligible client who will provide legal assistance on a contract basis.

A wide range of free resources covering various legal problems and legal rights are also available [https://legalaid.bc.ca/publications online] and at LABC offices.

If appropriate, the client should be advised to contact Legal Aid directly at (604) 408-2172 or 1 (866) 577-2525. See '''Chapter 23: Referrals''', or the blue pages of the phone book, for more information.

'''a) Financial Eligibility'''

LABC will grant a letter of referral to applicants who meet the financial eligibility requirements. These can be found at https://legalaid.bc.ca/legal_aid/doIQualifyRepresentation.

There is some flexibility in the requirements, subject to the discretion of the intake legal assistant assessing the application. Clients will be required to complete a means test indicating household size, income, and assets; certain expenses; and level of education. Information on how to apply can be found at https://legalaid.bc.ca/legal_aid/howToApply.

'''b) Eligible Offences and Conditions'''

Legal Aid lawyers may be able to represent an accused person in their criminal case if, after conviction (or a guilty plea) the accused would:
* be sentenced to a period of jail (including a conditional sentence);
* lose their means of earning an income; or
* face an immigration proceeding that could lead to deportation from Canada.

Legal Aid lawyers may also represent an accused person if the accused person:
* has a physical condition or disability, or a mental or emotional illness that makes it impossible for the accused to represent themselves, or
* are Indigenous and the case affects their ability to follow a traditional livelihood of hunting and fishing.

'''c) Reviewing a Decision '''

An accused who has been denied Legal Aid can have the decision reviewed where circumstances warrant it. Requests for review must be in writing, must set out the reasons for disagreeing with the decision, and must include copies of supporting documentation. Legal Aid does not consider any requests received after 30 days from the date of the intake legal assistant’s decision. Information on how to apply for a review can be found at https://legalaid.bc.ca/about/applyForReviewOfDecision.

=== 5. Lawyer Referral Service ===

The accused may call (604) 687-3221 or 1 (800) 663-1919 (for those outside the Lower Mainland) to reach the service, where an operator will provide the name of a lawyer who practices criminal law. The client should then call the lawyer to make an appointment to receive a free 15-minute consultation. The client will have to negotiate the fee for subsequent sessions at their first meeting with the lawyer. See '''Chapter 23: Referrals''' for more information.

=== 6. Everyone Legal Clinic: ===

The Everyone Legal Clinic provides fixed-fee criminal defence at a lower cost to individuals facing summary conviction offences. Clients can request a consultation appointment with an articling student online at https://app.qase.net/create_elc_referral. More information, including rates, can be found at https://everyonelegal.ca/services-for- everyone/criminal-defence.

=== 7. Duty Counsel: ===

If the accused does not have a lawyer (either retained privately or through Legal Aid) Duty Counsel (lawyers paid by the government) are there to assist unrepresented people (whether in custody or out of custody) by providing them with basic legal information and advice, and to assist them in conducting basic court appearances. Duty Counsel is often the first lawyer to give legal advice to people in custody. As Duty Counsel is there to assist anyone on a given day, they cannot conduct trials or other lengthy matters. Duty counsel can help the accused by:
* giving advice about the charges and court procedures;
* conducting a bail hearing;
* entering a guilty plea and providing background information about the accused for the purposes of sentencing; and
* talking to the accused about possible ways of resolving the file such as through diversion.

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Introduction to Small Claims (20:I)

2023-09-20T18:30:45Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicles accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

[[File:LSLAP 20 I small claim process image 1.png|alt={Small claim process}]] 
''Figure from Provincial Court of BC website: https://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters''

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see https://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters/chief-judge-practice-directions and Appendix “A” of NP 28: https://www.provincialcourt.bc.ca/downloads/Practice%20Directions/NP28.pdf

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

{{LSLAP Manual Navbox|type=chapters15-23}}

File:LSLAP 20 I small claim process image 1.png

2023-09-20T18:29:45Z

Clicklaw Editor:

LSLAP Program Information for Small Claims (20:App M)

2023-09-19T19:24:02Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

This chapter is specific to LSLAP clinicians. It sets out internal LSLAP practice and policy regarding Small Claims.

== 1. Representation (LSLAP Assistance) ==

The general rule is that parties at the CRT are not allowed to have a representative, without asking for CRT permission, unless they are a minor or someone with impaired mental capacity. If a party is wanting to request a representative, they can request one in the online intake system or by filling out a Representation Request Form.

If a party is using a lawyer as their representative, the lawyer will be able to communicate with the CRT on their behalf.

CRT parties can also hire a lawyer and use them as a helper. If they are using a lawyer as a helper, the lawyer will not be able to speak on their behalf. The CRT also won’t be able to talk to your helper about your case; the tribunal’s communications are with the parties themselves. A helper can help them keep organized, take notes, provide you with emotional support, help you fill out online forms, as well as other tasks. For LSLAP’s purposes, we can provide legal advice to the party while the CRT matter is underway. This includes advising how to draft pleadings, corresponding with the other party, advising on settlement offers, and drafting submissions that the party can present on their own to the CRT.

{{LSLAP Manual Navbox|type=chapters15-23}}

Small Claims Appeal (20:App L)

2023-09-19T19:23:17Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

'''Note''': This information was taken with permission from the Small Claims Factsheet 14 produced by the Law Centre at the University of Victoria Faculty of Law.

There are two main grounds of appeal: an error of fact and an error of law. In order to appeal a decision from the Small Claims Court, one must argue that the Judge made either an error of fact or an error of law. The following provides a step by step guide on how to appeal a decision from Small Claims Court.

=== Step 1:===
'''Obtain a copy of the written Order made by the Small Claims Court Judge which is being appealed.'''

If you do not already have a copy of the Order that you want to appeal, you should go to the Court Registry in the Court House where the Order was made. Ask the Clerk for a copy. There may be a small photocopying fee which you will have to pay.

=== Step 2:===
'''Obtain and fill in a Notice of Appeal form.'''

=== Step 3:===
'''File the Notice of Appeal at the Supreme Court Registry closest to the place where the Small Claims Court Order was made.'''

=== Step 4:===
'''Pay the $200 Filing Fee (''Supreme Court Civil Rules'', BC Reg 168/2009, Appendix C) and $200 Security for Costs (''SCA'', s 8(1)).'''

Also, deposit with the Court Registry the amount of money the Small Claims Court Judge ordered to be paid to the Respondent. Alternatively, bring an application to a Judge to reduce the amounts payable.

If you cannot afford the filing fee, you may want to apply to a Supreme Court Judge to reduce the amount to be paid.

To succeed in reducing the filing fee, you must be able to prove that you are indigent (see ''Supreme Court Civil Rule'' 20 -5). The BC Court of Appeal has considered the meaning of that word in a case called ''[http://canlii.ca/t/1dzv9 Johnston v. Johnston]''. The Court said "indigent" means "a person who has some means but such scanty means that [they are] needy and poor." The Court refused to approve any particular standard for determining whether a person is "indigent", and each case will be looked at individually. However, if you receive social assistance or persons with disabilities benefits and you prove this to the court, you are likely to be declared indigent.

If you cannot afford to pay the security for costs (or the amount required to be paid to the Respondent by the Small Claims Court Order) you may want to apply to a Supreme Court Judge to reduce the amounts to be paid.

It is not clear what test the Court will apply to succeed in an application to reduce these amounts. However, it is clear that evidence of an inability to pay the amount required will be vital.

=== Step 5:===
'''File the Notice of Appeal in Small Claims Court on the same day it was filed in Supreme Court.'''

When you file the Notice of Appeal, be sure to attach the Supreme Court Practice Direction, Standard Directions for Appeals from Provincial Court pursuant to the ''Small Claims Act''.

Section 7 of the ''Small Claims Act'' says that the Notice of Appeal must be filed in the Small Claims Court Registry on the same day that it is filed in the Supreme Court Registry. However, in a case decided in 1993 called ''[http://canlii.ca/t/1dk56 First City Trust v. Bridges Café Ltd.], [1993] BCJ No 1353'', the court recognized that in certain places in British Columbia the distance between the location of the Supreme Court Registry and the Small Claims Registry was so great as to make it very difficult to comply with s 7. In that case, the filing took place on the next day. The Court held that the right of appeal would not be lost, even if the filing did not occur on the same day, as long as the Respondent was not prejudiced. Therefore, every reasonable effort should be made to file the Notice of Appeal in the Small Claims Court Registry on the same day or at the latest the day after the Notice of Appeal was filed in Supreme Court Registry.

=== Step 6:===
'''Within 7 days of filing the Notice of Appeal, serve the Notice of Appeal on each person who was a party to the lawsuit in Small Claims Court who will be affected by the Appeal.'''

If you need more time to serve the Notice of Appeal, you must bring an application to a Supreme Court Judge. See Step 4 above.

The Appellant can serve the Notice of Appeal, or can have a process server or a friend give the documents to the Respondent. If you decide on using a process server, look in the yellow pages under "Process Servers." To save money you should telephone several process servers to get quotes about how much it will cost to have the documents served because prices vary. You should also confirm that the process server will provide you with a sworn Affidavit of Service. An Affidavit of Service is a document that proves to the Court that the documents were served on the Respondent.

The person who is going to serve the document should be given two copies of the document. They should compare the two copies to ensure that they are the same. This is because one copy will be given to the Respondent to be served and the second copy will be attached to an Affidavit of Service. In the Affidavit of Service the person serving the document will be swearing that they gave a copy of the document to the Respondent. Unless they first compare the documents, they will not know that the copy of the documents attached to the Affidavit of Service are the same as those given to the Respondent.

If the person delivering the documents does not already know the Respondent, they should confirm that the documents are being given to the right person. This can be done simply by asking the name of the person being given the documents.

After leaving a copy of each document with the Respondent to be served, the person serving the document must make a note of the time, date, and place (street address, city, and province) where the documents were served. This information will be needed to prepare an Affidavit of Service

=== Step 7:===
'''Apply to the Registrar for a date for hearing the Appeal.'''

That date cannot be less than 21 days after applying for the date. Before the Registrar will set a hearing date, the Appellant must prove the money to be deposited in Step 4 has been deposited (or an Order has been obtained which reduces the amount required to be deposited).

=== Step 8:===
'''Serve the Notice of Hearing of Appeal on the Respondent.'''

Also, serve any Order obtained under Step 4. Be sure to act quickly. There is a deadline which must be met (unless a Judge grants an Order extending the time). See Step 10 for instructions on how to serve the documents.

=== Step 9:===
'''The Appellant must order transcripts of the oral evidence given at the Small Claims Court trial and the Judge's reasons for judgment.'''

The Appellant must pay for a copy of the transcript for the Court and one for each party to the appeal. Act quickly.

Transcripts are prepared by Court Reporters. You will have to make arrangements with the Court Reporters who work in your area of the Province to prepare the transcripts that you will need. To find out who may do the work in your area you may wish to speak to the Court Registry staff. Alternatively, you may wish to telephone Court Reporters listed in the yellow pages under "Reporters-Court & Convention."

=== Step 10:===
'''Within 14 days of filing the Notice of Appeal, the Appellant must prove to the Registrar that the transcript has been ordered and that the Notice of Appeal, Notice of Hearing of Appeal, and the Order reducing the amount of money to be paid under Step 4 (if any) has been served on the Respondent.'''

See the Practice Direction of the Chief Justice regarding Standard Directions for Appeals from Provincial Court Pursuant to the Small Claims Act, which can be found at http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/civil/PD%20-%2021%20Standard%20Directions%20for%20Appeals%20from%20Provincial%20Court%20-%20Small%20Claims%20Act.pdf.

To prove that the Notice of Appeal, Notice of Hearing of Appeal and Order (if any) have been served, you will need to file an Affidavit of Service. A process server usually will prepare and have sworn an Affidavit of Service as part of the work they do for you. If you or a friend serve the documents, you will have to prepare your own Affidavit of Service.

=== Step 11:===
'''Prepare a Statement of Argument.'''

Before you can prepare your Statement of Argument you must first pick up the transcript from the Court Reporter. Next, you must carefully read your copy of the transcript. You should make a note of the pages in the evidence or the Judge's reasons for judgment that contain the error in fact or law that you say should result in your appeal being successful. You should also look at copies of any exhibits which were given to the Judge during the Small Claims trial (like contracts, photos, reports, affidavits) to see if the exhibits contain evidence which would help your appeal.

When completing a Statement of Argument, the first step is to decide whether parts of the Small Claims Order are acceptable, or whether you do not agree with the entire Order. Then, on the Statement of Argument, list what you do not agree with.

Then, on the Statement of Argument you should list the evidence and the page and line numbers in the transcript, which will show the Supreme Court Judge where the Small Claims Court Judge made an error. This will become more clear to you if you view the sample and complete your Statement of Argument in the same way. The sample is based on the case described earlier in this Factsheet in which the Judge failed to apply the ''Limitation Act''.

Finally, in the portion of the Statement of Argument dealing with the nature of the Order you are seeking, you should state what you want the Judge to do. For example, if you brought a lawsuit in Small Claims Court and you lost, you may want the Supreme Court Judge to make an Order for what you sued for. So, if you were owed money and you sued for $8000 and you lost, you would ask in your Statement of Argument for an Order that the Respondent pay you $8000. On the other hand, if you were the Defendant in the same lawsuit and you lost at the trial, you might want an Order dismissing the claim.

It would be very useful to get some legal advice when filling in the Statement of Argument.

=== Step 12:===
'''Within 45 days of filing the Notice of Appeal, the Appellant must:'''

#File at the Supreme Court Registry the original copy of the transcript;
#File a Statement of Argument; and
#Serve a copy of the transcript and Statement of Argument on the Respondent. See the Practice Direction of the Chief Justice regarding Standard Directions for Appeals from Provincial Court Pursuant to the Small Claims Act, which can be found at http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/civil/PD%20-%2021%20Standard%20Directions%20for%20Appeals%20from%20Provincial%20Court%20-%20Small%20Claims%20Act.pdf

After you have prepared the Statement of Argument make a photocopy for yourself and each Respondent. Take the original and each copy, plus a copy of the transcript to the Supreme Court Registry. The Registry will date stamp the Statement of Argument. You can then serve the Statement of Argument and transcript on the Respondent.

=== Step 13:===
'''At this point the Respondent will have to prepare a Statement of Argument.'''

The Respondent must file the Statement of Argument and deliver a copy to the Appellant not less than 14 days before the hearing of the appeal. A Respondent's Statement of Argument is a document which sets out:

#What paragraphs the Respondent disagrees with in the Appellant's argument;
#Why the Respondent disagrees with the Appellant's argument; and,
#What Order the Respondent would like to see the Supreme Court Judge make.

The Respondent should start to prepare the Respondent's Statement of Argument by first carefully reading the Appellant's Statement of Argument. Note where you think errors were made. The Respondent should then read the transcript and review all the exhibits and list the page and line on the transcript that supports the Respondent's case. Then fill in the form in a manner similar to that in which the Appellant's Statement of Argument was completed.

It would be very useful to get some legal advice when filling in the Statement of Argument.

=== Step 14:===
'''Prepare for the hearing.'''

The hearing will not be a new trial. A Judge could order a new trial at the end of the hearing, but the trial would occur at a later date. Thus, the hearing will have a different format than what you experienced at the trial. For example, no witnesses will be called to give evidence. Instead, what usually happens is that the Appellant first tells the Judge what the trial was about. The Appellant then tells the Judge what decision(s) made by the Small Claims Court Judge that the Appellant disagrees with and why. The Appellant may go through the Appellant's argument set out in the Statement of Argument. The Judge might read the portions of the transcript and the exhibits which the Appellant refers to in the Statement of Argument. The Judge may also ask the Appellant questions. The Appellant might conclude by noting the Order that the Appellant would like the Judge to make.

It would then be the Respondent's turn. The Respondent might take the Judge through the Respondent's argument asset out in the Respondent's Statement of Argument. The Respondent would answer questions the Judge had. The Respondent would conclude by telling the Judge what Order the Respondent would like the Judge to make.

To prepare for this type of hearing you should carefully review your Statement of Argument and any exhibits that you are going to refer to. You might also make notes of what you want to say.

Small Claims appeals do not happen often. However, if you can watch one before your case occurs it will help to give you a good idea of what is likely to happen. To find out if an appeal will happen before your case goes ahead, call the Supreme Court Registry and ask to speak to the Trial Coordinator.

=== Step 15:===
'''Appear in Court.'''

Make sure you bring your copy of the Statement of Argument, transcript, and exhibits to Court with you on the day of your hearing. Arrive earlier than the time appointed for the hearing to begin.

Find the trial list, which will usually be posted somewhere in the Court building. This list tells which cases are to be tried on that date and in which particular Courtroom they will take place. If your case is not on the list, then you should immediately check with the Court Clerk or Registry. Otherwise, go to the proper Courtroom and be seated in the gallery.

When your case is called move forward to the Counsel table. Stand while speaking to the Judge. Introduce yourself to the Court. In Supreme Court, Judges are officially called "Justices" and can be referred to as "Justice", "Madam Justice", or "Mr. Justice".

The Judge probably will have read both Statements of Argument and will have some familiarity with the case. The Appellant will then present their case first, followed by the Respondent.

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Small Claims Payment Hearing Checklist (20:App K)

2023-09-19T19:22:08Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Both the debtor and the creditor can request a payment hearing, or a judge may order one. A creditor may request a payment hearing to ask the debtor about their ability to pay or to disclose the debtor’s assets so they may be seized or garnished. Either the creditor or the debtor may request a payment hearing to propose a payment schedule or changes to a payment schedule. Due to COVID-19, the procedure has changed. Please consult https://www.provincialcourt.bc.ca/COVID19 for updates in the protocol.

== Creditor Checklist ==

=== 1. Before the Payment Hearing: ===

* If you are the party requesting a payment hearing, you must complete and file a summons in Form 12 at the registry: http://www.smallclaimsbc.ca/court-forms.
*If the debtor is a corporation, you may name an officer, director, or employee to appear and give evidence on behalf of the debtor (''SCR'', Rule 12(5)).
* After you file the summons, you must serve it on the debtor at least 7 days before the date of the payment hearing (''SCR';, Rule 12(7)).

If the person who serves the summons on the debtor will not be at the hearing to provide oral evidence, you should have them prepare an affidavit of service, available at the website above, and file it at the registry in case the debtor does not show up to the hearing; otherwise, you will not be able to get a warrant for their arrest.

=== 2. At the Payment Hearing: ===

*Bring a list of questions you wish to ask the debtor about their assets. Lists of the types of questions that may be asked can be found at: http://www.lawsociety.bc.ca/docs/practice/checklists/E-5.pdf (designed for Supreme Court but may be adapted for Small Claims).
*Be prepared to propose a payment schedule and defend it or argue why one should not be ordered.

=== 3. After the Payment Hearing: ===

*If the debtor misses a payment, the balance of the judgment becomes due immediately and you may proceed to collections. See '''Chapter 10: Creditor’s Remedies and Debtors’ Assistance''' for information on collections procedures.

== Debtor Checklist ==

=== 1. Before the Payment Hearing: ===

*If you are the party requesting a payment hearing, you must complete and file a notice in Form 13 at the registry: http://www.smallclaimsbc.ca/court-forms.
*After you file the notice, you must serve it on the creditor at least 7 days before the date of the payment hearing (Rule 12(11)).
*If the person who serves the summons on the creditor will not be at the hearing to provide oral evidence, you should prepare a certificate of service (Form 4), available at http://www.smallclaimsbc.ca/court-forms, and file it at the registry in case the creditor does not show up to the hearing.

=== 2. At the Payment Hearing: ===

*Be prepared to answer questions about your finances such as contained in the lists in Creditor Checklist – Section 2 above.
*Bring financial records and evidence of income and assets, including:
**Bank records
**Credit-card statements
**Tax returns and supporting documents
**Property, sales of property, and mortgages
**Receipts for insurance, medical bills, and utilities
**RRSP, TSFA, and other investment statements
**Debts you owe and debts that are owed to you (including future debts)
**Assets you have disposed of since the claim arose
**Employment and pay-stubs
**Evidence of means that you have or may have in the future of paying the judgment
* Prepare a statement of finances, available at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms
*Be prepared to suggest a payment schedule or changes to the payment schedule that you can manage
*Be prepared to argue why your financial circumstances justify the schedule or changes you are proposing
*If you are on welfare or other income assistance, be sure to bring this to the judge’s attention

=== 3. After Judgement: ===

*If you are having difficulty managing your debts, see [[Introduction_to_Creditors%27_Remedies_(10:I) | Chapter 10: Creditor’s Remedies and Debtors’ Assistance]].

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Small Claims Settlement Conference Preparation Checklist (20:App J)

2023-09-19T19:20:57Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Settlement Conference Preparation Checklist

:1. Be prepared to define the issues
:2. List who will attend settlement conference
:3. Authority to settle: obtain instructions and ensure a representative with authority to settle is in attendance
:4. List who will speak to what issues
:5. Witnesses: how many and names/evidence
:6. Expert witnesses: bring report or summary of opinion expected
:7. Expected schedule for delivery of expert reports
:8. Documents to be sought and schedule for delivery
:9. List documents to bring
:10. Consider admissions or seek agreed facts, or alternative methods of proof
:11. Time estimate for trial, available dates for counsel and witnesses
:12. Other orders: in advance of trial, consider if a separate hearing will be required for one or more of the following:
::(a) summary judgment or dismissal
::(b) production of other documents or evidence
::(c) addition of parties or amendment of pleadings
::(d) change of venue
::(e) consolidation of claims, joining trials
::(f) inspection or preservation of property
::(g) independent medical examination
:13. Ask the judge to review the prospect of the penalties in Rules 10.1, 20(5) and 20(6)

:'''SOURCE:''' ''Small Claims Court - 1994'', Continuing Legal Education Society Manual.

:'''NOTE:''' The Small Claims BC website has its own [https://smallclaimsbc.ca/sites/default/files/2021-07/Settlement%20Conference%20Checklist%20-%20NEW.docx.pdf Settlement Conference Checklist]

:'''NOTE:''' For '''trial conferences''' under the pilot project in Vancouver (Robson Square), at least 14 days in advance of the conference, each party is required to complete a Trial Statement (Form 33) and file it, along with '''all relevant documents''', at the registry (Rule 7.5(9)). Each party must serve the other parties to the claim with a copy of the trial statement and attachments at least 7 days before the trial conference (Rule 7.5(10)).

{{LSLAP Manual Navbox|type=chapters15-23}}

Civil Resolution Tribunal Fees (20:App I)

2023-09-19T19:19:51Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== 1. Fee Waiver ==

If a tribunal form or rule indicates a fee is required in order to take a step, the fee shown in the CRT Fees must be paid before the step will be completed. A claimant who cannot afford to pay a fee can ask the tribunal to waive payment of fees by completing the steps required by the Fee Waiver Request Form, and providing any other information requested by the tribunal. In deciding a request to waive the payment of fees, the tribunal will consider the person’s ability to pay, based on the information about that person’s financial situation. If the tribunal decides that a person should not have qualified for a fee waiver, the tribunal may order that person to pay the fees. The Fee Waiver Request Form can be found at the following link: https://civilresolutionbc.ca/resources/forms/#apply-for-crt-dispute-resolution.

If a dispute is not resolved by agreement, and a tribunal member makes a final decision, the unsuccessful party will be required to pay the successful party’s tribunal fees and reasonable dispute-related expenses unless the tribunal decides otherwise.

This can include some or all of the following:

* any tribunal fees paid by the other party in relation in the dispute,
* any fees and expenses paid by a party in relation to witness fees and summonses (for a summons fee to qualify for a Fee Waiver, a summons must be reasonably issued. The CRT’s processes are relatively informal and flexible, and it is usually unlikely that a party would need to incur a formal expense of a summons), and
* any other reasonable expenses and charges that the tribunal considers directly related to the conduct of the tribunal dispute resolution process.

Except in extraordinary cases, the tribunal will not order one party to pay to another party any fees charged by a lawyer or another representative in the tribunal dispute process.

== 2. Small Claims Fees ==

==== a) Application for Dispute Resolution - Claims of $3,000 or less ====
#Online: $75
#Paper: $100
==== b) Application for Dispute Resolution - Claims of $3,000-5,000 ====
#Online: $125
#Paper: $150
==== c) For filing a Dispute Response ====
#Online: $0
#Paper: $25
==== d) For filing a counterclaim or third-party claim - Claims of $3,000 or less ====
#Online: $75
#Paper: $100
==== e) For filing a counterclaim or third-party claim - Claims of $3,000-5,000 ====
#Online: $125
#Paper: $150
==== f) To request a default decision ====
#Online: $25
#Paper: $30
==== g) Filing for a Consent Resolution Order ====
#Online: $25
#Paper: $25
==== h) Requesting a Tribunal Decision Process (hearing) ====
#Online: $50
#Paper: $50
==== i) Requesting a default decision to be set aside ====
#Online: $50
#Paper: $50

== 3. Motor Vehicle Injury Fees ==

==== a) Application for Dispute Resolution (Damages & Liability) ====
#Online: $125
#Paper: $150
==== b) Application for Minor Injury Determination ====
#Online: $75
#Paper: $100
==== c) Application for Accident Benefits claim ====
#Online: $75
#Paper: $100
==== d) Application for Dispute Resolution (Damages & Liability) + Minor Injury Determination and/or Accident Benefits claim ====
#Online: $125
#Paper: $150
==== e) To respond to a claim ====
#Online: $25
#Paper: $25
==== f) Tribunal Decision for Minor Injury Determination ====
#Online: Free
#Paper: Free
==== g) Tribunal Decision for Dispute Resolution (Damages & Liability) + Minor Injury Determination and/or Accident Benefits claim ====
#Online: $50
#Paper: $50

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Small Claims Court Fees (20:App H)

2023-09-19T19:17:51Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== 1. Fee Waiver ==

There are no settlement, trial conference or trial scheduling fees, unless an adjournment is requested. If a trial date is reset less than 30 days before the date of the proceeding, the party adjourning the trial must pay $100 to the court. This fee does not apply if the matter must be reset due to the unavailability of a judge, or if the party requesting the change was not notified of the trial date at least 45 days in advance (Rule 17(5.2)). There are no fees for “interlocutory” applications. There are fees for some collection orders. Filing fees, interest, disbursements and, in most cases, reasonable expenses may be recovered from the unsuccessful party (Rule 20(2)). Legal (i.e. a lawyer’s) fees are not recoverable. If a party cannot afford the court’s fees, they may apply to the registrar to be exempt from paying the fees (Rule 20(1)) by completing a Form 16 (Rule 16(3)).

== 2. Common Fees ==

==== a) For filing a notice of claim ====
#For claims up to and including $3,000: $100
#For claims over $3,000: $156

==== b) For filing a reply, unless the defendant has agreed to pay all of the claim ====
#For claims up to and including $3,000: $26
#For claims over $3,000: $50

==== c) For filing a counterclaim or a revised reply containing new counterclaim ====
#For counterclaims up to and including $3,000: $100
#For counterclaims over $3,000: $156

==== d) For filing a third party notice ====
:$25

==== e) For resetting a trial or hearing with less than 30 days’ notice before the date of the proceedings as set on the trial list unless the matter must be reset due to the unavailability of a judge ====
:$100

==== f) For personal service of a sheriff ====
#For receiving, filing, personally serving one person, and returning the document together with a certificate or affidavit of service or attempted service: $100
#For each additional person served at the same address: $20
#For each additional person served not at the same address: $30

For a full list of fees see the '''Small Claims Rules Schedule A:'''
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/261_93_05#ScheduleA

{{LSLAP Manual Navbox|type=chapters15-23}}

Small Claims Court Fees (20:App H)

2023-09-19T19:17:05Z

Clicklaw Editor:

{{LSLAP Manual TOC|expanded = smallclaims}}
{{REVIEWED LSLAP | date= June 24, 2023}}

== 1. Fee Waiver ==

There are no settlement, trial conference or trial scheduling fees, unless an adjournment is requested. If a trial date is reset less than 30 days before the date of the proceeding, the party adjourning the trial must pay $100 to the court. This fee does not apply if the matter must be reset due to the unavailability of a judge, or if the party requesting the change was not notified of the trial date at least 45 days in advance (Rule 17(5.2)). There are no fees for “interlocutory” applications. There are fees for some collection orders. Filing fees, interest, disbursements and, in most cases, reasonable expenses may be recovered from the unsuccessful party (Rule 20(2)). Legal (i.e. a lawyer’s) fees are not recoverable. If a party cannot afford the court’s fees, they may apply to the registrar to be exempt from paying the fees (Rule 20(1)) by completing a Form 16 (Rule 16(3)).

== 2. Common Fees ==

==== a) For filing a notice of claim ====
#For claims up to and including $3,000: $100
#For claims over $3,000: $156

==== b) For filing a reply, unless the defendant has agreed to pay all of the claim ====
#For claims up to and including $3,000: $26
#For claims over $3,000: $50

==== c) For filing a counterclaim or a revised reply containing new counterclaim ====
#For counterclaims up to and including $3,000: $100
#For counterclaims over $3,000: $156

==== d) For filing a third party notice ====
:$25

==== e) For resetting a trial or hearing with less than 30 days’ notice before the date of the proceedings as set on the trial list unless the matter must be reset due to the unavailability of a judge ====
:$100

==== f) For personal service of a sheriff ====
#For receiving, filing, personally serving one person, and returning the document together with a certificate or affidavit of service or attempted service: $100
#For each additional person served at the same address: $20
#For each additional person served not at the same address: $30

For a full list of fees see the '''Small Claims Rules Schedule A:'''
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/261_93_05#ScheduleA

{{LSLAP Manual Navbox|type=chapters15-23}}

Causes of Action (20:App G)

2023-09-19T19:15:22Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

The cause of action is the claimant’s reason for bringing a suit against the defendant. While there must always be a cause of action, in Small Claims it is generally sufficient to cite the facts; Small Claims judges and CRT tribunal members will take a liberal view of pleadings and allow litigants to assert claims in non-legalistic language. However, the judge must still be able to find a cause of action in the facts the claimant alleges. Potential claimants should therefore review the following, non-exhaustive list of causes of action to determine if they have a valid claim. Claimants may claim for more than one cause of action on a notice of claim and are advised to do so if they believe more than one cause of action applies or are not sure which one is valid; it is easier to name superfluous causes of action on the notice of claim than to get the claim amended after filing it. The following causes of action may be brought in Small Claims unless the amount claimed is over $35,000 or it states otherwise in the list. They are organized into 3 categories: (1) common; (2) rare; and (3) see a lawyer.

== Defences ==

For each cause of action there are usually a number of possible defences. Both Claimants and Defendants should be aware of the defences. Below are defences to some of the more common causes of action.

=== 1) Common causes of action ===

==== a) Breach of Contract ====
Contract law governs voluntary relationships between parties. It is a complicated and nuanced area of the law. To bring a claim for breach of contract, a party must demonstrate that the other party failed to perform a contractual obligation. Depending on the type of term that is breached, the other party may be able to “terminate” the contract. Terms that go to the heart of a contract are usually called “conditions”. Breach of a condition by one party entitles the other party to terminate the contract and end their obligations. A party is also able to terminate the contract in the event of a fundamental breach, which is a breach so significant that it deprives the innocent party of the entire benefit of the contract [https://canlii.ca/t/jdvb9 Svenson v. Powell, 2021 BCCRT 318]. Less important terms are called “warranties”. Breach of a warranty does not give the other party a right to terminate. However, the party not in breach can still sue the other party for breach of contract [https://canlii.ca/t/jmq7t Ketchum v. Nordblad, 2022 BCCRT 223].

===== '''Defences:''' =====
#'''No consideration:''' In order for a promise or any other contractual obligation to be enforceable by courts, there must be consideration. Consideration is what is given in exchange for a promise that makes the promise binding. If there is no consideration for a promise, the promise will not be enforced by the courts, even if the parties have an otherwise valid contract.
#'''Void contract:''' A contract can be void and therefore unenforceable for several reasons, including lack of mental capacity, uncertainty of terms, illegality.
#'''Unconscionability:''' A contract is said to be unconscionable and therefore unenforceable where the circumstances surrounding the creation of the contract gave rise to a grave inequality in bargaining power between parties. This is complicated area of contract law, and legal advice should be sought.
#'''Misrepresentation:''' If the other party made a statement to you before the contract came into existence that you relied on on entering the contract and that turned out to be false, you may be able to have the contract set aside.
#'''Frustration:''' frustration occurs when an unforeseen event renders contractual obligations impossible or radically changes the primary purpose of the contract. Frustration is also another complicated area in contract law. Legal advice should be sought.
#'''Undue Influence:''' If one of the parties to a contract was unduly influenced by someone else (either the other party of the contract or a third party), the contract can be set aside on the grounds that the unduly influenced party had their consent vitiated due to an inability to exercise their independent will. This is a complicated area of contract law, and legal advice should be sought.

==== b) Breach of Employment Contract (implied terms) ====
The courts cannot enforce statutory rights such as those found in the ''Employment Standards Act'', as the Employment Standards Branch was created to rule on these types of claims and has exclusive jurisdiction over them. However, many parallel rights exist at common law and may be enforced by the courts. At common law, employment contracts contain numerous implied terms that are actionable through Small Claims, such as the requirement to give reasonable notice or payment in lieu upon the termination of an employee. Many employment contracts include express terms regarding notice which can override common law implied terms.

The fact that no written employment contract was signed does not disqualify an employee or former employee from claiming for breach of these terms. This is because an employee who is an "employee" under employment standards legislation will be entitled to the benefit of the statutory minimum notice provisions [https://www.canlii.org/en/bc/bcsc/doc/1989/1989canlii2778/1989canlii2778.html?searchUrlHash=AAAAAQBVU3VsZW1hbiB2LiBCcml0aXNoIENvbHVtYmlhIFJlc2VhcmNoIENvdW5jaWwgKDE5ODkpLCAzOCBCLkMuTC5SLiAoMmQpIDIwOCAoQi5DLiBTLkMuKQAAAAAB&resultIndex=1|''Suleman v. British Columbia Research Council'' (1989), 38 B.C.L.R. (2d) 208 (B.C. S.C.)]; reversed on other grounds [https://www.canlii.org/en/bc/bcca/doc/1990/1990canlii746/1990canlii746.html|(1990), 52 B.C.L.R. (2d) 138 (B.C. C.A.)]. See [[Introduction_to_Employment_Law_(9:I)|Chapter 9: Employment Law]] for more details.

===== '''Defences:''' =====
#'''Just cause:''' If an employer terminates an employee for just cause the employer is not required to give the terminated employee reasonable notice or pay in lieu. The onus to prove just cause is on the employer, and the standard is generally hard to meet. See [[Foreword_on_Employment_Law_(9:I) | Chapter 9 – Employment Law]] for more details.

==== c) Debt ====
Debt claims arise where the defendant owes the complainant a specific sum of money, often for a loan or for unpaid goods or services. There may be some overlap between debt and breach of contract.

'''Defences''': As there likely will be some overlap between debt and breach of contract, see the defences above under breach of contract.

=== 2) Rare Causes of Action ===

==== a) Breach of Confidence ====
Breach of confidence occurs when the defendant makes an unauthorized use of information that has a quality of confidence about it and was entrusted to them by the claimant in circumstances giving rise to an obligation of confidence.

==== b) Nuisance ====
Nuisance may be private or public. Private nuisance is defined as interference with a landowner or occupier’s enjoyment of their land that is both substantial and unreasonable. It can include obnoxious sounds or smells or escaping substances but does not usually arise from the defendant’s normal use of their own property. An interference with the enjoyment of land is “substantial” if it is not trivial; that is, it amounts to something more than a slight annoyance or trifling interference. Whether the interference is “unreasonable” depends on the circumstances. Factors that courts will consider (but are not bound to) in assessing reasonableness include the seriousness of the interference, the neighbourhood and surrounding area, and sensitivity of the plaintiff.

Public nuisance may be thought of as a nuisance that occurs on public property or one that affects a sufficient number of individuals that litigating to prevent it becomes the responsibility of the community at large.

==== c) Trespass to Chattels ====
Where the defendant interferes with the claimant’s goods without converting them to the defendant’s personal use.

==== d) Trespass to Land ====
Trespass to land is actionable even where it occurred by the defendant’s mistake. The claimant does not need to show a loss, although their award may be reduced commensurately if the trespass does not cost them anything.

==== e) Conversion ====
Conversion is defined as wrongful interference with the goods of another in a manner inconsistent with the owner’s right of possession. This includes theft; it also includes instances where the defendant genuinely believes the goods belong to them, even if they purchased them innocently from a third party that stole them. It also applies when the defendant has sold the goods or otherwise disposed of them. The remedy is usually damages for the value of the goods and possibly for losses incurred by the detention of the goods. The value of the goods is assessed from the time of the conversion.

==== f) Unjust Enrichment ====
Where the defendant was enriched by committing a wrong against the claimant, the claimant suffered a corresponding loss, and there was no juristic reason for the enrichment.

=== 3) Causes of action to see a lawyer about ===

==== a) Assault ====
Contrary to its criminal law equivalent, civil assault is defined as intentionally causing the claimant to have reasonable grounds to fear immediate physical harm. Mere words or verbal threats are not sufficient; there must be some sort of act or display that suggests the defendant intends to carry through with their threat; banging on a door or raising a fist may suffice.

==== b) Battery ====
Battery is defined as any intentional and unwanted touching, including hitting, spitting on the claimant or cutting their hair.

====='''Defences:'''=====
#'''Lack of Intent:''' Battery is an intentional tort which means that the plaintiff must prove the defendant acted with intent in committing battery. The defendant need not intend to cause the plaintiff harm. Rather intent refers to the desire to engage in whatever act amounts to battery. If the defendant can show that they did not act with intent, the claim for battery will unlikely be successful. For example, if the physical contact was involuntary or an accident.
#'''Self-defence:''' The defendant can defeat a battery claim if they can show that the battery was an act of self-defence. There are three basic elements to self-defence which the defendant must prove:
:::(i) You honestly and reasonably believed that you were being or about to be subject to battery;
:::(ii) There was no reasonable alternative to the use of force; and
:::(iii) The use of force was proportional to the actual or perceived threat.

==== c) Breach of Privacy ====
Privacy rights are governed by the ''Privacy Act'', RSBC 1996, c 373. Two common law causes of action are codified under this act:

*Intrusion upon seclusion: includes spying upon, observing or recording a person where they have a reasonable expectation of privacy.
*Appropriation of likeness: where a person’s personal image, including portraits, caricatures, photos or video footage, are used for commercial gain without their consent.

Breach of privacy is outside the jurisdiction of Small Claims Court.

==== d) Defamation ====
Defamation, libel and slander are outside the jurisdiction of Small Claims Court.

==== e) Detinue ====
Detinue occurs when the defendant possesses goods belonging to the claimant and refuses to return them. There is some overlap between detinue and conversion, but conversion still applies where the defendant no longer has goods, while detinue generally does not. The remedy for detinue may be the return of the goods or damages for the value of the goods and possibly for losses incurred by the detention of the goods. The value of the goods is assessed at the time of the trial.

==== f) False Imprisonment/False Arrest ====
Where a person is illegally detained against their will. Peace officers have broad authority to arrest. Private citizens, including security guards, have limited authority to arrest in relation to a criminal offence or in defence of property. Usually, a party who is detained and is not convicted of the offence for which they are detained has grounds for a claim in false imprisonment/arrest unless the defendant is a peace officer or was assisting a peace officer in making the arrest.

==== g) Negligence ====
Negligence is a complicated but frequently litigated area of law. Put very simply, it is based on the careless conduct of the defendant resulting in a loss to the claimant. Claims in negligence may be for personal injury or for economic loss. Claimants are advised to consult a lawyer before bringing a claim in negligence. Negligence consists of the following components:

:1. '''Duty of Care''' – the claimant must prove that the defendant owed them a duty of care arising from some relationship between them. Many duties of care have been recognized, including but by no means limited to the following:
::(a) Duty towards the intoxicated
::(b) Peace officer’s duty to prevent crime and protect others
::(c) Negligent Infliction of Psychiatric Harm/Nervous Shock
::(d) Manufacturer’s and Supplier’s Duty to Warn
::(e) Negligent Performance of a Service
::(f) Negligent Supply of Shoddy Goods or Structures
::(g) Negligence of Public Authority
:2. '''Standard of Care''' – Once a duty of care is established, the level of care that the defendant owed to the claimant must be determined. This is usually based on the standard of care that a reasonable person would exercise, such as avoiding acts or omissions that one could reasonably foresee might cause the claimant a loss or injury. The level of care expected of professionals in the exercise of their duties is usually higher. 
:3. '''Causation''' – The claimant must show that the defendant’s carelessness actually caused the claimant loss or injury. The basic test is whether the claimant’s loss would not have occurred without the defendant’s action and no second, intervening act occurred that contributed to the loss. 
:4. '''Remoteness''' – Remoteness is a consideration of whether the loss caused by the defendant’s actions was too remote to be foreseeable as a result of the defendant’s negligence. If so, the court may not award damages for the loss even though it was a direct result of the defendant’s carelessness. 
:5. '''Harm''' – Unlike some causes of action, negligence requires the claimant to prove that the defendant’s carelessness caused them harm, whether it is personal injury, pure economic loss or otherwise.

==== h) Misrepresentation ====
Misrepresentation applies where a claimant was induced to enter a contract on the basis of facts cited by the defendant that turned out to be untrue. Misrepresentation can be claimed in contract law or in torts generally, or in both concurrently. In contract law, the remedy is a declaration that the contract is void (rescission). In torts, the remedy may be damages for the claimant’s consequential losses. If the claim is brought in contracts, a distinction must be made between representations, which are statements that induce one to enter a contract, and the terms of the contract, the violation of which gives rise to a claim in breach of contract but not in negligence. There are three specific categories of misrepresentation:

*'''Fraudulent misrepresentation''' – where the defendant made the statement knowing it was untrue. This is the hardest category of misrepresentation to prove, as the claimant must prove the defendant’s state of mind prior to the formation of the contract.
*'''Negligent misrepresentation''' – where the defendant made the untrue statement carelessly, without regard to whether it was true. This category of misrepresentation is more easily proved than fraudulent misrepresentation. See the section on Negligence below for the basic principles.
*'''Innocent misrepresentation''' – where the defendant made the untrue statement in the genuine belief that it was true. This form of misrepresentation is the easiest to prove, but it may only be claimed in contract law, so the remedy for a successful claim is always the setting aside of the contract (rescission).

=== 4) Excluded Causes of Action ===

Certain causes of action are outside the jurisdiction of Small Claims, including:

*Claims for malicious prosecution,
*Claims involving residential tenancy agreements,
*Claims for statutory rights in employment law (i.e., overtime and statutory holiday pay),
*Claims in divorce, trusts, wills or bankruptcy,
*Claims for breach of privacy, intrusion upon seclusion, or appropriation of likeness,
*Human rights complaints (discrimination), and
*Most disputes between strata lot owners and strata corporations

Not all claims that are barred from Small Claims must be brought in Supreme Court. Administrative tribunals such as the Employment Standards Branch, Residential Tenancy Branch, and BC Human Rights Tribunal have exclusive jurisdiction over many types of claims. Claimants should consider the nature of their claim and review the corresponding chapter of the LSLAP Manual to determine the proper forum for their complaint.

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Limitation Periods (20:App F)

2023-09-19T19:12:33Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== 1. Small Claims ==

The ''Limitation Act'', SBC 2012, c 13 [Limitation Act] came into effect on June 1, 2013. A claim is governed by this Act if the claim was discovered after this date, unless the facts underlying the claim arose before the effective date and the limitation period under the old ''Limitation Act'', RSBC 1996, c 266 has expired (s 30(3-4).

Under the ''Limitation Act'', the basic limitation period for most causes of action is 2 years from the date of '''discovery''' of the claim. Discovery is defined as the day on which the claimant knew or reasonably ought to have known ''all'' of the following:

:(a) that injury, loss or damage had occurred; 
:(b) that the injury, loss or damage was caused by or contributed to by an act or omission; 
:(c) that the act or omission was that of the person against whom the claim is or may be made; 
:(d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage (''Limitation Act'', s 8).

Other limitations include:

* enforcement of civil judgements (s 7): 10 years from date of judgement;
* debts owed to government (s 38): 6 years;
* maximum limitation period (s 21(1)): 15 years after the original act or omission giving rise to the claim occurs. Applies to all claims falling under the (new) ''Limitation Act''.

Under the ''Limitation Act'', the running of both the basic and ultimate limitation periods may be delayed for minors (s 18), persons while under disability (ss 19, 25), and for fraud or wilful concealment of facts on the part of the defendant (ss 12, 21(3)). Both the basic 2 year limitation period and the 15 year ultimate limitation period are renewed if the defendant gives written and signed acknowledgement of liability (s 24). A counterclaim may be brought even though the limitation period has expired if the counterclaim relates to the claim to which it responds and that claim is within its applicable limitation periods (s 22). The Act generally does not apply to sexual assault claims, child or spousal support claims, or fines under the Offence Act (s 3). The Act also does not apply to limitation periods established under other legislation.

The Notice of Claim must be '''filed''' before the limitation period expires. If a notice of claim has not been '''served''' within 12 months after it was filed, it expires, but the claimant may apply to have it renewed (''SCR'', Rules 16(2)(a), 16(2)(a.1) and 16(3)).

== 2. Civil Resolution Tribunal ==

The ''Limitation Act'' applies to the CRT; however, for claims brought under the CRT, the limitation period does not run after a party asks the tribunal to resolve a claim. A party has 28 days following the tribunal’s decision, the date on the court order, or the date the tribunal certifies that the parties have completed the tribunal’s process to bring or continue a claim in court.

== 3. Other Legislation ==
Certain Acts will overrule the ''Limitation Act''. The'' Vancouver Charter'', SBC 1953, c 55; the Police Act, RSBC 1996, c 367; and the ''RCMP Act'', RS 1985, c. R-10, all have their own limitation periods and notice provisions, and must therefore be consulted before bringing an action against a party covered by one of these statutes. For limitation dates pertaining to employment, human rights complaints or residential/tenancy disputes, see the corresponding chapters of this manual.

The ''Local Government Act'', RSBC 1996, c 323, sets a limitation date for claims against a municipality in BC (s 285) of 6 months after the cause of action arose. Notice of damages must be delivered to the municipality within 2 months from the date on which the damage was sustained unless the damage resulted in death, the claimant has a reasonable excuse, or the municipality is not unfairly prejudiced by the lack of notice (s 286(1-3)).

{| class="wikitable"
!
! Limitation Act:
|-
| style="font-weight: bold;" | Application:
| Applies if discovery occurred after June 1, 2013
|-
| style="font-weight: bold;" | Basic Limitation Period:
| 2 years after discovery*
|-
| style="font-weight: bold;" | Damages to Personal Injury or Property:
| 2 years after discovery
|-
| style="font-weight: bold;" | Debts owed to government:
| 6 years, including ICBC claims for vehicle indebtedness, student loans and medical fees
|-
| style="font-weight: bold;" | Counterclaims:
| Not barred by expiry of limitation period if counterclaim connected to the claim to which it responds and the limitation period for that claim has not expired.
|-
| style="font-weight: bold;" | Ultimate Limitation Period:
| 15 years after original events occurred
|-
| style="font-weight: bold;" | Enforcement of Judgements:
| 10 years after judgment
|}

*See Limitation Act, SBC 2012 c 13 for exceptions

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Small Claims Glossary (20:App E)

2023-09-19T19:08:08Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

'''ADJOURNMENT'''
*In court settings, postponement of an appearance date until a later, fixed, date.

'''AMENDMENT'''
*Modification of submitted materials. Amendments can consist of additions, deletions, and corrections.

'''BALANCE OF PROBABILITIES'''
*The civil standard of proof. To prove a civil case, it need only be established that the case is more probable than the other.

'''CAUSE OF ACTION'''
*Legal cause for which an action may be brought. The legal theory giving basis to a lawsuit.

'''CIVIL LAW'''
*The system of law concerned with relations between individual parties, rather than criminal affairs.

'''COMMON LAW'''
*Law derived from custom and judicial decisions rather than statutes.

'''COMPLETE DEFENCE'''
*An argument, which, if proven, will effectively end the litigation in favour of the defendant.

'''CONTINGENCY'''
*In legal circles, is commonly used to refer to a contingent fee,which is a fee for legal services provided only if the legal action is settled favourably or out of court.

'''CONTRIBUTORY NEGLIGENCE'''
*Negligent behaviour of the plaintiff that contributes to the harm resulting from the defendant’s negligence.

'''COUNTERCLAIM/COUNTERCLAIMANT'''
*A claim by a defendant seeking relief from the plaintiff. Generally made as a response to the same facts that make up the issue the plaintiff originally claimed for.

'''CROWN'''
*Generally a reference to the government or state acting as a party in legal proceedings.

'''DEBTOR'''
*A person judged to owe money after the resolution of a civil case.

'''DEDUCTIBLE'''
*In an insurance policy, the amount that must be paid out-of-pocket before an insurer will pay any expenses. Generally, a clause used by insurance companies as a threshold for policy payments.

'''DEFAULT'''
* Often used in legal contexts as a verb meaning to fail to fulfill an obligation, generally referring to failure to pay a loan or make a court appearance.

'''DISBURSEMENT'''
*Money paid to cover expenses for goods and services that may be currently tax-deductible. Commonly used in the context of business expenses.

'''DISGORGEMENT'''
*Stolen money that must be repaid to victims of theft, fraud, or other financial crime.

'''DISMISS'''
#The discharge of an individual or corporation from employment.
#Judgment in a civil or criminal proceeding denying the relief sought by the action.

'''EQUITY'''
*Can mean different things in different contexts. The most common definitions for equity include:
#The broad concept of fairness
#An alternative legal system that originated in the English courts as a response to the common-law system

'''ESTATE'''
*The degree, quantity, or nature of interest that a person has in real or personal property.

'''EX PARTE'''
*In the interests of one side only or an interested outside party.

'''EXECUTOR/EXECUTRIX'''
*A person specifically appointed by a will to carry out its wishes. Some of the administrative responsibilities typically added to executor’s duties include:
*Gathering up and protecting the assets of the estate;
*Locating beneficiaries named in the will and/or potential heirs;
*Collecting and arranging for payments of debts to the estate;
*Approving or disapproving creditors’ claims; and/or
*Making sure estate taxes are calculated.

'''EXTRAPROVINCIAL CORPORATION'''
*A corporate body that is not incorporated in the province where action has been started.

'''GARNISHEE'''
*A third party ordered to surrender money or property lost by a defendant. The third party must possess the money or property but the defendant must own it.

'''HEARSAY'''
*A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible but there are many exceptions to the hearsay rule.

'''IN FORCE'''
*Commonly refers to when a law becomes legally applicable.

'''INDEMNIFY'''
*Contract with a third party to perform another’s obligations if called upon to do so by the third party, whether the other has defaulted or not.

'''INDIGENT'''
*Used in legal contexts to identify a person with no reasonable ability to pay; often used to identify those deserving of legal aid or waived filing fees.

'''INJUNCTION (MANDATORY, PROHIBITORY, MAREVA, ANTON PILLER)'''
*A court order requiring an individual to either perform or not perform a particular act.

'''JUDGMENT PROOF'''
*Commonly used to refer to defendants or potential defendants who are financially insolvent.

'''JUDICIAL REVIEW'''
*A process where a court of law is asked to rule on the appropriateness of a decision of an administrative agency, tribunal, or legislative body.

'''LEAVE'''
*Commonly used in the context of leave of the court. Generally refers to permission to perform an action or make a statement.

'''LITIGANT'''
*Any party involved in a lawsuit.

'''MALICIOUS PROSECUTION'''
*A cause of action relating to a civil suit or criminal proceeding that has been unsuccessfully committed without probable cause and for a purpose other than bringing the alleged wrongdoer to justice.

'''MISNOMER'''
*An inaccurate use of a word or term.

'''PARTNERSHIP'''
*An association of two or more persons engaged in a business enterprise in which the profits and losses are shared proportionally.

'''PRIMA FACIE'''
*Based on first glance; presumed as true until proven otherwise.

'''PROPRIETORSHIP'''
*An unincorporated business owned by a single person who is responsible for its liabilities and entitled to its profits.

'''QUANTUM MERUIT'''
*Latin for “what one has earned.” The amount to be paid for services where no agreement exists.

'''QUANTUM VALEBAT'''
*Latin for “what it was worth.” When goods are sold without a price specified, the law generally implies that the seller will pay the buyer what they were worth.

'''REGULATION'''
*A law on some point of detail, supported by an enabling statute, and issued not by a legislative body but by an executive branch of government.

'''RELIEF'''
*A legal remedy – the enforcement of a right, imposition of a penalty, or some other kind of court order – that will be granted by courts in response to a specific action.

'''ROYAL ASSENT'''
*In Canada, where the Lieutenant Governor signs a bill to bring it into law. New legislation can exist as a bill but not as binding law if it has not received Royal Assent.

'''SET-OFF'''
*A claim by a defendant in a lawsuit that the plaintiff owes the defendant money which should be subtracted from the amount of damages claimed.

'''SPECIFIC PERFORMANCE'''
*A legal remedy that compels a party to complete their specific duty in a contract rather than compensate the claimant with damages. Often used when a unique remedy is at issue.

'''STAND DOWN'''
*In court, when a matter is postponed for a short period of the time. Differs from adjournment in being less formal; to stand a matter down is usually to postpone it for a short, indefinite period, while adjournments are often for longer fixed periods.

'''STATUTE'''
*A written law passed by a legislative body.

'''STAY OF PROCEEDINGS'''
*Stoppage of an entire case or a specific proceeding within a case.

'''SUBROGATE'''
*To substitute one party for another in a legal proceeding. The facts of each case determine whether subrogation is applicable.

'''SUBSTITUTIONAL SERVICE'''
*Under court authorization, serving an alternate person when the original named party cannot be reached.

'''TORT'''
*A private, civil action stemming from an injury or other wrongful act that causes damage to person or property.

'''UBERRIMAE FIDEI'''
*Utmost good faith; commonly used as the standard for dealing in insurance contracts.

'''WITHOUT PREJUDICE'''
*A reservation made on a statement that it cannot be used against in future dealings or litigation.

{{LSLAP Manual Navbox|type=chapters15-23}}

Sample Reply to Claim for Small Claims (20:App D)

2023-09-19T19:05:33Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

{{LSLAP Appendix PDF
| FileURL = media:LSLAP_20_App_D_Sample_Reply_to_Claim.pdf
| PermaCC = https://perma.cc/9CTT-YM8V
}}

{{LSLAP Manual Navbox|type=chapters15-23}}

Sample Notice of Claim for Small Claims (20:App C)

2023-09-19T19:01:58Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

{{LSLAP Appendix PDF
| FileURL = media:LSLAP 20 App C Sample Notice of Claim.pdf
| PermaCC = https://perma.cc/R39W-CPXP
}}

== 1. Claims in Debt ==

Claims in debt are quantified. Usually, the parties can agree on the amount owing.

:'''SAMPLE:''' The claimant’s claim is for a debt in the amount owing to the claimant on account for (or, for the price of) goods sold and delivered (or services rendered) by the claimant to the defendant at their request. The goods sold (or services rendered) were: (description of goods or services) and were delivered (or rendered) on or about the 29th day of July 2007 at 3875 Point Grey Road in the City of Vancouver, BC. The claimant has demanded payment of this sum by the defendant but the defendant has refused or neglected to pay.

If the defendant has partially paid the original amount owing, this should be detailed in the Notice of Claim.

== 2. Claims for Damages ==

Damages are a claim for a loss where the parties do not agree on an amount owed. These claims often refer to breach of contract, misrepresentation, or negligence.

:'''SAMPLE:''' The claimant’s claim is against the defendant(s) (and each of them jointly and severally) for the sum of $3,000 for damages to the claimant’s house resulting from a roof installed on or about the 10th day of June, 2007, at (or near) 2120 West 2nd Avenue in the City of Vancouver, British Columbia, due to the roof being negligently installed by the defendant... causing damages of the above amount. The defendant’s said negligence consisted of... (i.e., improper installation or materials).

:'''SAMPLE:''' The claimant had a contract with the defendants to paint the claimant’s house for $3,000. The defendants never painted the house. The claimant had to pay XYZ Painters $3,950 to paint the house. This happened in Coquitlam, British Columbia, in May of 2007.

The statement of facts should be broken down into separate paragraphs. Facts should be listed as one fact per numbered paragraph.

In a claim for damages, the claimant may not know what the amount should be. In such cases, the claimant should claim a figure that they would accept in the settlement, or if doubtful of the amount, $35,000 should be claimed and the court will determine the appropriate amount of damages. Furthermore, Small Claims Court can award aggravated and punitive damages. Aggravated damages are considered compensatory and may be awarded even if not plead specifically; see ''[http://canlii.ca/t/1d9n9 Epstein v Cressey Development Corp.]'' [1992] 2 WWR 566 (BCCA). Punitive damages are not compensatory and must be pleaded specifically; see ''[http://canlii.ca/t/23zp0 Gillespie v Gill Et. Al.]'' [1999] B.C.P.C. No. 2021. For a discussion of aggravated damages see ''[http://canlii.ca/t/gd3rv Kooner v Kooner]'' [1989] B.C.S.C. No.62. For a discussion of aggravated and punitive damages, see ''Siebert v J & M. Motors Ltd.'' [1996] B.C.J. No.876.

== 3. Other Remedies ==

The Notice of Claim is designed for claims in debt and for damages, but other claims are available, such as specific performance of a contract, quantum meruit or return (recovery) of an item.

:'''SAMPLE:''' The claim is against the defendant for the return of their lawnmower, which was borrowed by the defendant who refused to return it. This happened in Surrey, British Columbia, in July of 2007.

In cases such as this, ignore the dollar amount for the “How Much” section. Indicate instead what the claimant seeks, i.e., “The claimant asks for an order that their lawn mower be returned to them”. You should consider the possible condition of the goods when deciding whether or not to ask for damages instead.

{{LSLAP Manual Navbox|type=chapters15-23}}

Sample Demand Letter (20:App B)

2023-09-19T19:00:00Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

<tt>
123 Parliament Way 
Richmond, British Columbia 
V6K 1H6

18 June 2007

WITHOUT PREJUDICE

Mr. Wilfred Laurier 
321 Confederation Drive 
Vancouver, BCV1K 5L2

Attention : Mr. Laurier

Dear Sir:

Re: Contract with Macdonald Painting & Restoration. Dated January 5, 2000, and amended by way of an oral contract.

On January 5, 2000, you signed a detailed Contract with me outlining the work that was to be completed for $6000.00. In addition, in August 2000, you asked me to repair some damage that a moving company had created and to pressure wash the house. At that time I informed you that this additional work would cost $1400.00.

On or about January 5, 2000, you issued me a $2500 cheque as a deposit for the work to be completed on the home and garage at 321 Confederation Drive. There were problems with the work that was done. I corrected the problems you listed and on March 10, 2000, I notified you that there was $4900.00 due. This amount has not yet been paid.

I am considering starting a legal action in the Small Claims Division of the Provincial Court for debt. Such action could result in a judgment in the amount of $4900.00 plus all disbursements, costs, and interest.

I do not want to litigate and will forgo further action upon receipt of $4,900 in the form of a certified cheque or money order made payable to Mr. Macdonald and mailed to 12345 Macdonald Street, Vancouver, British Columbia, V6T 1Z1. Non-payment within 14 days of the receipt of this letter will result in the commencement of action without further notice. Correspondence should be directed to my attention at my office. If you have any questions or comments do not hesitate to call.

Yours truly,

Mr. John A. Macdonald
</tt>

{{LSLAP Manual Navbox|type=chapters15-23}}

Small Claims Registries (20:App A)

2023-09-19T18:59:19Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== METRO VANCOUVER ==

{| style="width: 50%"
| colspan="3" style="font-weight: bold;" | ABBOTSFORD
|-
| 32203 South Fraser Way
Abbotsford, BC,V2T 1W6
| style="width: 25px" | Telephone:
Fax:
| (604) 855-3200
(604) 855-3232
|-
| colspan="3" style="font-weight: bold;" | CHILLIWACK
|-
| 46085 Yale Rd
Chilliwack, BC,V2P 2L8
| style="width: 25px" | Telephone:
Fax:
| (604) 795-8350
(604) 795-8345
|-
| colspan="3" style="font-weight: bold;" | NEW WESTMINISTER
|-
| 651 Carnarvon St
New Westminster, BC V3M 1C9
| style="width: 25px" | Telephone:
Fax:
| (604) 660-8522
(604) 660-1937
|-
| colspan="3" style="font-weight: bold;" | NORTH VANCOUVER
|-
| 200 East 23rd St
North Vancouver, BC V7L 4R4
| style="width: 25px" | Telephone:
Fax:
| (604) 981-0200
(604) 981-0234
|-
| colspan="3" style="font-weight: bold;" | PORT COQUITLAM
|-
| Unit A – 2620 Mary Hill Rd
Port Coquitlam, BC V3C 3B2
| style="width: 25px" | Telephone:
Fax:
| (604) 927-2100
(604) 927-2222
|-
| colspan="3" style="font-weight: bold;" | RICHMOND
|-
| 7577 Elmbridge Way
Richmond, BC V6X 4J2
| style="width: 25px" | Telephone:
Fax:
| (604) 660-6900
(604) 660-1797
|-
| colspan="3" style="font-weight: bold;" | SURREY
|-
| 14340 57th Ave
Surrey, BC V3X 1B2
| style="width: 25px" | Telephone:
Fax:
| (604) 572-2200
(604) 572-2280
|-
| colspan="3" style="font-weight: bold;" | VANCOUVER (ROBSON SQUARE)
|-
| Box 21, 800 Hornby St
Vancouver, BC V6Z 2C5
| style="width: 25px" | Telephone:
Fax:
| (604) 660-8989
(604) 660-8950
|}

== REST OF BC ==

{| style="width: 50%"
| colspan="3" style="font-weight: bold;" | ATLIN
|-
| Box 100 Third Street
Atlin, BC V0W 1A0
| style="width: 25px" | Telephone:
Fax:
| (250) 651-7595
(250) 651-7707
|-
| colspan="3" style="font-weight: bold;" | BURNS LAKE
|-
| 508 Yellowhead Hwy
PO Box 251
Burns Lake, BC V0J 1E0
| style="width: 25px" | Telephone:
Fax:
| (250) 692-7711
(250) 692-7150
|-
| colspan="3" style="font-weight: bold;" | CAMPBELL RIVER
|-
| 500 – 13th Ave
Campbell River, BC V9W 6P1
| style="width: 25px" | Telephone:
Fax:
| (250) 286-7650
(250) 286-7512
|-
| colspan="3" style="font-weight: bold;" | CLEARWATER
|-
| Box 1981, RR #1 363 Murtle Cres
Clearwater, BC V0E 1N1
| style="width: 25px" | Telephone:
Fax:
| (250) 674-2113
(250) 674-3092
|-
| colspan="3" style="font-weight: bold;" | COURTENAY
|-
| 420 Cumberland Rd, Room 100
Courtenay, BC V9N 2C4
| style="width: 25px" | Telephone:
Fax:
| (250) 334-1115
(250) 334-1191
|-
| colspan="3" style="font-weight: bold;" | CRANBROOK
|-
| 102 11th Ave S, Room 147
Cranbrook BC V1C 2P3
| style="width: 25px" | Telephone:
Fax:
| (250) 426-1234
(250) 426-1352
|-
| colspan="3" style="font-weight: bold;" | DAWSON CREEK
|-
| 1201 103 Ave, Room 125
Dawson Creek, BC V1G 4J2
| style="width: 25px" | Telephone:
Fax:
| (250) 784-2278
(250) 784-2339
|-
| colspan="3" style="font-weight: bold;" | DUNCAN
|-
| 238 Government St
Duncan, BC V9L 1A5
| style="width: 25px" | Telephone:
Fax:
| (250) 746-1258
(250) 746-1244
|-
| colspan="3" style="font-weight: bold;" | FORT NELSON
|-
| Bag 1000
Fort Nelson, BC V0C 1R0
| style="width: 25px" | Telephone:
Fax:
| (250) 774-5999
(250) 774-6904
|-
| colspan="3" style="font-weight: bold;" | FORT ST. JOHN
|-
| 10600 100 St
Fort St. John, BC V1J 4L6
| style="width: 25px" | Telephone:
Fax:
| (250) 787-3231
(250) 787-3518
|-
| colspan="3" style="font-weight: bold;" | GOLDEN
|-
| 837 Park Dr
Box 1500
Golden, BC V0A 1H0
| style="width: 25px" | Telephone:
Fax:
| (250) 344-7581
(250) 344-7715
|-
| colspan="3" style="font-weight: bold;" | KAMLOOPS
|-
| 223 – 455 Columbia St
Kamloops, BC V2C 6K4
| style="width: 25px" | Telephone:
Fax:
| (250) 828-4344
(250) 828-4332
|-
| colspan="3" style="font-weight: bold;" | KELOWNA
|-
| 1 – 1355 Water St
Kelowna, BC V1Y 9R3
| style="width: 25px" | Telephone:
Fax:
| (250) 470-6900
(250) 470-6939
|-
| colspan="3" style="font-weight: bold;" | MACKENZIE
|-
| 64 Centennial Dr
Box 2050
Mackenzie, BC V0J 2C0
| style="width: 25px" | Telephone:
Fax:
| (250) 997-3377
(250) 997-5617
|-
| colspan="3" style="font-weight: bold;" | MASSET
|-
| 1066 Orr St
Box 230
Masset, BC V0T 1M0
| style="width: 25px" | Telephone:
Fax:
| (250) 626-5512
(250) 626-5491
|-
| colspan="3" style="font-weight: bold;" | NANAIMO
|-
| 35 Front St
Nanaimo, BC V9R 5J1
| style="width: 25px" | Telephone:
Fax:
| (250) 716-5908
(250) 716-5911
|-
| colspan="3" style="font-weight: bold;" | NELSON
|-
| 320 Ward St
Nelson, BC V1L 1S6
| style="width: 25px" | Telephone:
Fax:
| (250) 354-6165
(250) 354-6539
|-
| colspan="3" style="font-weight: bold;" | PENTICTON
|-
| 100 Main St
Penticton, BC V2A 5A5
| style="width: 25px" | Telephone:
Fax:
| (250) 492-1231
(250) 492-1378
|-
| colspan="3" style="font-weight: bold;" | PORT ALBERNI
|-
| 2999 4th Ave
Port Alberni, BC V9Y 8A5
| style="width: 25px" | Telephone:
Fax:
| (250) 720-2424
(250) 720-2426
|-
| colspan="3" style="font-weight: bold;" | PORT HARDY
|-
| 9300 Trustee Rd
Box 279
Port Hardy, BC V0N 2P0
| style="width: 25px" | Telephone:
Fax:
| (250) 949-6122
(250) 949-9283
|-
| colspan="3" style="font-weight: bold;" | POWELL RIVER
|-
| 103 – 6953 Alberni St
Powell River, BC V8A 2B8
| style="width: 25px" | Telephone:
Fax:
| (604) 485-3630
(604) 485-3637
|-
| colspan="3" style="font-weight: bold;" | PRINCE GEORGE
|-
| 250 George St
Prince George, BC V2L 5S2
| style="width: 25px" | Telephone:
Fax:
| (250) 614-2700
(250) 614-2717
|-
| colspan="3" style="font-weight: bold;" | PRINCE RUPERT
|-
| 100 Market Pl
Prince Rupert, BC V8J 1B8
| style="width: 25px" | Telephone:
Fax:
| (250) 624-7525
(250) 624-7538
|-
| colspan="3" style="font-weight: bold;" | QUESNEL
|-
| 350 Barlow Ave
Quesnel, BC V2J 2C2
| style="width: 25px" | Telephone:
Fax:
| (250) 992-4256
(250) 992-4171
|-
| colspan="3" style="font-weight: bold;" | ROSSLAND
|-
| 2288 Columbia Ave
Box 639
Rossland, BC V0G 1Y0
| style="width: 25px" | Telephone:
Fax:
| (250) 362-7368
(250) 362-9632
|-
| colspan="3" style="font-weight: bold;" | SALMON ARM
|-
| 550 – 2nd Ave NE
PO Box 100 Stn Main
Salmon Arm, BC V1E 4S4
| style="width: 25px" | Telephone:
Fax:
| (250) 832-1610
(250) 832-1749
|-
| colspan="3" style="font-weight: bold;" | SECHELT
|-
| 5480 Shorncliffe Ave
PO Box 160
Sechelt, BC V0N 3A0
| style="width: 25px" | Telephone:
Fax:
| (604) 740-8929
(604) 740 8924
|-
| colspan="3" style="font-weight: bold;" | SMITHERS
|-
| 3793 Alfred St
No. 40 Bag 5000
Smithers, BC V0J 2N0
| style="width: 25px" | Telephone:
Fax:
| (250) 847-7376
(250) 847-7710
|-
| colspan="3" style="font-weight: bold;" | TERRACE
|-
| 3408 Kalum St
Terrace, BC V8G 2N6
| style="width: 25px" | Telephone:
Fax:
| (250) 638-2111
(250) 638-2123
|-
| colspan="3" style="font-weight: bold;" | VALEMOUNT
|-
| 1300 4th Ave
PO Box 125
Valemount, BC V0E 2Z0
| style="width: 25px" | Telephone:
Fax:
| (250) 566-4652
(250) 566-4620
|-
| colspan="3" style="font-weight: bold;" | VERNON
|-
| 3001 27th St
Vernon, BC V1T 4W5
| style="width: 25px" | Telephone:
Fax:
| (250) 549-5422
(250) 549-5621
|-
| colspan="3" style="font-weight: bold;" | VICTORIA
|-
| 2nd Floor, 850 Burdett Ave
Victoria, BC V8W 9J2
| style="width: 25px" | Telephone:
Fax:
| (250) 356-1478
(250) 387-3061
|-
| colspan="3" style="font-weight: bold;" | WESTERN COMMUNITIES
|-
| 1756 Island Hwy
PO Box 9269
Victoria, BC V8W 9J5
| style="width: 25px" | Telephone:
Fax:
| (250) 391-2888
(250) 391-2877
|-
| colspan="3" style="font-weight: bold;" | WILLIAMS LAKE
|-
| 540 Borland St
Williams Lake, BC V2G 1R8
| style="width: 25px" | Telephone:
Fax:
| (250) 398-4301
(250) 398-4459
|}

{{LSLAP Manual Navbox|type=chapters15-23}}

Enforcement of a Small Claims Judgment (20:XVII)

2023-09-19T18:57:38Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

A judgment is valid for 10 years (''Limitation Act'', RSBC 1996, c 266, s 3(3)(f)). During that time, a judgment creditor may use whatever means permitted by law to enforce the order (''Court Order Enforcement Act'', RSBC 1996, c 78). First, the successful party must fill out a payment order form (Form 10) and file it in the registry. Interest and expenses need to be included, and a plain piece of paper showing those calculations should be attached. Although it is called a “payment order”, the form is used even if no payment of money is ordered. There is space at the bottom of the form for a description of a non-monetary order. The registry will compare it with the court record for accuracy and it will then be signed and ready for pick-up or mailed within a day or two.

The judgment creditor should send a copy of the payment order with a demand letter to the debtor. If the court did not give the debtor a deadline, the judgment debt is due immediately (''Court Order Enforcement Act'', RSBC 1996, c 78, s 48(1)). The demand letter should warn that, if payment is not received by a certain date (i.e., 10 days later), other enforcement proceedings will be pursued.

The Small Claims Court has an excellent procedural guide entitled “[http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/getting-results Getting Results]”. Once an enforcement strategy has been decided upon, a judgment creditor should consult the booklet for detailed instructions on how to commence enforcement proceedings.

To enforce payment, a creditor may use any of the following methods (''SCR'', Rule 11(11)):

== A. Prohibition on Enforcement ==

While a debtor is in compliance with a payment schedule, the judgment creditor cannot take any additional steps to collect the debt (''SCR'', Rule 11(6)). If a payment hearing is ordered because the creditor did not agree with the debtor’s proposed payment schedule, the creditor may not take any steps to collect the debt before the hearing (''SCR'', Rule 11(8)). If a summons to a payment hearing is otherwise filed, the creditor may not attempt to collect the judgment debt until after the hearing is over or the summons is either withdrawn or canceled (''SCR'', Rule 11(17)).

'''If the debtor defaults on the payment schedule, the balance becomes due immediately and the creditor may then take other steps to collect the balance''' (''SCR'', Rule 11(14)).

The Small Claims Court may be '''unable''' to enforce a mediation agreement if doing so would exceed its jurisdiction. Other mediation agreements and the decisions of adjudicators in simplified trials can be enforced (''[http://canlii.ca/t/2d6vb Carter v Ghanbari]'', 2010 BCPC 266; ''[http://canlii.ca/t/flxlq Wood v Wong]'', 2011 BCSC 794).

It may not be possible to enforce a judgment against a debtor who has discharged the judgment debt in bankruptcy. A judgment creditor who learns that a judgment debtor plans to file for bankruptcy should review the ''Bankruptcy and Insolvency Act'', RSC 1985, c B-3, s 178 and obtain independent legal advice.

== B. Order for Seizure and Sale ==

An order for seizure and sale allows for personal property belonging to the debtor to be seized by a bailiff and sold at a public auction. Examples of personal property that can be seized include vehicles, furniture, and electronics. A personal judgment debtor (i.e., not a corporation) is entitled to retain certain personal property up to a certain value set by regulation (''Court Order Enforcement Act'', RSBC 1996, c 78: s 71(1); ''Court Order Enforcement Exemption Regulation'', BC Reg 28/98, s 2).

The net proceeds (after deduction of the bailiff’s fees and expenses) are given to the judgment creditor. Once a judgment creditor has filed Form 11, the registrar can grant an order for seizure and sale if there is no payment schedule or if the debtor has not complied with a payment schedule (''SCR'', Rules 11(11)(a) and 11(14)(b)).

The debtor is not notified of the order prior to seizure. A seizure and sale is not carried out by the creditor and must be done by private bailiffs. Before an order is issued, the creditor must deposit the estimated fees and expenses of the bailiffs. An order for seizure and sale is valid for one year.

== C. Garnishment After Judgment ==

Garnishment requires a third party, often the debtor’s employer or bank, to pay money owing to the debtor into court instead of to the debtor. The creditor must file an affidavit that describes the amount of the payment order, the amount still owing, and the name and address of the garnishee. The affidavit must be sworn before a notary, a lawyer, or a justice of the peace at the registry. Certain assets such as social assistance payments (welfare, disability) and joint accounts may not be garnished. With some exceptions, only 30 percent of the debtor’s salary can be garnished (''Court Order Enforcement Act'', RSBC 1996, c 78, ss 3(5)-(7)).

The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia. The garnishee will pay the entire amount it owes the debtor (i.e., the positive balance in a bank account). The garnishing order does not freeze the account; the claimant may re-garnish the bank at any time.

Once the creditor receives a garnishing order, they must serve both the garnishee and the debtor either personally, or by registered mail requiring signature.

Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and owing within '''seven''' days (''Court Order Enforcement Act'', RSBC 1996, c 78, s 1) – it is therefore critical to have some knowledge relating to the debtor’s pay schedule. If the garnishee owes money to the debtor, they must pay the amount owed to the court. All money paid into court is held until further order of the court.

A creditor may apply for the garnishment of a debtor’s bank account and accounts receivable '''before''' a judgment is reached. This is called a pre-judgment garnishing order. For more information, see '''Chapter 10, Section III.B.5.: Garnishment of Bank Accounts and Other Accounts Receivable'''.

== D. Payment Hearing ==

A payment hearing may be scheduled before a judge or justice of the peace (''SCR'', Rule 12). The default method of appearance is by telephone or Teams audio or videoconference. The payment hearing will determine the debtor’s ability to pay and whether a payment schedule should be ordered (''SCR'', Rule 12(1)). Such a hearing may be requested by a creditor or debtor or ordered by a judge (''SCR'', Rule 12(2)). However, if a creditor has an order for seizure and sale, they must get the permission of a judge to also have a payment hearing. The debtor must bring records and evidence of income and assets, debts owed to and by the debtor, any assets the debtor has disposed of since the claim arose, and the means that the debtor has, or may have in the future, of paying the judgment (''SCR'', Rule 12(12)). Costs to the applicant in such a proceeding are added to the sum of the judgment.

A creditor who requests a hearing must file Form 12: Summons to a Payment Hearing. The registry will set a date on the form and the person named in the summons must be served personally at least seven days before the date of the hearing (''SCR''Rules 12(7) and 18(12)(b)); service by mail is not permitted.

If the debtor is having difficulty paying, they can request a hearing by filing Form 13: Notice of Payment Hearing which must be served on the creditor at least seven days before the date of the hearing, but may be served by regular mail as long as it is mailed at least 21 days in advance of the hearing date (''SCR''Rules 12(11), 18(12)(b), and 18(13)).

If a person who was properly summoned or ordered by the court to attend a payment hearing does not attend, the creditor may ask that the judge or justice of the peace issue a warrant (Form 9) arrest that person (''SCR'', Rule 12(15)).

If a creditor does not appear, the hearing may be held, canceled, or postponed (''SCR'', Rule 12(14)).

== E. Driver’s Licence Suspension ==

If damages are a result of a motor vehicle accident involving property damage exceeding $400, bodily injury, or death (''Motor Vehicle Act'', s 91(1)), the creditor may apply to the Superintendent of Motor Vehicles within 30 days of the judgment to have the debtor’s driver’s license suspended. The Superintendent may suspend the license upon receiving the judgment.

== F. Default Hearing ==

If the debtor does not comply with a payment schedule, the creditor may request a default hearing by filing Form 14: Summons to a Default Hearing. The creditor should request from the debtor the same documents as would be requested for a Payment Hearing. The summons must be served personally by '''either''' a court bailiff or a sheriff (i.e., not the creditor) at least seven days before the hearing (''SCR'', Rule 13(5)). The judge at the hearing may confirm or vary the terms of the payment schedule (Rule 13(7)) or imprison the debtor if the defendant does not appear or if the reason for failing to comply with the payment schedule amounts to contempt of court (Rules 13(8) and (9)).

The Registrar’s authority to waive fees extends only to registry services and '''not''' court bailiff or sheriff’s services. If a creditor cannot afford a court bailiff’s or the sheriff’s services, the claimant can complete an Application to a Judge seeking, pursuant to Rule 13(8), to hold the debtor in contempt and obtain a Warrant of Imprisonment to imprison the debtor for up to 20 days. This application can be served personally by the applicant to avoid the court bailiff’s or sheriff’s fees. If the creditor will testify at the hearing as to the debtor’s failure to comply with the payment schedule, an affidavit is not required.

== G. Execution Against Land ==

If the debtor owns land in British Columbia, the creditor can register the judgment against the land (''Land Title Act'', RSBC 1996, c 250, ss 197 and 210). If you do not know whether the debtor owns the land, you can do a name search at the land title office, for a fee. If the property is sold or transferred after registration of the certificate of judgment, some or all of the judgment may be paid. Registering a certificate of judgment prevents the Debtor from selling or mortgaging the land unless the debt owed to the Creditor is paid off. Even if the Debtor owns land jointly with another person, it may be useful to register a certificate of judgment against the land. A certificate of judgment is subject to a prior registered mortgage and the rights of a bona fide purchaser who, before registration of the certificate of judgment, has acquired an interest in land in good faith and for valuable consideration under an instrument not registered at the time of the registration of the judgment (''Court Order Enforcement Act'', RSBC 1996, c 78, s 86).

Once the judgment is registered, the creditor may apply for an order to sell the property, but only through the Supreme Court of BC. It is outside the jurisdiction of the Provincial Court to order a lien to be placed or removed against the property. The process of having a Debtor’s land sold to pay off a debt owed to a creditor is very complicated, costly and time-consuming. For example, if the land is used by the Debtor as a principal residence in the Capital Regional District or the Greater Vancouver Regional District, and the Debtor’s equity in the land is less than $12,000 the land is exempt from being taken and sold. If the land is located elsewhere in BC and is used by the Debtor as a principal residence and the Debtor’s equity is less than $9,000 the land is exempt from being taken and sold (''Court Order Enforcement Act'', RSBC 1996, c 78, s 71.1). Because of this complicated process, legal advice should be obtained to determine whether it would be financially worthwhile to apply for an order to sell.

A certificate of judgment can be obtained at the Small Claims Court Registry from the Registrar. The cost is $30.00. The certificate of judgment can then be registered at the Land Title Office where the land is registered. The cost of filing the certificate of judgment at the Land Title Office is $25.00. The certificate is effective for two years. After the two years expires, a new certificate of judgment must be obtained and filed again.

== H. Bankruptcy ==

If a person files a consumer proposal or becomes bankrupt, the law automatically puts in place a “stay of proceedings”. With a few exceptions, a stay prevents any legal action from being commenced or continued against the bankrupt party. The person’s trustee will send legal notice of the stay to any person or business currently engaged in legal action against the person declaring bankruptcy. The stay is also sent to the Court that is handling the person’s legal action and if a creditor has already obtained a judgment against the person, a copy is sent to debtor’s employer as well to stop the garnishee.

The Stay of Proceedings is only effective against debts that are dischargeable (i.e., can be eliminated) by bankruptcy law. Things like child support, spousal support, restitution orders, repayment of debts based on fraud or misrepresentation, and some others are not stopped by a stay. A complete list of the debts can be found under the Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 178.

There are ways for creditors to circumvent a Stay of Proceedings. However, individuals with a judgment awarded in Small Claims Court are advised to speak with a trustee and discuss the mechanism of submitting a proof of claim. This form must be filled out to share in the dividends and vote at the first meeting of creditors (if one is held). The form contains the name of the creditor and the bankrupt and the nature and amount of the claim, as well as other information. A list of instructions is usually included. You must attach a Statement of Account providing the details of the claim along with supporting documents or other evidence that establishes the validity of your claim.

== I. Debt collection ==

Part 7 of the ''Business Practices and Consumer Protection Act'' (BPCPA) deals with debt collection practices and applies to all transactions, including consumer to consumer, business to consumer, and consumer to business. A collector is defined as “any person, whether in British Columbia or not, who is collecting or attempting to collect a debt”. Collectors should be aware of the prescriptions in this BPCPA because there are penalties and fines associated with violating the provisions. For example, Part 10 s 171 of the Act gives rise to a statutory cause of action in Provincial Court to recover damages caused by contraventions of the Act and also gives the Provincial Court jurisdiction for defamation and malicious prosecution.

== J. Civil Resolution Tribunal ==

Under the ''Civil Resolution Tribunal Act'', section 58.1, a CRT order may be enforced by filing it in the BC Provincial Court. This can be done if a party has either a consent resolution order, or a final decision. The BC Provincial Court must be provided with a validated copy of the order. A validated copy of a CRT order is sent with the CRT decision. Once a small claims order is received, it can be filed immediately. Effective from July 1st, 2022, the BC government amended the CRTA to remove a previously existing process for parties to dispute the decision by making a Notice of Objection. As such, the only remaining option to appeal CRT decisions now is through application for judicial review.

When a CRT order is filed with the BC Provincial Court, it has the same force and effect as if it were a judgment of the BC Provincial Court. The enforcement procedures are within the Court’s jurisdiction. That is, the CRT has no powers of enforcement for its own orders, or for orders from other tribunals such as the Residential Tenancy Branch.

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Small Claims Appeals (20:XVI)

2023-09-19T18:56:27Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== A. CRT Small Claims Decisions and Appeals ==

A party who is dissatisfied with a ruling can seek judicial review in the Supreme Court of British Columbia. There are various standards of review applicable to different cases (standard of review refers to the level of scrutiny a reviewing court will apply to a decision). The standard of review is variable because courts have struggled with the interpretation of s 58 of the ''Administrative Tribunals Act''. For example, BCSC has ruled that the standard of review for CRT decisions on strata property matters is patent unreasonableness (''The Owners, Strata Plan VR320 v. Day'', 2023 BCSC 364). The Supreme Court of Canada has defined this to apply to decisions that “contain an immediately obvious defect, which is “so flawed that no amount of curial deference can justify letting it stand” and almost borders on the absurd (''Law Society of New Brunswick v. Ryan'', 2003 SCC 20 at para. 52). However, generally speaking, the standard of review for CRT decisions is correctness, unless the issue under review relates to:
* findings of fact, in which case the finding must either be unreasonable or made without any evidence to support it in order for a reviewing court to reverse it. In such cases, the reviewing court may remit the decision back to the CRT or replace it with the court’s own decision;
* discretionary decisions, in which case the decision must be arbitrary, made in bad faith, be based entirely or predominantly on irrelevant factors, or fail to comply with a statute in order for a reviewing court to reverse it; or
* natural justice and procedural fairness which are considered with the tribunal’s mandate in mind (Administrative Tribunals Act, SBC 2004, c 45, s 58(2)).C

== B. Appealing from Small Claims Court ==

Any party to a proceeding may appeal to the Supreme Court an order to allow or dismiss a claim if the judge made the order after a trial (''SCA'', s 5). An appeal must be started within 40 days, beginning on the day after the order of the Provincial Court is made (''SCA'', s 6). A review of the order under appeal may be on questions of fact or law (''SCA,'' s 12(a)). A mistake of fact could involve a misunderstanding by the Judge of evidence given by a witness. For example, if a witness reported that a particular event happened and, in the decision, the judge bases their decision on the fact that the event didn’t happen, there could be a basis for an appeal. A mistake of law occurs where the Judge makes an error in deciding which law should apply. Not every error made by a Small Claims Court judge will be the basis for a successful appeal. The test which the Supreme Court Judge must apply is called the “clearly wrong test”. If the Small Claims Court judge’s decision about the facts or the law is not clearly wrong, the appeal will fail. An appeal is usually not a new trial; it will be based on the transcripts of the trial in Small Claims Court. The Supreme Court may, however, exercise its discretion to hear the appeal as a new trial (''SCA'', s 12(b)). No new evidence may be adduced at the appeal without leave of the court (Practice Direction: Standard Directions for Appeals from Provincial Court; ''SCA'', s 12).

For claims that do not fit the criteria for an appeal, the ''Judicial Review Procedure Act'', RSBC 1996, c 241, allows the Supreme Court of British Columbia to review decisions made by Provincial Court judges prior to trial. This includes interlocutory orders, the dismissal of a claim at a settlement conference, and adjudicator decisions in Simplified Trials under Rule 9.1. The appropriate standard of review for orders subject to judicial review is reasonableness. For further information on judicial review, see (''[http://canlii.ca/t/242ln 0763486 BC Ltd. v Landmark Realty Corp]'', 2009 BCSC 810 (CanLII); ''[http://canlii.ca/t/52tl Wood and Lauder et al v Siwak]'', 2000 BCSC 397 (CanLII); ''Der v Giles'', [2003] BCJ No 938; and ''Nicholson v Lum'', [1996] BCJ No 860).

If an order dismissing a claim is appealed to the Supreme Court, that appeal does not automatically appeal the counterclaim to the Supreme Court, nor vice versa. Each appeal is a separate matter and needs to be filed separately in the Supreme Court. Both appeals will, of course, be heard together. (''[http://canlii.ca/t/1mzjn Shaughnessy v Roth]'', 2006 BCSC 531 (CanLII)).

=== 1. Filing an Appeal ===

You must act quickly if you wish to appeal a decision as there are many steps involved and only a short period of time. Within 40 days of the order being made (''SCA'', s 6), an appellant must, in one day, do all of the following:

* file a Notice of Appeal in the Supreme Court registry closest to the Provincial Court where the order being appealed was made (''SCA'', s 7);
*deposit with the Supreme Court $200.00 as security for costs plus the amount of money required to be paid by the order under appeal (''SCA'', s 8(1) and (2)) or apply to the Supreme Court to reduce the amount required to be paid (''SCA'', s 8(3));
* apply to the registrar of the Supreme Court for a date for hearing the appeal that is at least 21 days, but not more than 6 months, after the filing date (''SCA'', s 10);
* file a copy of the Notice of Appeal in the Provincial Court registry where the order under appeal was made (''SCA'', s 7(b)).

An application to reduce the amount required to be deposited does not need to be served on any person; however, if the court reduces the amount required to be deposited, the appellant must serve notice of this order on the other parties to the appeal (''SCA'', s 8(6)).

The cost to file a Notice of Appeal in Supreme Court is $200.00 and the cost for filing an application to reduce the amount of the deposit is $80.00. An appellant who cannot afford these fees can apply to the Supreme Court registrar for indigent status.

A copy of both the Notice of Appeal and the Notice of Hearing must be served on every respondent affected by the appeal (''SCA'', s 11(1)). Fourteen days after filing the Notice of Appeal, the appellant must provide the Registrar with proof that the Notice of Appeal and the Notice of Hearing have been served on the respondents.

The Appellant must also order transcripts of the oral evidence given at the Small Claims Court trial and the Judge's reasons for judgment. The Appellant must pay for a copy of the transcript for the Court and one for each party to the appeal. Transcripts cost several dollars per page. So, depending on how long the trial lasted, the transcript could be many, many pages and cost hundreds and even thousands of dollars.

For a detailed checklist of the steps you must take to make an appeal, please see [[Small_Claims_Appeal_(20:App_L) | Appendix L: Small Claims Appeals]].

=== 2. The Decision of the Supreme Court ===

On hearing an appeal, the Supreme Court may make any order that could be made by the Provincial Court, impose reasonable terms and conditions on an order, make any additional order it considers just, and award costs to any party under the ''Supreme Court Civil Rules'' (BC Reg 168/2009 and amendments thereto). '''There is no further appeal from a Supreme Court order''' (''SCA'', s 13(2)).

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Small Claims Costs and Penalties (20:XV)

2023-09-19T18:55:34Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

The court expects parties to act reasonably and follow the rules. Parties who do not follow the rules or are unsuccessful may be liable for certain costs and penalties.

== A. Costs to Successful Party ==

Generally, the unsuccessful party must pay the successful party’s expenses (''SCR'', Rule 20(2)). Any reasonable expenses directly related to the proceedings may be claimed. This includes filing fees, costs for document reproduction, and other costs incidental to the trial process.

A list of expenses should be brought to trial and can include expenses incurred due to the lateness, unpreparedness, or general misconduct of a party (Rule 20(6)) as long as the party claiming the expenses has actually spent that amount of money (''Weeks v Ford Credit Canada Ltd'', [1994] BCJ No 1737).

Wages lost for attending court cannot generally be recovered (''[http://canlii.ca/t/5sx2 McIntosh v De Cotiis Properties Ltd]'', 2002 BCPC 57 (CanLII)). Where a claim before the small claims court has been withdrawn and there are no appropriate grounds to recall it, neither costs nor penalties can be assessed (''SCR'', Rule 8; and ''[http://canlii.ca/t/1g7cp Northwest Waste Systems v Szeto]'', 2003 BCPC 431 (CanLII)).

In circumstances where the successful party has acted unfairly, withheld information, misled the court, or wasted the court’s time, the successful party may have to pay the unsuccessful party’s costs (''Tilbert v Jack'', [1995] BCJ No 938).

:'''NOTE:''' A lawyer’s fees cannot generally be claimed as expenses (''Small Claims Act'', s 19(4); and ''Weeks v Ford Credit Canada Ltd.'', [1994] BCJ No 1737). The only exception is where the contract between the parties requires the reimbursement of legal costs however this only applies to legal '''fees''' that are not related to the claim (''[http://canlii.ca/t/24391 Wetterstrom et al. v Craig Management Enterprises Ltd.]'', 2009 BCPC 165 (CanLII)).

== B. Frivolous Claims ==

A judge has the discretion to order a penalty of up to 10 percent of the amount claimed or the value of the counterclaim if the party proceeded through trial with no reasonable basis for success (''SCR'', Rule 20(5)).

== C. Failure to Settle ==

If there has been a formal offer to settle under Rule 10.1 that was not accepted, a penalty, in addition to any other expenses or penalties – up to 20 percent of the amount of the offer to settle – may be imposed if the offer was the same or better than the result at trial.

The CRT has the power and discretion under the ''Civil Resolution Tribunal Act'' and Rules to allow fees and dispute-related expenses, so long as they are reasonable. If a dispute is not resolved by agreement and a tribunal member makes a final decision, the tribunal member will usually order the unsuccessful party to pay the successful party’s tribunal fees and reasonable dispute-related expenses (''CRT Rules (effective May 1, 2021)'', Rule 9.5(1)). In addition, one party may have to pay the other party tribunal fees, expenses relating to witnesses and summonses, and other reasonable costs paid by the other party (Rule 9.5(2)). It is rare that the CRT would order a party to pay the opposing party’s legal fees to make these fee determinations, the CRT will consider a variety of factors including the complexity of the dispute, the degree of involvement by the representative, and whether a party or representative’s conduct has caused unnecessary delay or expense (Rule 9.5(3)).

== D. Civil Resolution Tribunal Costs ==

The CRT can award fees and dispute-related expenses, so long as they are reasonable. If a dispute is not resolved by agreement and a tribunal member makes a final decision, the tribunal member will usually order the unsuccessful party to pay the successful party’s tribunal fees and reasonable dispute-related expenses (CRT Rules (effective May 1, 2022), Rule 9.5(1)). In addition, one party may have to pay the other party's expenses relating to witnesses and summonses, and other reasonable costs paid by the other party (Rule 9.5(2)). It is rare that the CRT would order a party to pay the opposing party’s legal fees. In deciding those claims, the CRT will consider a variety of factors including the complexity of the dispute, the degree of involvement by the representative, and whether a party or representative’s conduct has caused unnecessary delay or expense (Rule 9.5(3)).

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Small Claims Trials (20:XIV)

2023-09-19T18:54:02Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

A trial is often very difficult, stressful, and unpredictable. If possible, it is generally in the best interests of all parties to settle. However, if the matter cannot be resolved at the settlement/trial conference, a trial will be scheduled (''SCR'', Rule 10). The notice of trial will be sent by mail to the parties’ address on file. If a claimant does not attend the trial, the claim will be dismissed. If a defendant or third party does not attend, the claim will be allowed and judgment granted against the absent party.

Statements made by the claimants or the defendants at the settlement/trial conference are protected by settlement privilege and '''cannot be used at trial'''. A statement made during the settlement/trial conference is not admissible in cross-examination. Also, the judge at the settlement/trial conference will not be the trial judge. This allows the parties to discuss all issues without fear that their statements will be used against them at trial.

Parties should remember that settlement is possible at any time before the judge decides the case. This includes after evidence and arguments are heard at trial.

Parties should watch at least one trial in order to familiarize themselves with the correct procedure.

== A. Simplified Trial for Claims: $5,001 - $10,000 ==

Vancouver (Robson Square) and Richmond hold simplified trials pursuant to Rule 9.1. Simplified trials are set for one hour before an adjudicator. An adjudicator will usually be a justice of the peace but may occasionally be a judge. A justice of the peace adjudicator is referred to as “Your Worship”. Simplified trials are held in the evening in Vancouver and during the day in Richmond.

The parties must each file a Trial Statement (Form 33) at least 14 days before the trial date and serve each other party at least 7 days before the trial (''SCR'', Rules 9.1(17) and (18)). There are penalties for failing to comply with these timelines (''SCR'', Rule 9.1(19)).

The trial does not need to comply with formal rules of procedure and evidence (''SCR'', Rule 9.1(20)). The adjudicator will ask questions and control the proceedings to stay within the one-hour timeframe.

== B. Summary Trial for Financial Debt ==

At the Vancouver (Robson Square) registry, financial debt claims will be set for a half-hour summary trial before a judge. Financial debt claims are claims in which one of the parties is in the business of loaning money or extending credit. Often, little in the way of defence can be offered in situations of financial debt and the summary trial may in some ways come to resemble a payment hearing. Where a defence with some merit is advanced, the judge may send the claim to mediation, order a trial conference, or order a traditional trial (''SCR'', Rule 9.2(13)). The judge may conduct the trial without complying with the formal rules of evidence or procedure (''SCR'', Rule 9.2(9)). Note the rules requiring early disclosure of all relevant documents (''SCR'', Rules 9.2(7) and (8)).

== C. Regular Trial ==

Rule 10 trials are held at all registries and are the most common form of small claims trial.

=== 1. Courtroom Etiquette ===

* Be on time. If you are late, apologize and be prepared to give an excellent explanation.
* Introduce yourself and state your name clearly. Remember to spell your surname for the record.
* Use simple words; do not use “legalese”.
* Do not speak directly with opposing parties. Make submissions only to the judge and have them ask questions to the opposing party.
* Never call witnesses by their given name. Use Mr., Ms., Miss, Mrs., or their preferred title followed by their last name.
* A judge of the Provincial Court is referred to as “Your Honour” and the clerk is referred to as “Madame Clerk” or “Mister Clerk”. When referring to another party, use Mr., Ms., Miss, or Mrs. followed by their last name or refer to them according to their status in the claim (e.g., the defendant).
* Generally you should limit objections to issues that are of central importance to your case. If you have an objection, stand up quickly and say “objection”. The judge will acknowledge you and may ask for the reason you are objecting.

=== 2. Court Room Layout ===

The judge’s bench is usually elevated above the rest of the court so the judge has a good view of the proceedings. The litigants’ table is in front of the judge, and the parties will come and sit there when their case is called. Often there is a raised lectern to hold papers when a litigant stands to ask questions. The court clerk's table is beside the witness box and between the litigants’ table and the judge’s bench. The witness box will be on either the judge’s left or right. The public gallery will fill up the remaining part of the courtroom. Parties will wait in the gallery until their case is called.

There will be microphones throughout. They do not amplify your voice and are for recording purposes only. '''Speak at a moderate speed and project your voice.'''

=== 3. Check-In Procedure ===

The court clerk will ask ahead of time for the names of each party and, if they have one, their lawyer. Each party must tell the court clerk or judge as soon as possible if there are any preliminary motions or applications that should be heard first, whether there are any problems with witnesses and possible delays, and whether the number of witnesses or issues has changed from the settlement conference. This will help to determine the schedule of cases for the day and avoid as many delays as possible.

If all matters on a given day proceed to trial, the courtroom will often be overbooked, and you will be asked about the urgency of your trial. If you are not heard first, you may be given a choice to wait and see if another judge becomes available or to adjourn to another date. If the trial has been previously adjourned, or expert or out-of-town witnesses are present, the trial will likely be given priority.

When the clerk has everyone organized, the judge will be called in. The clerk will announce, “order in court” and everyone must stand. The judge will bow before sitting and all parties should then bow in return before sitting. Next, the court clerk will call out the name of a case, at which time all parties, in that case, will come to the front and identify themselves to the judge.

=== 4. General Order of Proceedings ===

==== a) Preliminary Motions ====

==== b) Claimant’s Case ====

* Claimant’s opening statement
* Claimant’s direct examination of its witnesses
* Defendant’s cross-examination of the claimant’s witnesses
* Claimant’s re-examination of its witnesses
* Defendant’s re-examination of the claimant’s witnesses

==== c) Defendant’s Case ====

* Defendant’s opening statement
* Defendant’s direct examination of its witnesses
* Claimant’s cross-examination of the defendant’s witnesses
* Defendant’s re-examination of its witnesses
* Claimant’s re-examination of the defendant’s witnesses

==== d) Closing Arguments ====
* Claimant’s closing
* Defendant’s closing
* Claimant’s rebuttal

==== e) Judgment ====

=== 5. Opening Statement ===

The claimant’s opening statement should summarise the facts surrounding the claim, the legal basis for the claim, and the relief that is sought. The defendant’s opening statement should summarise the defendant’s version of the facts and the reasons it opposes the claimant’s claim or the relief the claimant is seeking.

The opening statement should also alert the court to the types of evidence that will be presented and from whom the court will hear. Opening statements should not contain legal arguments and should be as brief as possible.

If there are witnesses other than the parties, the claimant should ask for an order excluding those witnesses from the courtroom.

=== 6. Direct Examination ===

When each party is examining its own witness, it is that party’s direct examination. The party calling the witness should tell the court whether the witness will swear or affirm their testimony.

Witnesses can be led on matters that are not in issue (i.e., their name, where they work, etc.). Leading questions tend to be ones where the answer is either yes or no. Leading the witness at the start will help the witness to relax.

When asking questions about issues that are in dispute or are related to a party’s claim or defence, that party should refrain from suggesting answers to the witness. The witness must be allowed to give evidence in their own words.

A witness must authenticate all documents that are entered into evidence unless the parties have agreed to their authenticity. When authenticating a document, pass three copies to the clerk: one for the judge, one for the court record, and another for the witness. Once the witness has identified the document, it will be entered into evidence and given an exhibit number.

When the other party is conducting its direct examination, take detailed notes for cross-examination and closing arguments.

=== 7. Cross-Examination ===

Once the direct examination of a witness has concluded, the witness may be cross-examined by the other party. There are two main purposes of cross-examination: to point out inconsistencies and omissions and to introduce facts or conclusions. If the witness has performed poorly or has not been damaging, it may not be necessary to cross-examine that witness.

Some questions can make the situation worse. A witness should never be asked to repeat what they said in “chief”. This only emphasizes the point and allows the witness to clarify or minimise weaknesses

At some point in cross-examination, the opposing version of the facts should be put to the witness to allow them to comment. This is known as the rule in ''[http://canlii.ca/t/h6kw6 Browne v Dunn]'' and, if not followed, can result in less weight being placed on a witness’ evidence or the recall of adverse witnesses (''[http://canlii.ca/t/1f0lz Budnark v Sun Life Assurance Co. of Canada]'', 1996 CanLII 1397 (BCCA)).

A witness should not allow the cross-examiner to misconstrue their evidence. If a question is unclear, the witness should ask for clarification. Only the question asked should be answered and additional information should not be volunteered. It is okay if the witness does not know the answer to a question; the witness should not guess the answer.

:'''NOTE:''' Parties must not speak to their witnesses after cross-examination and before or during re-examination about the evidence or issues in the case without the court’s permission (''[http://canlii.ca/t/1f6s8 R. v Montgomery]'', 1998 CanLII 3014 (BCSC)). If such a discussion occurs, the witness’ evidence may be tainted and the court may not believe it.

=== 8. Re-Examination ===

If new evidence is introduced during cross-examination that was not reasonably anticipated in direct examination or if a witness’ answer needs to be clarified or qualified, the judge may give permission to re-examine the witness on the new evidence (''[http://canlii.ca/t/g945z R v Moore]'',[1984] OJ No. 134; and ''[http://canlii.ca/t/1j0fr Singh v Saragoca]'', 2004 BCSC 1327 (CanLII) at para. 40). During re-examination, leading questions cannot be asked.

=== 9. Closing Arguments ===

Closing arguments are an opportunity for each party to persuade the judge of its position. Evidence that strengthens the case should be highlighted and evidence that weakens the case should be explained and addressed. The weaknesses should be addressed in the middle of the closing so that the closing may start and finish on positive notes.

It may be necessary to comment on the credibility of witnesses, conflicts in testimony, and the insufficiency of evidence. The comments should be factual and allow the judge to arrive at a conclusion.

It is also important to summarise the relevant law and refer to specific cases that are on point. All case law should have been shared with all other parties well in advance of the trial.

Closing is not an opportunity to introduce new evidence. If something has been omitted, it can only be introduced if the judge grants permission to re-open that party’s case.

=== 10. Judgment ===

When the evidence, submissions, and closing arguments are finished, the judge must give a decision. The judge may give a decision orally at the end of the trial, at a later date, or in writing (''SCR'', Rule 10(11)). The registrar will notify the parties of the date to come back to court for reasons or if the decision is in writing when it was filed in the registry (''SCR'', Rules 10(12) and (13)).

When payment from one party to another is part of the judgment, the judge must make a payment order at the end of the trial and ask the debtor whether they need time to pay (''SCR'', Rules 11(1) and (2)). If the debtor does not require time to pay, the judgment must be paid immediately (''SCR'', Rule 11(7)). If time to pay is needed, the debtor may propose a payment schedule, and if the successful party agrees, the judge may order payment by a certain date or by installments (''SCR'', Rules 11(2)(b), (3), and (4)). If the creditor does not agree to the debtor’s proposal, the judge may order a payment schedule or a payment hearing (''SCR'', Rule 11(5)).

If a payment schedule is not ordered, the debt is payable immediately and the creditor is free to start collection proceedings (''SCR,'' Rule 11(7)).

== D. CRT- Tribunal Process ==

''Written hearings'': the CRT hearing process is different as its hearings are generally done in writing. These hearings occur if the parties do not reach an agreement in the negotiation and facilitation stages.

In preparation for the hearing, a case manager will help each party access the online platform and create a Tribunal Decision Plan. The case managers will guide the parties in the following process:

# The applicant submits their arguments and their evidence
# The respondents reply to the arguments and submit their own evidence
# The applicant gives a final reply to the respondents’ arguments
# The case manager might create a Statement of Facts to help the tribunal member identify what things the participants agree and disagree on

During this process, the case manager will provide parties with a timeline for when to provide evidence and arguments to the CRT member. If a party needs more time, they can ask the case manager for extension, which will be subject to the case manager’s discretion.

As per the CRT Rules, parties must provide all relevant evidence to the CRT, even if it might hurt their case (''CRT Rules (effective May 1, 2021)'', Rule 8.1(1)). In fact, it is an offence under the ''Civil Resolution Tribunal Act'' to provide false or misleading information to the CRT. Evidence should be relevant and may include contracts, correspondence, photos/videos, and statements; see the CRT webpage “Evidence” at https://civilresolutionbc.ca/help/what-is-evidence/. The total evidence should be presented in a digital copy, ideally, such as a Word document or a PDF. Keep in mind the maximum size per file is 250MB. If you need to upload a larger file, see https://civilresolutionbc.ca/contact-us. If a party seeks to alter the evidence, such as highlighting a pertinent section, the party must add a description of what alterations they made for the tribunal.

Parties will have a chance to respond to evidence and arguments by the opposing party or parties; see the CRT webpage “Get a CRT Decision” at https://civilresolutionbc.ca/tribunal-process/tribunal-decision-process/. Parties seeking to submit expert evidence do so at this time. Expert evidence is evidence from a party not involved in the dispute with some experience with the specific disputed problem; it can be helpful to a case. This evidence should be in the form of a written opinion or statement. Parties that submit expert evidence must also submit any correspondence that they had with that expert about the requested opinion.

The CRT member will then make a decision based on the evidence and arguments. Their decision does not include communications between parties from the negotiation and facilitation phases as those are confidential. The decision is usually available online, in writing. This final decision is binding and enforceable. For more information about the process, visit https://civilresolutionbc.ca/help/what-is-a-final-decision/.

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Small Claims Trial Preparation (20:XIII)

2023-09-19T18:51:20Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Many, if not most, litigants find trials to be extremely unnerving. While a small claims trial is not predictable, preparing well in advance can help a party to avoid surprises, present a more compelling case, and alleviate fears about the process.

It is important to consider the merits of a claim before proceeding to trial. If there is no reasonable or admissible evidence, the claim is bound to fail (i.e., a statute prohibits recovery), or a limitation period has passed, the judge may impose a penalty. A penalty of up to 10 percent of the amount of the claim may be imposed if a party proceeds to trial without any reasonable basis for success (''SCR'', Rule 20(5)).

== A. Trial Binder ==

A tabbed trial binder helps a party to effectively present its case at trial. A suggested format is:

{| class="wikitable"
|-
| '''Tab 1:''' || Opening Statement: a brief summary of the issues in the case.
|-
| '''Tab 2:''' || Pleadings: all filed documents in chronological order with a list or index.
|-
| '''Tab 3:''' || Orders: all court orders that have been made.
|-
| '''Tab 4:''' || Claimant’s Case: anticipated evidence of the claimant and claimant’s witnesses, including reminders for the introduction of exhibits and blank pages for taking notes of the cross-examination.
|-
| '''Tab 5:''' || Defendant’s Case: blank pages for notes of the direct examination of defendant and defendant’s witnesses and anticipated cross-examination questions.
|-
| '''Tab 6:''' || Closing Arguments/Submissions: a brief review of the evidence, suggested ways to reconcile conflicts in the evidence, a review of only the most persuasive case law and its application to the facts.
|-
| '''Tab 7:''' || Case Law: prepare three copies of each case relied on (for you, the judge, and the opposing party). Carefully scrutinize the need for multiple cases to support your argument and limit yourself to as few as possible.
|-
| '''Tab 8:''' || Exhibits: you will need the original (the exhibit) and three copies (for you, the judge, and the opposing party). You need to be able to prove when, why, and by whom the exhibit was created, and also be able to argue why it is relevant (i.e. document plan or photograph).
|-
| '''Tab 9:''' || Miscellaneous: any additional documents, notes, lists, and correspondence.
|}

== B. Expert Witnesses ==

Expert witness testimony is not admissible unless their expertise and special knowledge are: (1) necessary for the court to understand the issues (i.e., the subject matter of the dispute is outside the knowledge of an ordinary person) ([http://canlii.ca/t/1frt1 ''R. v Mohan'', [1994<nowiki>]</nowiki> 2 SCR 9]) or (2) provides useful '''context''' to difficult evidence for the benefit of the trier of fact [http://canlii.ca/t/glj0n ''Anderson v Canada (Attorney General)'', 2015 CarswellNfld 381 (NLTD)]).

Whether expert evidence is necessary is a contextual consideration and it can sometimes be unclear when it is required; however, it can be very important as a failure to provide expert evidence when it is required can result in the failure of a party’s claim. If you are unsure about whether you need expert evidence for your claim, seek legal advice.

Expert evidence is generally required to establish the standard of care of a professional, such as a contractor. The main exceptions to this rule are when the professional’s work was obviously substandard or when the issue is not technical [(https://canlii.ca/t/hxlzj Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196)].

The expert’s testimony cannot include the expert’s assessment of the credibility of either the claimant or the defendant (''Movahed v Leung'', [1998] BCJ No. 1210; [http://canlii.ca/t/5c62 ''Brough v Richmond'', 2003 BCSC 512]; and [http://canlii.ca/t/1w9v9 ''Campbell v Sveinungsen'', 2008 BCSC 381]). Expert witness testimony is inadmissible if it relates to issues that the court is capable of understanding and analyzing without assistance (''Sengbusch v Priest'', [1987] 14 BCLR (2d) 26 (BCSC)).

For more information on expert testimony, see the Provincial Court’s Small Claims Guide (https://www.provincialcourt.bc.ca/downloads/smallclaims/Small%20Claims%20Guide.pdf). Expert evidence is addressed on pages 11-13 and sample expert reports are provided on pages 56-60 and 65-66.

=== 1. Small Claims ===

Evidence may be given by an expert at trial or through a written report. An expert report must be the opinion of only '''one''' person. Written reports or notice of expert testimony must be served at least 30 days before trial (''SCR'', Rules 10(3) and (4)).

An expert witness report should include the resume or qualifications of the expert, a brief discussion of the facts of the case supporting the opinion or conclusion, the opinion or conclusion itself, and what was done to arrive at that conclusion.

An exception to the “in-person” rule for expert witnesses is permitted for estimates and quotes. A party may bring a written estimate for the repair of damage or a written estimate of the property value and present it as evidence at trial without calling the person who gave the estimate or quote. Parties should obtain more than one estimate or quote, especially if the sum of money involved is large. Estimates of repairs or value of the property are not considered to be expert evidence (''SCR'', Rule 10(8)) but must be served on all other parties at least 14 days before trial.

If the claimant does not serve the estimate in time, they can ask the trial judge for permission to present it anyway at trial. The claimant may or may not get permission to do so. The other party may ask for a trial adjournment to obtain their own estimate or quote. If the adjournment is granted, the claimant could be penalized and ordered to pay the other party’s expenses.

=== 2. Civil Resolution Tribunal ===

Experts giving evidence at a CRT hearing are there only to assist the tribunal and should not advocate for a particular side or party (''Civil Resolution Tribunal Rules'' [CRTR], Rule 8.3(7)). Expert evidence may only be relied on if the party relying on it provides it to all other parties, unless the tribunal decides otherwise, by the other deadline set by the case manager (''CRTR'', Rule 8.3(1)). In addition, the person providing it must provide their qualifications and it must be accepted by the tribunal as qualified by education, training, or experience to give that opinion (''CRTR'', Rule 8.3(2) and (3)).

The case manager may require that a party providing written expert opinion evidence also provide a copy of the expert’s invoice and any correspondence relating to the requested opinion to every party (''CRTR'', Rule 8.3(4)) by a certain date. The tribunal can direct one or more parties to obtain expert opinion evidence and decide how the cost for these witnesses will be borne (''CRTR'', Rule 8.3(5) and (6)).

For motor vehicle injury claims, the tribunal will determine whether additional expert evidence is reasonably necessary and proportionate through a consideration of factors which include:

* the type of bodily injury or injuries;
* the nature of the claim to be decided by the tribunal;
* the other evidence available;
* the amount claimed;
* the timeliness of the request; and
* any other factors the tribunal considers appropriate (''CRTR'', Rule 8.4(1)).

In addition, for disputes filed under the CRT’s motor vehicle injury jurisdiction, the tribunal may order an independent medical examination on its own behest or at the request of one of the parties (''CRTR'', Rule 8.5(1)). A party who cannot afford to pay the cost of obtaining expert evidence in a motor vehicle injury dispute can ask that the tribunal order another party to pay, although this is contingent on the other party’s ability to pay and the likelihood that the requesting party’s claim will be successful (''CRTR'', Rule 8.6).

== C. Witness Preparation ==

For Small Claims trials, a party should review the evidence of its witnesses at least one week before trial and confirm the witnesses’ attendance. Witnesses should understand how a trial is conducted, the role of a witness, and the requirement that witnesses tell the truth.

CRT disputes on the other hand, are almost always done in writing. Therefore, witnesses should provide signed statements setting out their evidence.

=== 1. Ensuring Attendance ===

Each party must ensure that its witnesses will attend court. If a party is not absolutely certain that a witness will attend, the witness should be personally served with Form 8: Summons to a Witness together with reasonably estimated traveling expense at least 7 days before the witness is required to appear (''SCR'', Rules 9(1)-(3)). The minimum traveling expenses must cover round-trip, economy fare such as bus fare to and from the court. While lost salary and other expenses do not have to be paid, a party should be reasonable and generous if possible to avoid making a witness bear the cost of litigation.

If a witness who has been served with a summons does not appear at trial, the summoning party may ask the judge for an adjournment or a warrant of arrest (Form 9; ''SCR'', Rules 9(7) and 14)).

=== 2. Telling the Truth ===

Giving evidence in court is a solemn and serious affair. Lying to the court can be a criminal offence and result in imprisonment. A witness must be well prepared to give evidence.

To emphasize the formality of the proceeding, witnesses must either swear an oath to or solemnly affirm that they will tell the truth. Sworn and affirmed testimony are equally regarded; the choice of whether to swear or affirm is the witness’.

Swearing an oath involves the witness placing their right hand on a religious text and swearing to tell the truth with reference to their chosen religion. While the bible is the default, several religious texts are available if pre-arranged with the court. The standard oath, “Do you swear that the evidence you are about to give the court, in this case, shall be the truth, the whole truth and nothing but the truth, so help you God?”, can be modified according to religious preference. A witness who does not want to swear a religious oath should give a solemn affirmation. The wording of the solemn affirmation is: “Do you solemnly affirm that the evidence you are about to give the court, in this case, shall be the truth, the whole truth and nothing but the truth?”.

A witness does not need to know the details of each party’s position. If a witness has been told the merits and legal arguments of each side, there is a risk that the witness may advocate for a party by including arguments while testifying. Such conduct is not persuasive, suggests that the witness may be biased, and may undermine the witness’ credibility.

=== 3. Arranging an Interpreter ===

Trials and hearings are conducted in English. If a party or the party’s witness does not speak English, the party must arrange for an interpreter to be present. There is a list of interpreters available from the court registry however the court does not certify interpreters ([http://canlii.ca/t/fw93h ''Sandhu v British Columbia'', 2013 BCCA 88]). A party may use any person who is competent to reliably, accurately, and competently translate what is said in court; the judge has, however, discretion to reject the party’s choice of an interpreter.

An interpreter should be prepared to testify as to their experience and training. An interpreter who is related to a party may be rejected on the basis of potential bias and an interpreter who is inexperienced or untrained may be rejected on the basis of incompetence. If a party does not arrange an interpreter for a hearing or if the court rejects the interpreter, the party may be liable for a penalty and the reasonable costs of the other party. The party requiring an interpreter should ask the judge at the settlement or trial conference to decide whether the chosen interpreter is acceptable.

The party requiring the interpreter is responsible for the costs of the interpreter; these costs can be, however, recovered if the party is successful at trial.

=== 4. General Advice for Witnesses ===

* Discuss whether the witness will swear or affirm their testimony.
* The microphones in court do not amplify; they are for recording purposes only. Face the judge when testifying and speak slowly, clearly, and loudly enough for the judge to hear.
* Witnesses should wear appropriate business attire.
* Witnesses should never guess, assume, or argue with the judge or one of the lawyers.
* If a lawyer or other party says, “Objection”, or the judge starts speaking, the witness should stop testifying and wait for the judge’s instructions.
* On direct examination, the witness should answer questions fully.
* On cross-examination, the witness should answer as briefly and succinctly as possible.

== D. Documentary Evidence ==

Each party should have the original and three copies of each document to be entered as an exhibit. The original will be marked as an exhibit and the other three are for the judge, the opposing party, and you to work from during the trial. Keep track of the exhibits and always refer to them by the correct number.

Before a document can be marked as an exhibit, it must be authenticated. The witness must identify its origins and that it is a true copy. Give the original document and a copy to the clerk and ask the clerk to show the original to the witness. Ask the witness to identify it: “I’m showing you a letter dated...”, “Do you recognize it?”, “Is this your signature?” or “Is it addressed to you?” When the witness has identified its origins and there are no objections, ask the judge to accept it as an exhibit: “May this be marked exhibit #1?”

Unless the court orders otherwise, Affidavits and Exhibits in small claims proceedings must be no longer than 25 pages in total, cannot be provided on a USB stick or other electronic data storage device, including a video or audio file. For more rules on the content and format of documentary evidence, see https://www.provincialcourt.bc.ca/downloads/Practice%20Directions/SMCL03.pdf.

:'''NOTE:''' In exceptional circumstances, the judge may permit a witness to provide evidence by affidavit rather than testifying at trial (''[http://canlii.ca/t/1l561 Withler and Fitzsimonds v Attorney General (Canada)]'', 2005 BCSC 1044 (CanLII), para 18; and ''[http://canlii.ca/t/fkr60 Sangha v Reliance]'', 2011 BCSC 371).

:'''NOTE:''' A judge may examine and compare headshots or handwriting, but should only place very limited weight on their own judgment in these situations (''[http://canlii.ca/t/1fr59 R. v Nikolovski]'',[1996] CanLII 158 SCC; and ''[http://canlii.ca/t/6hcz R. v Abdi]'', [1997] CanLII 4448 Ont CA).

The CRT decides whether the hearing is held in writing, orally, or a combination of the two (''CRT Rules (effective May 1, 2021)'', Rules 9.1). CRT disputes are almost always done in writing. As such evidence rules differ from those at Court. Refer to Part 8 of the CRT Rules for information about evidence: https://civilresolutionbc.ca/resources/rules-and-policies/.

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Small Claims Trial and Pre-Trial Conferences (20:XII)

2023-09-19T18:49:24Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== A. Trial Conference ==

A trial conference only applies to claims at the Vancouver (Robson Square) registry. Parties should see [[Small_Claims_Settlement_Conferences_(20:XI)|Section XI: Settlement Conferences]] for information regarding the purpose of, preparation for, and conduct of a trial conference. A trial conference is similar to a settlement conference with a few notable exceptions, such as:

* the focus will be on trial preparation rather than on settlement.
* a party does not have to attend if a lawyer, articling student, or other representative attends on that party’s behalf (''SCR'', Rule 7.5(12));
* a Trial Statement (Form 33) must be filed at least 14 days before the trial conference and served on all other parties at least 7 days before the trial conference (''SCR'', Rules 7.5(9) and (10)). The trial statement form must include 4 sections: a statement of facts, amount claimed and calculation of the amount, a witness list, and the documents intended to be relied on at trial;

* a certificate of readiness is not required as it will have been provided prior to Rule 7.4 mediation;
* the judge may require the parties to jointly retain an expert (''SCR'', Rule 7.5(14)(e)(ii)); and
* the judge may give a non-binding opinion regarding the probable outcome of the trial (''SCR'', Rule 7.5(14)(j)).

There may be consequences for failing to file and serve the Trial Statement on time (see ''SCR'', Rule 20(6); ''Yewchuk v Cleland'', 2002 BCPC 200 (CanLII); ''Irving v Irving'', 1982 CanLII 475 (BCCA); and ''Busse v Robinson Morelli Chertkow'', [1999] BCJ No. 1101 (BCCA)). The Registrar must serve a Notice of Trial Conference (Form 32) at least 30 days prior to the date set for the conference. A judge may make any order for the just, speedy, and inexpensive resolution of the claim including those enumerated in Rule 7.5(14).

== B. Pre-Trial Conference ==

At most registries, a pre-trial conference will be scheduled for claims with trials that are scheduled to be longer than one half-day. In many ways, this is similar to a settlement conference. There are basically no rules for pre-trial conferences. The general purpose is to ensure that the parties are prepared for trial, that all orders have been complied with, that all disclosure has been made, and that all witnesses will attend the trial. The judge will try to narrow the number of witnesses to reduce court time. In practice, it is a good idea to review the witnesses on your list and be prepared to address whether the evidence that each witness will give is redundant or conflicts with any rule of evidence. One of the more common issues that arises is hearsay. In addition, the judge will review the admissibility of documentary evidence, particularly that of written evidence. The judge will also ensure that the matter falls within the jurisdictional limits of the Small Claims Court and that the claim is not beyond its limitation period. Finally, even at this late date, the judge will encourage the claimants and defendants to settle the matter. The parties may receive an order allowing another 30 days after the pre-trial conference to serve a formal settlement offer to the opposing party. The offer to settle must be made according to Rule 10.1 and penalties may apply to parties who refuse the formal offer to settle. For example, if the court after trial grants the claimant a sum that is equal to or less than the defendant’s formal settlement offer, the claimant can be ordered to pay the defendant a penalty of up to 20 percent of the settlement offer.

It is not uncommon for judges at a pre-trial conference to decide the case based on the law without hearing any evidence. Some consider this to be an improper use of pre-trial conferences. However, as stated above, there are no rules governing pre-trial conferences so you should be aware of this going into a pre-trial conference.

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Small Claims Settlement Conferences (20:XI)

2023-09-19T18:46:54Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Settlement conferences are held in all court registries and are mandatory for all cases for all cases barring select exceptions: i) motor vehicle accident cases where only liability for property damage is disputed, and ii) simplified or summary trials (under now Rule 9.1 and 9.2) unless a judge orders otherwise.

== A. Who Must/Can Attend ==

The registry will serve the parties by mail with a Notice of Settlement Conference (Form 6) at least 14 days in advance (''SCR'', Rule 7(3)).

All parties, with or without legal representation, must attend the settlement conference, although there is are exceptions for: claims resulting from a motor vehicle accident, the defendant is disputing the amount of the claim but not a liability, and a person appointed by ICBC attends instead of the defendant (''SCR'', Rule 7(4)). If a party is not an individual (i.e., a company), someone who has authority to settle the claim for the company must attend (''Kamloops Dental Centre v Mcmillan'', [1996] 28 BCLR (3d) 60 (BCSC)). If a party sends a lawyer or articled student and does not attend personally or send a company representative, that party will be deemed to have not attended the settlement conference. A party may appear by telephone if an application is made to and approved by the Registrar prior to the date set for the conference (''SCR'', Rule 16(2)(c.1)). If a party does not attend or does not have full authority to settle, the judge can dismiss a claim, grant a payment order, or make any other appropriate order (''SCR'', Rules 7(17)). If a party attends but is unprepared, a judge may order the unprepared party to pay the other party’s reasonable costs (''SCR'', Rules 7(6) and 20(6)).

Witnesses cannot attend except in unusual and exceptional cases. A witness who does attend the settlement conference will usually be asked to wait outside.

''Support persons'': unless a judge orders or directs otherwise, a litigant may have a support person with them at any small claims or family proceeding except for settlement/trial conferences, family case conferences, or family settlement conferences. Litigants must inform the judge before the commencement of the proceedings that a support person is present with them. Rules for the conduct and role of support persons can be found in NP11 (https://www.provincialcourt.bc.ca/downloads/Practice%20Directions/NP11.pdf).

== B. What to Bring ==

Each party must bring to a settlement conference all relevant documents and reports whether the party intends to use them at trial or not (''SCR'', Rule 7(5)). Documents include any contracts, invoices, bills of sale, business records, and photographs.

Each party should prepare a brief chronological summary of its case and support it with evidence. Claimants should bring more than one written estimate or quote if there is a large sum of money involved.

Pursuant to Small Claims Rule 7(5), each party must submit all relevant documents and reports to the registry at least 14 days before the date of the conference, and serve all relevant documents and reports on the other parties at least 7 days before the settlement conference.

'''Note''': settlement conferences held via Teams may have different deadlines for filing and service, as well as restrictions on the length of documents. Parties should adhere to the specific requirements set out in the notice of settlement/trial conference and any relevant orders made in respect to the conference. For more information on requirements for documents for use in settlement conferences and small claims proceedings generally, see:
https://www.provincialcourt.bc.ca/downloads/Practice%20Directions/SMCL03.pdf

'''Note:''' subject to specific orders for disclosure, the content of a party’s settlement conference documents is somewhat a matter of discretion. However, providing a convincing array of evidence can be strategically beneficial in presenting a strong case and a greater incentive to the other parties to settle.

If the claim is for personal injury, the claimant must file and serve a Form 7 certificate of readiness and required records before a settlement conference will be scheduled (''SCR'', Rule 7(5)). There can be consequences for failing to file the certificate of readiness on time (''SCR'', Rule 7(5)).

== C. What May Happen ==

A settlement conference is scheduled for 30 to 60 minutes before a judge in a conference room at the courthouse. The judge at the settlement/trial conference will not be the judge at trial if a trial is necessary. The parties will sit at a table with the judge. The judge will say a few words and ask each party to give a brief summary of their case. The claimant generally goes first. The judge may then lead both the claimant and defendant into a discussion on what, if anything, the parties can agree on. If the parties agree on the final result, the judge will make the order. However, the parties may agree on some issues and leave issues in dispute to be resolved at trial. The judge will assess how much time is required for trial.

A judge at a settlement conference may make any order for the just, speedy, and inexpensive resolution of the claim (''SCR'', Rule 7(14)). This includes mediating and making orders regarding admissibility of evidence, inspections of evidence, or production of evidence to the other party. The judge may also dismiss a claim that discloses no triable issue, is without reasonable grounds, is frivolous, or is an abuse of the court’s process (''SCR'', Rule 7(14)((i); ''Belanger v AT&T Canada Inc.'', [1994] BCJ No. 2792; ''Cohen v Kirkpatrick'', 1993 CanLII 2059 (BCSC); and ''Artisan Floor Co. v Lam'', [1993] 76 BCLR (2d) 384 (BCSC)). Examples include claims that are outside the court’s jurisdiction, where the claimant presents no evidence, or where the limitation period at the date of filing the Notice of Claim had expired. A judge cannot dismiss a case at the settlement conference on the basis of issues relating to the credibility of witnesses or evidence.

A judge may also order that multiple claims be heard at the same time, or consolidated into one claim (''Schab v Active Bailiff Service Ltd.'', [1993] BCJ No. 2936). The distinction is important. Claims heard at the same time may each individually be awarded up to $35,000, while claims which are consolidated into one claim may only be awarded $35,000 combined.

Any agreement valid under contract law can result in a binding settlement. Agreements entered into by lawyers with their client's knowledge and consent are binding but can be set aside in some circumstances ([https://www.canlii.org/en/bc/bcpc/doc/2002/2002bcpc69/2002bcpc69.html?searchUrlHash=AAAAAQAySGFydmV5IHYgQnJpdGlzaCBDb2x1bWJpYSBDb3JwcyBvZiBDb21taXNzaW9uYWlyZXMAAAAAAQ&resultIndex=1 ''Harvey v British Columbia Corps of Commissionaires'', 2002 BCPC 69]).

If all claims are not settled, the parties should acquire a record of the settlement conference, which may outline all of the issues in the case, all admissions, the number of witnesses, the anticipated length of the trial, and anything that must be disclosed.

:'''NOTE:''' If the settlement pertains to an action against a lawyer for which a complaint has been filed with the Law Society, a party cannot use complaint withdrawal as a bargaining technique; it is improper during settlement negotiations to offer to withdraw a complaint against a lawyer as a part of the settlement ([https://www.canlii.org/en/bc/bcpc/doc/2006/2006bcpc480/2006bcpc480.html?searchUrlHash=AAAAAQAvR29yZCBIaWxsIExvZyBIb21lcyBMdGQuIHYgQ2FuY2VkYXIgTG9nIEhvbWVzLCAAAAAAAQ&resultIndex=1 ''Gord Hill Log Homes Ltd. v Cancedar Log Homes'', 2006 BCPC 480]).

== D. Disclosure ==

Trial by ambush is not permitted. Each party is entitled to know the evidence for and against its position. If the parties cannot reach a settlement, the focus will turn to trial preparation. The judge at a settlement conference has the power to order the production of documents and evidence. Each party should attend the settlement conference with a list of documents and evidence that is believed to be in the possession of the other party.

A judge will order the parties to exchange copies of all documents or allow for their inspection before trial. The disclosure must be timely ([https://www.canlii.org/en/bc/bcsc/doc/2002/2002bcsc516/2002bcsc516.html?searchUrlHash=AAAAAQA2R29sZGVuIENhcGl0YWwgU2VjdXJpdGllcyBMdGQuIHYgSG9sbWVzLCAyMDAyIEJDU0MgNTE2AAAAAAE&resultIndex=1 ''Golden Capital Securities Ltd. v Holmes'', 2002 BCSC 516]). These documents should be compiled in a tabbed binder for easy reference at trial.

Each party must be prepared to disclose the name of each witness that that party intends to call, indicate what evidence each witness will give, and provide a time estimate. If expert evidence will be used, it is helpful if a written report (or at least a draft copy) is available for the settlement conference. If an expert report is not available, parties will be ordered to exchange those reports prior to trial. There is a minimum deadline of 30 days before trial (''SCR'', Rules 10(3) and (4)); however, the judge at the settlement conference can be asked to change the time limits.

If a party does not comply with a disclosure order, a judge may adjourn the trial, the settlement conference, or both, order that party to pay expenses, order the trial to proceed without allowing that evidence to be used, or dismiss the action.

:'''NOTE:''' For case law relating to the disclosure of medical documents and ethical obligations of physicians to their patients see [http://canlii.ca/t/216h1 ''Halliday v McCulloch'', [1986<nowiki>]</nowiki> BCJ No 223 (BCCA)], [http://canlii.ca/t/g92dd ''Hope v Brown'', [1990<nowiki>]</nowiki> BCJ No. 2586], [http://canlii.ca/t/1d1t8 ''Davies v Milne'', 1999 CanLII 6654 (BCSC)], and [http://canlii.ca/t/1g5q6 ''Cunningham v Slubowski'', 2003 BCSC 1854.]

:'''NOTE:''' For case law on obtaining disclosure from the Crown (e.g., from a related criminal case) in a civil case see [http://canlii.ca/t/1n0h2 ''Huang (litigation guardian of) v Sadler'', [2006<nowiki>]</nowiki> BCJ No. 758 (BCSC)] and [http://canlii.ca/t/21zxc ''Wong v Antunes'', 2008 BCSC 1739].

:'''NOTE:''' For case law pertaining to the admissibility of evidence obtained through electronic surveillance (e.g., recording telephone conversations and videotaping) and whether it will be considered a violation of the ''Privacy Act'', RSBC 1996, c 373, see [http://canlii.ca/t/1rfst ''Watts v Klaemt'', 2007 BCSC 662], and [http://canlii.ca/t/1nh0s ''Cam v Hood'', 2006 BCSC 842]. For case law on obtaining evidence from third parties see [http://canlii.ca/t/1q91l ''Lewis v Frye'', 2007 BCSC 89].

A judge may also order the exchange of all case law prior to the trial date.

Parties should consider writing to the other side after the settlement conference to confirm the deadline, the documents required, and remedies that will be pursued if there is no disclosure. When sending documents, it is important to include a list or outline of what material is enclosed.

== E. Enforcing a Settlement Agreement ==

If an agreement is reached at a settlement conference includes payment, and if a party does not comply, the agreement can be canceled (''SCR'', Rule 7(20)). After filing an affidavit describing the non-compliance, the person entitled to payment may file a payment order for either the amount agreed to by the parties as the default amount and noted on the record as the default amount endorsed by the judge at the settlement conference or the full amount of the original claim if there was no default amount endorsed by the judge.

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Small Claims Mediation (20:X)

2023-09-19T18:41:04Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Mediation is available through the courts for claims between $10,000 and $35,000. Rule 7.2, which mandated mediation for certain claims under $10,000, was repealed effective January 1st, 2019. Parties are also free to meditate on their own. See [[Choosing_the_Proper_Forum_for_Small_Claims_(20:IV)|Section IV.D.: Alternative Dispute Resolution]].

== A. Claims Between $10,000 and $35,000 – Rule 7.3 ==

This rule applies to all registries except the Vancouver (Robson Square) court registry. See [[Choosing_the_Proper_Forum_for_Small_Claims_(20:IV)|Section IV.D.: Alternative Dispute Resolution]].

Any party to a proceeding where the amount of a claim, counterclaim, or third-party notice exceeds $10,000 may initiate mediation by filing a Notice to Mediate (Form 29) and serving it on every other party to the proceeding (''SCR'', Rules 7.3(2), (3), and (5)). If mediation has been scheduled all parties must select a mediator, attend the mediation, and agree on the amount that each party will pay towards the costs of mediation (''SCR'', Rules 7.3(9)-(10), (17)-(23), and (33)-(36)). By default, the parties will split the cost (''SCR'', Rule 7.3(35)(b)(i)). If the parties cannot agree on a mediator, the BC Mediator Roster Society may be requested to appoint one (''SCR'', Rule 7.3(10)).

Parties must attend the mediation session in person unless an application is filed for adjournment (''SCR'', Rule 7.3(30)), for a teleconference (Rule 7.3(25)), or for an exemption (Rule 7.3(28)). If a party fails to attend as required, the mediator will fill out a verification of default (Form 31) and provide it to the party in attendance (''SCR'', Rule 7.3(37). After filing Form 31, the party in attendance can file a request for judgment or dismissal (Form 23) which dismisses the claim if the party not attending is the claimant or gives a default order if the party not attending is the defendant (''SCR'', Rules 7.3(38)-(41)).

== B. Preparing for Mediation ==

Preparation is essential in order to achieve the most from mediation. Each party should provide copies of relevant documents to the other party. Parties have the ability to create their own resolution and should consider creative settlement options. Mediation is not a forum to assess blame or resolve legal questions; it is designed to end the dispute in a manner that satisfactorily addresses the interests, legal and otherwise, of each party. It is important to listen to the other party expressing their interests and allow the mediator to help the parties resolve the dispute.

== C. Procedure ==

Mediation is a flexible process that allows the mediator to help the parties achieve a settlement. A mediator is not necessarily a lawyer but is a skilled, experienced professional. Although mediation sessions can vary with respect to the process, there are generally some standard steps that are followed.

All parties and representatives will be seated at a table with one to three mediators. The mediators will describe the mediation process, and ask each person attending to sign an Agreement to Mediate. This must be signed in order for the mediation process to proceed. The Agreement to Mediate form includes a confidentiality clause (any information disclosed in the session that is not otherwise discoverable is inadmissible and mediators cannot be called to testify in later proceedings) and ensures that the parties present have full authority to settle the case.

After signing the Agreement to Mediate, both parties will have a short time to tell their story. The mediator will summarize the key points in dispute. Once the main issues are identified, the mediator will look for common interests in an attempt to assist parties to resolve the dispute. The mediator will assist the parties to negotiate and reach an amicable resolution. During the process, it is not uncommon for a mediator to have a private conference with each party.

If the parties agree to a resolution, the mediator will draft an Agreement setting out the terms of the resolution. It may include monetary and non-monetary terms and may have a non-compliance clause setting out consequences for failing to fulfill the obligations set out in the Agreement. If there is no non-compliance clause, the default amount will be the original amount claimed in the action. The mediator will file the agreement in the Small Claims Court registry after each party signs the agreement.

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Introduction to Small Claims (20:I)

2023-09-19T18:37:40Z

Clicklaw Editor:

Introduction to Small Claims (20:I)

2023-09-19T18:37:18Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicles accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

[[File:LSLAP 20 I small claim process image 1.png|alt={Small claim process}]]
''Figure from Provincial Court of BC website: https://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters''

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see https://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters/chief-judge-practice-directions and Appendix “A” of NP 28: https://www.provincialcourt.bc.ca/downloads/Practice%20Directions/NP28.pdf

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

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BC Human Rights Code (6:III)

2023-09-19T18:31:30Z

Clicklaw Editor: /* E. The Process for Human Rights Complaints */

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = rights}}

The ''BC Human Rights Code'' (HRC or the ''Code'') protects people from discrimination in certain protected areas and provides a mechanism for filing a complaint regarding discriminatory treatment. It is administered by the BC Human Rights Tribunal. The HRC applies to matters within the jurisdiction of the province (as established by s. 91 of the Constitution Act, 1867) and covers both public and private bodies, as well as individuals. For example, the HRC applies to provincially regulated employers, unions, professional associations, most commercial businesses, Crown corporations, landlord-tenant relationships, and the provincial government itself.

The Tribunal’s decisions are available online at http://www.bchrt.bc.ca/law-library/decisions. They are indexed by year dating back to 1997 and searchable based on a variety of criteria. They are also available on CanLII BC at http://www.canlii.org/en/bc/bchrt.

== A. Framework of a Discrimination Complaint ==

=== 1. Complainant's Case ===

As outlined in ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61 at para 33, the complainant must prove the following three elements on a balance of probabilities to establish their case:

# That they have a characteristic that is protected under the HRC;
# That they experienced an adverse impact in an area protected by the HRC; and
# That their protected characteristic was a factor in the adverse impact they experienced.

Direct discrimination occurs when a person or group is singled out for differential treatment based on their protected characteristic(s) ([https://canlii.ca/t/1fqm4 M. v H.,] 1999 2 SCR 3). Racial slurs, sexual harassment, and homophobic comments are all examples of "direct discrimination."

Indirect or “adverse effect" discrimination occurs when laws or policies do not overtly discriminate, but produce a disproportionate negative impact on members of groups sharing a protected characteristic ''([https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18510/index.do Fraser v. Canada (Attorney General)]'', 2020 SCC 28). Many complaints of discrimination on the basis of disability involve adverse effect discrimination because they relate to a facially neutral rule, standard, policy or practice that creates a disadvantage for someone in connection with their disability.

If any one of the three elements of the complainant's case is missing, there is no discrimination. If the complainant proves the three elements of their case, then the burden shifts to the respondent to justify its conduct. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to have occurred.

=== 2. Respondent's Case ===

In the employment context, a respondent can justify its conduct by proving on a balance of probabilities that the rule, standard, practice, or requirement being challenged is a bona fide occupational requirement (BFOR). In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1724/index.do British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union]'', [1999] 3 SCR 3 at para 54 [Meiorin], the Supreme Court of Canada (SCC) set out a three-step analysis for determining whether a standard is a BFOR:

# The employer adopted the standard for a purpose rationally connected to the performance of the job;
# The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
# The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship.

In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1761/index.do British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights)]'', [1999] 3 SCR 868 [Grismer] at 881, the Supreme Court of Canada considered the application of the ''Meiorin'' test to a public services complaint and set out the three-stage analysis for determining whether the respondent had a ''bona fide'' and reasonable justification for its conduct:

# The respondent’s behaviour was for a purpose or goal that is rationally connected to the function being performed;
# The respondent behaved in good faith; and
# The respondent’s behaviour was reasonably necessary to accomplish the purpose or goal, in the sense that the respondent cannot accommodate the complainant without undue hardship.

Note that most legal disputes arise in regard to the third part of the test – that is, whether the respondent reasonably accommodated the complainant to the point of undue hardship.

== B. Protections and Exemptions ==

The HRC provides protection against discrimination in several different areas, which are listed in sections 7–14. These sections will be further detailed in order below. Please refer to '''Section III.A.1-7'''. However, for many of these protected areas, the HRC provides certain exceptions for which discrimination is not prohibited.

Additionally, section 41, commonly referred to as the group rights exemption, allows non-profit organizations to engage in what might otherwise be deemed prohibited discriminatory conduct. It allows charitable, philanthropic, educational, and other not-for-profit organizations to give a preference to members of the identifiable group or class of persons they serve. For more information, please see ''[https://www.canlii.org/en/bc/bcca/doc/2005/2005bcca601/2005bcca601.html?resultIndex=1 Vancouver Rape Relief Society v Nixon]'', 2005 BCCA 601 at paras 43-59 [''Nixon'']. (Please note that this case involves a sex-binary-focused discussion of transgender identity that may be troubling for some readers).

Furthermore, under section 42, it is not discriminatory to plan, advertise, adopt, or implement an employment equity program that has the objective of ameliorating the conditions of individuals or groups who are disadvantaged because of Indigenous identity, race, colour, ancestry, place of origin, physical or mental disability, sex, sexual orientation, or gender identity or expression, and achieves or is likely to achieve that purpose. Section 42 also gives the Human Rights Commissioner jurisdiction to approve special programs that are aimed at improving the situation of individuals or groups that have suffered historical disadvantage. If pre-approved, a special program is deemed not to contravene the Code.

=== 1. Discriminatory Publication ===

Section 7 deals with forms of discrimination against individuals or groups of individuals, which are published, displayed, or made public. This section prohibits hate literature and other such communications that expose or are likely to expose someone in a protected group to hatred or contempt, as well as publications that indicate discrimination or intent to discriminate against a protected group. Please refer to ''[http://www.bchrt.bc.ca/shareddocs/decisions/2019/mar/58_CORRECTED_Oger_v_Whatcott_No_7_2019_BCHRT_58.pdf Oger v Whatcott]'' (No 7), 2019 BCHRT 58 at paras 93—97 for the former, and [https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt228/2018bchrt228.html?resultIndex=1&fbclid=IwAR29aclgXwxQnU6peHALajehkvX-uSD4VK0wIv1zAnArQ-vHynzNXoWIMXI Li v Mr B], 2018 BCHRT 228 at paras 95—97 [''Li''] for the latter.

'''Exception:''' Section 7 does '''not''' apply to communications that are intended to be private or are related to activities otherwise permitted under the ''HRC'', see s. 7(2) and ''Li'' at paras 98–104.

=== 2. Discrimination in Accommodations, Services and Facilities “Customarily Available to the Public” ===

Section 8 states that a person may not deny or discriminate against any person or class of persons regarding an accommodation, service, or facility customarily available to the public because of that person’s Indigenous Identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression and/or age.

''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1006/index.do University of British Columbia v Berg]'', [1993] 2 SCR 353 at 384–387 [Berg] explains the concept of “customarily available to the public”. A service is customarily available to the public if the nature of the relationship is public. Courts and tribunals look at the relationship between the facility and the complainant, as well as the nature of the service itself. In ''Berg'', the court found that a university has its own public and that the relationships between students and professors, who present the public face of the university, are public in this context. Please refer to ''[https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc180/2009bcsc180.html HMTQ v McGrath]'', 2009 BCSC 180 at paras 89–93 for a more recent case that discusses when a service is “customarily available to the public”.

Additionally, courts have found that services provided to members of a group who come together as a result of a private selection process, based on their personal attributes do not qualify as services “customarily available to the public”, and are therefore not subject to section 8 of the HRC. Please refer to ''[https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca17/2007bcca17.html?resultIndex=1 Marine Drive Golf Club v Buntain et al and BC Human Rights Tribunal]'', 2007 BCCA 17 at paras 48–56.

While there is no enumerated list of relationships that count as "customarily available to the public," locales such as pubs, night clubs, hotels, theatres, transportation services, education facilities, insurance, medical treatment in hospitals and clinics, strata council and property management services in condominiums, services provided by police, access to sidewalks and public space, government services, and participation in sporting events have all been found to entail public relationships. Licensing services and facilities may also involve public relationships. For example, discrimination prohibited by section 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue driver's licenses to those with certain visual impairments regardless of actual driving ability: ''[https://www.canlii.org/en/ca/scc/doc/1999/1999canlii646/1999canlii646.html?resultIndex=1 BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights)]'', [1999] 3 SCR 868 [''Grismer''].

Legislation is not a “service customarily available to the public” and bare challenges to legislation can’t proceed at the HRT, see e.g. ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt76/2019bchrt76.html?resultIndex=1 Phillips v BC Ministry of the Attorney General]'', 2019 BCHRT 76 at paras 11–12.

For a recent case setting out the three-part test for prima facie discrimination in a services context, see ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61, a Supreme Court of Canada case about a school district that cancelled a special education program, requiring a dyslexic student to enroll in specialized private school. The Supreme Court of Canada reviewed whether the school district discriminated against the student by failing to provide necessary accommodation, and ultimately upheld the BC Human Rights Tribunal’s finding of discrimination.

Moore confirmed the test for prima facie discrimination, also known as the “complainant’s case” (on the move away from Latin in human rights cases, see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt9/2018bchrt9.html?resultIndex=1 Vik v Finamore (No. 2)]'', 2018 BCHRT 9 at para. 48-50). To succeed in their complaint, a complainant must show:

# That they have a characteristic that is protected under the HRC;
# That they experienced an adverse impact with respect to an area protected by the HRC; and
# That their protected characteristic was a factor in the adverse impact they experienced. This is also known as the “nexus”.

'''Defences:''' If a complainant can prove the three elements of their case set out above, the burden shifts to the respondent to justify their conduct. There are a number of circumstances where adverse treatment on the basis of a protected characteristic is not discrimination, if it can be shown to be supported by a “''bona fide'' and reasonable justification” (BFRJ) (as per the wording of section 8(1)). For the most authoritative perspective, see ''Grismer'', which applied the three-part ''Meiorin'' test from the Supreme Court of Canada in an attempt to justify a discriminatory standard by raising a BFRJ. This attempt was unsuccessful (see also Subsection 6: Discrimination in Employment and the Duty to Accommodate). 

The respondent must justify the standard by satisfying three elements:

# It adopted the standard for a purpose or goal that is rationally connected to the function being performed
# It adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
# The standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship

'''Exceptions:''' Section 8(2) also contains certain built-in exceptions. Discrimination based on sex is permitted insofar as it relates to the maintenance of public decency. For a case on the interpretation of public decency in the context of excluding transgender peoples from public washrooms, see [https://canlii.ca/t/g965p Sheridan v. Sanctuary Investments Ltd. (No. 3), 1999] 33 CHRR 467 in which the Tribunal rejected the argument that it was necessary to exclude a transgender woman from the washroom matching her gender identity in order to maintain "public decency."

Discrimination based on sex, physical or mental disability, or age is permitted insofar as it relates to the determination of premiums or benefits under life or health insurance policies. Note that statutory exceptions to human rights legislation are to be narrowly construed ([https://canlii.ca/t/1fs94 Zurich Insurance Co. v. Ontario (Human Rights Comm.), [1992]] 2 SCR 321).

=== 3. Discrimination in Purchase and Rental of Property ===

Section 9 provides that a person or class of persons must not be denied the opportunity to purchase real property due to their Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sex, sexual orientation and/or gender identity or expression.

Section 10 states that a person shall not be denied the right to occupy any space that is represented as being available for occupancy or be discriminated against with respect to a term or condition of the tenancy on the basis of Indigenous Identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, and/or lawful source of income.

'''Defences:''' Although the text of sections 9 and 10 do not contain language specifically providing for a defence to a claim of discrimination under these provisions, like all respondents, landlords and property sellers may be able to justify ''prima facie'' discrimination if they can satisfy the three elements of the ''Grismer/Meiorin'' test. This will require that they accommodated the complainant to the point of undue hardship.

'''Exceptions:''' Section 10(2)(a) says the protection from discrimination in tenancy does not apply if the tenant is sharing the use of any sleeping, bathroom, or cooking facilities with the person making the representation (e.g. as a roommate). Furthermore, the reserving of specific residences for individuals aged 55 or older or for people with disabilities does not constitute discrimination (HRC, s 10(2)(b) and (c)).

=== 4. Discrimination in Employment Advertisements and Interviews ===

Section 11 prohibits employment advertisements that express limitations, specifications or preferences based on Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sexual orientation, sex, gender identity or expression and/or age. Refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2007/2007bchrt99/2007bchrt99.html?resultIndex=1 Anderson v Thompson Creek Mining Ltd Endako Mines]'', 2007 BCHRT 99.

'''Exception:''' An employment advertisement that expresses a limitation, specification or preference as to a protected characteristic may be permitted if it is based on “''bona fide'' occupational requirement(s)” as per the wording of section 11. There are also exceptions for non-profit organizations and employment equity programs (see Exemptions on 6-6).

For case law on discrimination during the interview process, please refer to ''Khalil v Woori Education Group'', 2012 BCHRT 186 at paras 29-45. Under section 13, an employer cannot refuse to employ someone on the basis of any of the prohibited grounds of discrimination unless there is a ''bona fide'' occupational requirement (see [[{{PAGENAME}}#6. Discrimination in Employment and the Duty to Accommodate | Subsection 6: Discrimination in Employment and the Duty to Accommodate]]).

=== 5. Discrimination in Wages ===

Section 12 states that wage parity between sexes is required for similar or substantially similar jobs. Please refer to ''Kraska v Pennock'', 2011 BCSC 109. Most of the remedies under this section are also available under section 13, which does not have a limitation on the period of time during which wages can be claimed.

'''Limitation Dates:''' Section 12(5) of the HRC states:
:(a) "The action must be commenced no later than 12 months from the termination of the employee's services, and
:(b) The action applies only to wages of an employee during the 12 month period immediately before the earlier of the date of the employee's termination or the commencement of the action."

Most of the remedies under this section are also available under section 13, which does not have a limitation on the period of time during which wages can be claimed.

'''Exception:''' A difference in the rate of pay between employees of different sexes based on a factor '''other''' than sex is allowed, provided that the factor on which the difference is based would reasonably justify the difference.

=== 6. Discrimination in Employment and the Duty to Accommodate ===

Section 13 provides that no person shall refuse to employ another person or discriminate against a person regarding employment or any term or condition of employment on the basis of Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, and/or because that person has a criminal record that is unrelated to the employment. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2010/2010bchrt13/2010bchrt13.html Ratzlaff v Marpaul Construction Ltd]'', 2010 BCHRT 13 for one example of an employment case. This section may extend to volunteers depending on the circumstances (''Nixon''). When determining whether a volunteer is captured by this section of the HRC, the Tribunal will consider the following:

#If there is a formal process to recruit volunteers;
#If there is a training process with defined tasks;
#Whether volunteers have to agree to follow the organizations policies and practises;
#If there are requirements about when or how often a volunteer must be available; and
#The role of volunteers in the organization.

For more information on volunteers, see ''[https://www.canlii.org/en/bc/bchrt/doc/2017/2017bchrt123/2017bchrt123.html Ferri v Society of Saint Vincent de Paul and another]'', 2017 BCHRT 123 at paras 29-33.

Because all individuals over 19 are protected by the ground of age, individuals in both the public and private sector are able to choose the age at which they wish to retire and are protected from discrimination based on age (HRC, s 1).

Section 44(2) states that an employer is responsible for the actions of their employees, and an employer will be liable for an employee's actions when the employee is acting within the scope of their authority or job duties.

'''''Bona Fide'' Occupational Requirement (BFOR) Defence''': If a complainant proves the three elements of their case set out in ''Moore'', the burden shifts to the respondent to justify their conduct. Adverse treatment on the basis of a protected characteristic may be justified when it relates to a “''bona fide'' occupational requirement” (BFOR): see s. 13(4). In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1724/index.do British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union]'', [1999] 3 SCR 3 at para 54 [''Meiorin''], the Supreme Court of Canada established a three-part test for establishing a BFOR.
# The employer adopted the standard for a purpose rationally connected to the performance of the job;
# The employer adopted the particular standard with an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
# The standard is reasonably necessary to fulfil its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing undue hardship.

For a specific example of a BCHRT case that applies the BFOR test in a disability context, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt196/2009bchrt196.html?resultIndex=1 Kerr v Boehringer Ingelheim (Canada) Ltd (No 4)]'', 2009 BCHRT 196 [''Kerr''].

'''Undue Hardship''': What may be considered “undue hardship” varies by employer and depends on the circumstances. In ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/910/index.do Central Okanagan School District No 23 v Renaud]'', [1992] 2 SCR 970 at 985—986, the Supreme Court of Canada held that an undue hardship is more than a minor inconvenience and that actual interference with the employer’s business must be established. Factors the court may consider include financial cost, health and safety, and flexibility and size of the workplace. The burden of proving an undue hardship lies on the respondent and will require evidence that all reasonable accommodations, short of undue hardship, have been provided. For more information on the duty to accommodate, please see the BC Human Rights Clinic’s ''Legal Information'' page at https://bchrc.net/legal-information/do-i-have-a-complaint and their blog at https://bchrc.net/tag/duty-to-accomodate.

'''Other Exemptions''': Distinctions based on age are not prohibited insofar as they relate to a ''bona fide'' seniority scheme. Distinctions based on marital status, physical or mental disability, sex, or age are permitted under ''bona fide'' retirement, superannuation, or pension plans, and under ''bona fide'' insurance plans, including those which are self-funded by employers or provided by third parties (HRC, s 13(3)).

=== 7. Discrimination by Unions, Employer Organizations or Occupational Associations ===

Section 14 states that trade unions, employers’ organizations, and occupational associations may not deny membership to any person or discriminate against a person on the basis of Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, and/or unrelated criminal record. Please refer to ''De Lima v Empire Landmark Hotel and Major'', 2006 BCHRT 440.

Since persons are not covered by section 14, protection against denial of membership has been held to apply only against an implicated union, organization, or association, and not against an individual. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt53/2005bchrt53.html?resultIndex=1 Ratsoy v BC Teachers’ Federation]'', 2005 BCHRT 53 at para 23. This differs from other protections granted by the HRC, which, in appropriate circumstances, generally do allow an action to be brought against both an organization (e.g. an employer) and its individual members (e.g. a manager).

There are two limited ways in which unions can be held liable for discrimination. The first is by creating or participating in formulating a discriminatory workplace rule, and the second is by impeding an employer’s efforts to accommodate an employee (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt44/2018bchrt44.html?resultIndex=1 Chestacow v Mount St Marie Hospital of Marie Esther Society]'', [2018] BCHRT No 44 at para 32 [''Chestacow'']). In respect of the latter, a union may be required to waive seniority rights or other collective agreement obligations in order to facilitate the accommodation of an employee with a protected characteristic, such as a disability.

===8. Retaliation===

Section 43 of the Code protects people from retaliation for filing a human rights complaint, or for indicating that they might file a human rights complaint. It also protects from retaliation anyone who assists, or who might assist, someone to make a complaint.

The test for retaliation is set out in [https://canlii.ca/t/hqtpj Gichuru v Pallai, 2018] BCCA 78 at paras 50–58. To prove retaliation, a complaint must show:

a) The respondent was aware that the complainant had made a complaint;

b) The respondent engaged in or threatened to engage in conduct described in s. 43; and

c) There is a sufficient connection between the impugned conduct and the previous complaint. This connection may be established by proving that the respondent intended to retaliate, or may be inferred where the respondent can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant, apprised of the facts, at the time of the impugned conduct.

In Sales Associate v. Aurora BioMed, the Tribunal interpreted the meaning of the protection for someone who “might” make a complaint. The Tribunal concluded that the protection applies where the retaliator is aware that a person might pursue some legal recourse for discrimination. It is not necessary to prove that the retaliator was specifically aware of the possibility of a human rights complaint at the Human Rights Tribunal (see paras. 151-163).

== C. Prohibited Grounds of Discrimination ==

=== 1. General ===

Prohibited grounds of discrimination include Indigenous Identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age (for those 19 and over), criminal record (that is not related to the employment, union or occupational association), and lawful source of income (in tenancy only). Note that not all of these grounds of discrimination are protected in all of the areas listed in sections 7–14 of the HRC. For example, the HRC does not prohibit landlords from discriminating on the basis of a tenant’s political beliefs. The grounds of discrimination that apply depend on the section of the HRC in question. One must first decide which section is involved and then check to see which grounds are associated with that section. Please refer to the helpful chart on the following page.

To determine whether a violation of the HRC has occurred, consult the relevant section of the HRC and review recent case law. Case law can be found on the BC Human Rights Tribunal website ([http://www.bchrt.bc.ca/law-library/decisions www.bchrt.bc.ca/law-library/decisions]), indexed by year, and is also available on CanLII BC.

It should be noted that a complainant might file a complaint on a combination of grounds. A prohibited ground does not need to have been the sole or primary motivating factor behind the discrimination; it need only have been one contributing factor. Please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15471/index.do Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)]'', 2015 SCC 39 at paras 45-52.

Discrimination need not be intentional (HRC, s 2). Any policy or action that has an adverse effect on a protected group and which cannot be justified will be considered discriminatory. Please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do Ontario (Human Rights Commission) v Simpsons-Sears Ltd]'', [1985] 2 SCR 536 at 549 for an example of indirect discrimination, also known as adverse effect discrimination. The policy or act does not have to affect every person in the group for it to be considered discriminatory. For example, if a policy discriminates against only people who are pregnant it could still be considered sex discrimination. It is also possible that an act or policy may affect men as well as women, but affect one sex to a disproportionate degree, in which case it could also qualify as sex discrimination.

Discrimination can also be established on an intersectional basis. This means that the discriminatory action had an adverse impact on the basis of multiple protected grounds, occurring simultaneously, which cannot easily be separated from one another. It is not always necessary to establish that each individual ground has been met where intersectional discrimination can be established. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt302/2005bchrt302.html?resultIndex=1 Radek v Henderson Development (Canada) Ltd]'', 2005 BCHRT 302 at paras 463–467.

The Chart below illustrates how the HRC's protected grounds apply to each area of protection:

{| class="wikitable"
! style="font-weight: bold;" | Protected Grounds
! colspan="7" style="text-align: center; font-weight: bold;" | Protected Areas
|-
|
| style="text-align: center;" | Written Publications
| style="text-align: center;" | Public Services &
Accommodation
| style="text-align: center;" | Purchase of
Property
| style="text-align: center;" | Tenancy
| style="text-align: center;" | Employment
Advertisements
| style="text-align: center;" | Employment
| style="text-align: center;" | Unions &
Associations
|-
| Race
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Colour
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Ancestry
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Place of Origin
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Political Belief
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Religion
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Marital Status
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Family Status
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Physical or Mental
Disability
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Sex
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Sexual Orientation
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Gender Identity or Expression ''(NEW)''
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Age
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Criminal or
Summary Conviction
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | v
|-
| Source of Income
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | v
| style="text-align: center;" | x
| style="text-align: center;" | x
| style="text-align: center;" | x
|-
| Indigenous Identity
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
| style="text-align: center;" | v
|}

=== 2. Race, Colour, Ancestry, and Place of Origin ===

The grounds of race, colour, ancestry, and place of origin are included in the HRC as a means to combat racism and racial discrimination. Each of these grounds is protected in the HRC and may be cited individually in connection with a discriminatory incident or grouped together in order to better illustrate a particular situation. For further information on how the above grounds interact, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt3/2009bchrt3.html?resultIndex=1 Torres v Langtry Industries Ltd, 2009 BCHRT 3]''.

Discrimination on the basis of race, colour, ancestry, or place of origin can also be established where the respondent caused harm to the claimant by taking advantage of a vulnerability caused by the claimant's race, colour, ancestry or place of origin. For more information, see ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt60/2015bchrt60.html?resultIndex=1 PN v FR and another (No 2)]'', 2015 BCHRT 60. In BC, the grounds of race, colour, ancestry and place of origin are protected in the following areas:
* publication
* public services such as schools, government programs, restaurants and stores
* purchase of property
* tenancy
* employment advertising and employment, and
* membership in a trade union, employer’s organization, or occupational association.
For a recent case concerning discrimination on the basis of race in the employment context, please see ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt136/2019bchrt136.html?resultIndex=1 Francis v. BC Ministry of Justice (No. 3)]'', 2019 BCHRT 136.

Note that the Tribunal has recognized that racism can be subtle and is sensitive to this fact. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt60/2006bchrt60.html?resultIndex=1 Mezghrani v Canada Youth Orange Network Inc]'', 2006 BCHRT 60 at para 28.

The Tribunal has acknowledged that while anti-Black racism exists in Canada and continues to create impediments to the full and free participation of Black Canadians in the economic, social, political and cultural life of BC, there is a lack of cases dealing with anti-Black racism at the Tribunal level. Given that anti-Black racism is a "distinct form of racism," the lack of these types of cases has been a factor that supports a complaint being accepted despite being filed late; please refer to [https://canlii.ca/t/jllhh Umolo v. Shoppers Drug Mart and others,] 2021 BCHRT 166 at para 35.

=== 3. Political Belief ===

The HRC provides protection from discrimination due to political beliefs and/or affiliations in the areas of employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association.

In BC, few human rights cases have been decided on the ground of political belief. The Tribunal has, however, identified two key principles in determining whether a claimant’s belief should be protected under the HRC:

#Political belief is to be given a liberal definition; it is not confined to partisan political beliefs. Hence, political beliefs are not limited to beliefs about recognized or registered political parties.
#Political belief is not unlimited; for example, views about matters such as business or human resources decisions an employer may make do not come within its ambit.

Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt462/2006bchrt462.html?resultIndex=1 Prokopetz and Talkkari v Burnaby Firefighters’ Union and City of Burnaby]'', 2006 BCHRT 462 at para 31 and [https://www.canlii.org/en/bc/bchrt/doc/2016/2016bchrt124/2016bchrt124.html?resultIndex=1 Fraser v British Columbia (Ministry of Forests)], 2016 BCHRT 124. See ''[https://www.canlii.org/en/bc/bchrt/doc/2016/2016bchrt50/2016bchrt50.html?resultIndex=1 Bratzer v Victoria Police Department]'', [2016] BCHRT No 50 for a unique example of how political belief can be framed. In this case, an officer of the Victoria Police Department successfully argued that his stance against the criminalization of illicit drugs and his involvement in a not-for profit that advocates for such views amounted to a political belief.

In ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt389/2012bchrt389.html?resultIndex=1 Wali v Jace Holdings]'', 2012 BCHRT 389 at para 117, the Tribunal determined that comments regarding matters affecting the regulation of a profession could constitute a political belief. This was narrowed to the particular legislative framework and mandate of the College of Pharmacists. The Tribunal took into account that the issue was a legislative initiative involving public welfare and was being debated in the community of pharmacists in determining that the belief was a protected political belief.

=== 4. Religion ===

Religious discrimination cases have helped to define several of the fundamental ideas and standards that comprise human rights law in Canada. Matters before the courts have routinely addressed discriminatory incidents concerning religious faith, beliefs, customs, and practices. In BC, protection from discrimination based on religion is provided in the following areas:
* publication
* public services
* purchase of property
* tenancy
* employment advertising and employment, and
* membership in a trade union, employer’s organization or occupational association.
Section 2(a) of the ''[https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html Charter]'' protects the freedom of conscience and religion. A claimant must show that their religious belief or practice is sincere, but is not required to show that it is objectively required or recognized by a particular religious faith. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt1/2009bchrt1.html Friesen v Fisher Bay Seafood Limited]'', 2009 BCHRT 1, at para 57. Atheism is encompassed within the protected ground of religion: ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt281/2018bchrt281.html?resultIndex=1 Mangel and Yasué obo Child A v. Bowen Island Montessori School and others]'', 2018 BCHRT 281 at para 210: ''[https://www.canlii.org/en/ca/scc/doc/2015/2015scc16/2015scc16.html Mouvement laïque québécois v Saguenay (City)]'', 2015 SCC 16 at para 70; ''[https://www.canlii.org/en/ca/scc/doc/2012/2012scc7/2012scc7.html SL v Commission scolaire des Chênes]'', 2012 SCC 7 at para 32; ''[https://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html?resultIndex=1 R v Big M Drug Mart Ltd]'', [1985] 1 SCR 295 at 314)

The duty to accommodate obliges employers to accommodate the religious practices of their employees as long as doing so does not cause undue hardship. Practices requiring accommodation may be linked to customs involving prayer, dietary restrictions, clothing requirements, or time off on religious holy days. Please refer to ''[https://www.canlii.org/en/ca/scc/doc/1992/1992canlii81/1992canlii81.html Renaud v Central Okanagan School District No 23]'', [1992] 2 SCR 970 at 982.

=== 5. Family Status and Marital Status ===

Family status generally refers to parent-child relationships, but can and does encompass other family relationships including those between siblings, in-laws, aunts and uncles, nieces and nephews, and cousins. For case law on the definition of family status and the test for discrimination on that basis see ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt34/2009bchrt34.html Miller v British Columbia Teachers’ Federation]'', 2009 BCHRT 34 at para 17.

Marital status normally refers to couples with a spouse-like relationship. The HRC extends protection to all individuals regardless of their status (i.e. married, common-law, single, separated, divorced or widowed). Issues involving family and marital status may often overlap and may be cited concurrently to fully illustrate a certain situation.

Protections from discrimination on the basis of marital and family status also confer protection on the basis of the identity of the complainant’s spouse or family member: ''[https://www.canlii.org/en/ca/scc/doc/2002/2002scc66/2002scc66.html B v Ontario (Human Rights Commission)]'', 2002 SCC 66.

In BC, the grounds of family and marital status are protected in the areas of publication, public services, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association. Family status is not protected in the area of purchase of property, meaning adult-only buildings and stratas are permitted.

The ground of family status also protects people from discrimination in respect of their childcare, and possibly other family care obligations. The law regarding the test that applies in the context of family status discrimination cases involving childcare obligations is unsettled in Canada. In BC, the present test for family status discrimination in employment was most recently considered in [https://canlii.ca/t/jwss3 British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd.,] 2023 BCCA 168. Per that case, in order to establish discrimination on the basis of family status, the complainant must show that a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation of an employee, whether as a consequence of a change in the term of employment or a change in the employee's circumstances (see para. 77).

The Federal Court of Appeal set out its own four-part test for family status discrimination in ''[https://www.canlii.org/en/ca/fca/doc/2014/2014fca110/2014fca110.html Canada (Attorney General) v Johnstone]'', 2014 FCA 110, at para 93 [''Johnstone'']. Under ''Johnstone'', a complainant must show that a child is under their care and supervision, the issue engages the individual’s legal responsibility for that child as opposed to a personal choice, they have made reasonable efforts to find alternative solutions and no reasonable alternative solution is available, and the impugned workplace rule interferes with the childcare obligation in a more than trivial or insubstantial way.

In Ontario, ''[https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto1229/2016hrto1229.html Misetich v. Value Village Stores Inc.]'', 2016 HRTO 1229 [''Misetich''] is the leading authority. ''Misetich'' criticized both ''Campbell River'' and ''Johnstone'' as creating too narrow of a test. The ''Misetich'' test requires a complainant to establish a negative impact that results in a real disadvantage to the parent/child relationship, parent/child responsibilities, or to the employees’ work.

In Alberta, in ''[https://www.canlii.org/en/ab/abqb/doc/2015/2015abqb162/2015abqb162.html SMS Equipment Inc. v. Communications, Energy and Paperworkers Union]'', Local 707, 2015 ABQB 162, the Court of Queen’s Bench upheld a labour arbitration decision rejecting the ''Campbell River'' test. The court held that there were problems with both ''Campbell River'' and ''Johnstone'' and ultimately concluded that the correct test for determining discrimination based on family status is the Supreme Court of Canada’s general test for establishing discrimination set out in ''Moore''. The ''Moore'' test was recently reaffirmed by the Supreme Court of Canada in ''[https://www.canlii.org/en/ca/scc/doc/2017/2017scc30/2017scc30.html Stewart v Elk Valley Coal Corp]'', 2017 SCC 30.

The BC Court of Appeal recently affirmed that the ''Campbell River'' test is the law in British Columbia: ''[https://www.canlii.org/en/bc/bcca/doc/2019/2019bcca46/2019bcca46.html Envirocon Environmental Services, ULC v Suen]'', 2019 BCCA 46. Mr. Suen applied for leave to appeal to the Supreme Court of Canada; the application was dismissed.

=== 6. Physical or Mental Disability ===

Disability is not defined in the HRC. However, the concept of physical disability, for human rights purposes, generally indicates a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life” (''[https://www.canlii.org/en/bc/bchrt/doc/1994/1994canlii18445/1994canlii18445.html Boyce v New Westminister (City)] (1994)'', 24 CHRR D/441 at para 50 [''Boyce'']). More recent cases have confirmed that a disability must have a certain level of severity, permanence or persistence: see e.g., ''[https://www.canlii.org/en/bc/bchrt/doc/2014/2014bchrt270/2014bchrt270.html Li v Aluma Systems and another]'', 2014 BCHRT 270 at para 41. In ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt14/2003bchrt14.html Morris v BC Rail]'', 2003 BCHRT 14 at para 214 [''Morris''], the Tribunal set out the following three considerations for assessing whether an individual has a physical or mental disability:

#[T]he individual’s physical or mental impairment, if any;
#[T]he functional limitations, if any, which result from that impairment; and
#[T]he social, legislative or other response to that impairment and/or limitations… assessed in light of the concepts of human dignity, respect and the right to equality.

Furthermore, according to ''Morris'' at para 207, proof of impairment and/or limitation, while relevant, will not be required in all cases. See ''[https://www.canlii.org/en/bc/bchrt/doc/2013/2013bchrt40/2013bchrt40.html McGowan v Pretty Estates]'', 2013 BCHRT 40 at paras 26-28 for more information.

The protection of the HRC extends to those who are perceived to have a disability or to be at risk of becoming disabled in the future. As such, the Tribunal has rejected the application of strict criteria to determine what constitutes a physical or mental disability. For example, protection has been specifically applied to persons with AIDS, persons who are HIV positive, and persons believed to be HIV positive. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt177/2005bchrt177.html McDonald v Schuster Real Estate]'', 2005 BCHRT 177 at para 24 and ''[https://www.canlii.org/en/bc/bchrt/doc/1999/1999canlii35199/1999canlii35199.html J v London Life Insurance Co]'' (1999), 36 CHRR D/43 at para 42 [''London Life Insurance''].

As noted above, protection from discrimination due to physical disability extends to discrimination on the basis of a perceived propensity to become disabled in the future. In ''London Life Insurance'' at para 46, the Tribunal found that the HRC prohibited discrimination against a person based on the fact that his spouse was HIV positive. Protection under this ground has also been extended to those who are suffering from addictions issues. For example, ''[https://www.canlii.org/en/bc/bchrt/doc/1995/1995canlii18183/1995canlii18183.html Handfield v North Thompson School District No 26]'', [1995] 25 CHRR D/452 at paras 139–143 recognized alcoholism as both a physical and mental disability.

Where a behaviour or policy adversely affects a protected group or person, either directly or indirectly due to their disability (or any other protected characteristic), there is a duty to accommodate, meaning that all reasonable efforts must be taken to accommodate the group or person up to the point of undue hardship. Examples include installing wheelchair access (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Walsh v Pink]'', 2018 BCHRT 174 at paras 104-111) and safety handrails (''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt62/2006bchrt62.html Ferguson v Kimpton]'', 2006 BCHRT 62 at para 68). The duty to accommodate may also include allowing workers to return gradually to the workplace after an injury or serious illness.

=== 7. Sexual Orientation ===

The HRC prohibits discrimination based on sexual orientation. Such discrimination does not require a complainant to prove their sexual orientation nor that a given respondent believed them to have a particular orientation. In ''[https://www.canlii.org/en/bc/bcca/doc/2005/2005bcca201/2005bcca201.html?resultIndex=1 School District No 44 (North Vancouver) v Jubran]'', 2005 BCCA 201, Mr. Jubran was a high school student, subjected to homophobic insults and harassment from other students. This conduct was found to constitute discrimination, even though Mr. Jubran did not identify as homosexual and his harassers denied believing that they in fact thought he was homosexual. For a case regarding discrimination on this basis against patrons of a restaurant in the context of services customarily available to the public, please see ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt101/2011bchrt101.html?resultIndex=1 Pardy v. Earle]'' and others (No. 4), 2011 BCHRT 101.

In BC, protection on the basis of sexual orientation is provided in the areas of publication, public services, purchase of property, tenancy, employment advertising, employment, and membership in a trade union, employer’s organization, or occupational association.

=== 8. Sex (Including Sexual Harassment, Pregnancy) ===

Discrimination on the basis of sex, which is prohibited under the HRC, includes sexual harassment. Sexual harassment is defined as “unwelcome conduct of a sexual nature that detrimentally affects a work environment or leads to adverse job-related consequences for the victims of the harassment” (''[https://www.canlii.org/en/ca/scc/doc/1989/1989canlii97/1989canlii97.html Janzen v Platy Enterprises Ltd]'', [1989] 1 SCR 1252 at 1284 [''Janzen'']).

In ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt60/2015bchrt60.html PN v FR]'' ''and another (No 2)'', 2015 BCHRT 60, the HRT awarded $50,000 for injury to dignity to a domestic foreign worker who was sexually harassed and assaulted. This is among the highest injury to dignity award the Tribunal has ever ordered. This case also involved allegations of discrimination based on family status, race, age, colour, and place of origin.

Sexual harassment can take a number of forms. One such form may occur when the employer or a supervisory employee requires another employee to submit to sexual advances as a condition of obtaining or keeping employment or employment-related benefits. It may also occur when employees are forced to work in an environment that is hostile, offensive, or intimidating, such as where an employer allows pornography to be posted in the workplace. It is not generally necessary for an employee to make an internal complaint to their employer before filing a complaint, although this may be relevant to the compensation the employer is ordered to pay if the complaint is successful. There is also no requirement of continuing harassment; a single incident may be sufficient if it is sufficiently egregious.

Whether the conduct was “unwelcome” is assessed on an objective standard: would a reasonable person have known that the conduct was unwelcome? If the respondent knew or ought to have known that the conduct was unwelcome, this part of the test is made out. A target of harassment is not required to expressly object to the conduct for it to be reasonably understood to be unwelcome. The law recognizes that a person's behaviour "may be tolerated and yet unwelcome at the same time" (''[https://www.canlii.org/en/bc/bchrt/doc/1999/1999bchrt56/1999bchrt56.html Mahmoodi v. University of British Columbia and Dutton]'', 1999 BCHRT 56 at para 140).

It must also be shown that the alleged discriminatory conduct is “reasonably perceived to create a negative psychological and emotional environment for work” (''Janzen'' at 1263). The test must also take into account the customary boundaries of social interaction in the circumstances. Factors that are examined to determine the limits of reasonableness in a particular context include the nature of the conduct, the workplace environment, the type of prior personal interaction, and whether a prior objection or complaint was made. It is no defence to harassment, however, to show that harassing behaviour was traditionally tolerated in a workplace.

For a more recent case involving discrimination on the basis of sex, and more specifically sexual harassment in the employment context, see ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt97/2019bchrt97.html Araniva v RSY Contracting and another (No. 3)]'', 2019 BCHRT 97.

There are also examples of cases involving sex discrimination that did not amount to sexual harassment. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2004/2004bchrt76/2004bchrt76.html Mottu v MacLeod]'', 2004 BCHRT 76 at para 41, where the Tribunal found that dress code requirements based on sex could constitute discrimination on the basis of sex. In ''Lund v Vernon Women’s Transition House Society'', 2004 BCHRT 26, the Tribunal found that an employer’s refusal to allow a female employee to breastfeed her child at work could also constitute sex discrimination. See also ''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt5/2021bchrt5.html The Sales Associate v Aurora Biomed Inc. and others (No. 3)]'', 2021 BCHRT 5.

=== 9. Gender Identity or Expression ===

This protected ground has been in force since 2016, and therefore few decisions relating to this ground are currently available.

For a recent Tribunal decision issued under the ground of gender identity or expression, please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2019/2019bchrt58/2019bchrt58.html Oger v Whatcott (No 7)]'', 2019 BCHRT 58. Please also see [https://canlii.ca/t/hvlwz Li v. Mr. B,] 2018 BCHRT 228, where the respondent, the complainant's landlord, showed a photograph of the complainant (who was male-identifying) in a dress to the complainant's supervisor in an attempt to cause an adverse effect on the complainant's employment. The HRT found that this constituted discrimination based on gender identity and expression. For a case involving a nonbinary person, whose coworker refused to use they/them pronouns to refer to them, please see ''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt137/2021bchrt137.html Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others]'', 2021 BCHRT 137.

Prior to the inclusion of gender identity or expression in 2016, the Tribunal had found that being transgender was a protected characteristic under the ground of sex. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2015/2015bchrt54/2015bchrt54.html Dawson v Vancouver Police Board (No 2)]'', 2015 BCHRT 54 [''Dawson'']. ''Dawson'' establishes that misgendering trans individuals (addressing a trans person using a pronoun, name, or gender marker other than that which the trans person uses to identify themselves) constitutes discrimination. Discrimination may also include the denial of trans-specific medical services (''Dawson'').

=== 10. Age (19+) ===

Age can refer to an individual’s legal age, membership in a specific age-category, or a generalized characterization of a specific age. In BC, age is a protected ground of discrimination in the areas of publication; public services; tenancy; employment advertising; employment; and membership in a trade union, employer’s organization, or occupational association. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt219/2006bchrt219.html Miu v Vanart Aluminum and Tam]'', 2006 BCHRT 219 at para 18.

In each of these areas, age protection is restricted to those 19 years of age and over. However, those under 19 years are still able to bring complaints to the BCHRT based on grounds other than age.

=== 11. Criminal or Summary Conviction ===

BC’s HRC protects individuals with a criminal or summary conviction in the area of employment, trade unions, employers’ associations and occupational associations, so long as the conviction is unrelated to the employment or the intended employment of the individual. This protection includes a perceived conviction (i.e. relating to arrests, stayed charges or acquittals). Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt43/2011bchrt43.html Purewall v ICBC]'', 2011 BCHRT 43 at para 21, ''[https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt411/2006bchrt411.html Clement v Jackson and Abdulla]'', 2006 BCHRT 411 at para 14; and ''[https://www.canlii.org/en/bc/bchrt/doc/1997/1997canlii24841/1997canlii24841.html Korthe v Hillstrom Oil Company Ltd]'' (1997), 31 CHRRD/82 at paras 23-28. In an effort to establish whether or not a conviction may affect an employment decision, the Tribunal makes an assessment of the relationship between the conviction and the job description. As such, employers must take into account the circumstances of the conviction in order to determine whether or not the charge relates to the employment. In ''[https://www.canlii.org/en/bc/bcsc/doc/1983/1983canlii444/1983canlii444.html Woodward Stores (British Columbia) v McCartney]'' (1983) 43 BCLR 314 at paras 7-9, Justice MacDonald laid out a list of criteria to be considered in making this determination. These criteria are as follows:

* Does the behaviour which formed the basis of the charge, if repeated, compromise the employers’ ability to conduct business safely and effectively?
* What were the circumstances and details of the offence, e.g., what was the person’s age at the time of the offence and were there any extenuating factors?
* How much time has passed since the charge? What has the individual done since that time and has there been any indication of recidivism? Has there been evidence of the individual’s desire for rehabilitation?

=== 12. Lawful Source of Income ===

BC’s HRC protects against discrimination in tenancy on the basis of an individual’s lawful source of income. It applies only in the area of tenancy. This protects the tenancy rights of individuals on social assistance or disability pensions, for example, who might otherwise be denied safe housing. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt36/2003bchrt36.html Tanner v Vlake]'', 2003 BCHRT 36 at paras 22–26 for further discussion on this protected ground. For a more recent case, please see [https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt49/2012bchrt49.html Day v Kumar and another (No 3)], 2012 BCHRT 49.

=== 13. Indigenous Identity ===

On Nov. 17, 2021, the BC government introduced, and later passed, Bill 18 which added Indigenous identity as a protected ground under the B.C. Human Rights Code. Bill 18 was intended to better reflect forms of discrimination experienced by Indigenous Peoples. Indigenous identity refers to being First Nations, Métis, or Inuit. While there are few cases that feature the Tribunal considering Indigenous identity as its own distinct protected ground, there are many more that look at Indigenous identity as being a protected ground through race, ancestry, or place of origin. One such case is [https://canlii.ca/t/j5wnn Smith v Mohan (No. 2),] 2020 BCHRT 52, where the complainant, an Indigenous woman and member of the Tsimshian and Haisla Nations, was discriminated against by her landlord, who continually tried to evict the complainant because she was smudging in her apartment unit. See also [https://canlii.ca/t/j4824 Campbell v. Vancouver Police Board (No. 4),] 2019 BCHRT 275, which involved a finding of discrimination by the Vancouver Police against an Indigenous woman and mother.

== D. Procedural Options for Employees ==

An employee who is dealing with an employment-related legal issue may have more than one procedural option to choose from. These include:

=== 1. Employer’s Internal Complaint Procedure ===

Assuming one exists, this is the most immediate way to obtain a resolution to a workplace issue. Consult the workplace’s policies to determine whether an internal complaints process exists and, if so, whether it is likely to yield a helpful resolution of the issue. Note that employees are not required to make use of internal procedures before filing a human rights complaint or other legal proceeding.

=== 2. Grievance and Arbitration (Union) ===

Unionized workers are entitled to representation by their union. Labour arbitrators have jurisdiction to apply the HRC, and grievances often move more quickly than human rights complaints. However, if the union does not pursue a grievance relating to a human rights issue, the worker may wish to file their own human rights complaint and may even decide to name the union as a party if the worker has grounds to believe the union is complicit in the alleged discrimination. Alleging that the union has failed to provide adequate representation will not be sufficient to qualify as a breach of the HRC on its own; the union must have engaged in the discrimination.

As previously stated (see '''Section III.B.7''': Discrimination by Unions, Employer Organizations, or Occupational Associations), there are two ways in which a union may be found liable for discrimination. First by creating or participating in formulating a discriminatory workplace rule, and second by impeding an employer’s efforts to accommodate a disabled employee (''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt44/2018bchrt44.html Chestacow]'' at para 32).

Initiating the grievance procedure can be a good starting point, and can be followed by initiating a human rights complaint. A grievance and a human rights complaint can also be filed in tandem. If the matter is not resolved during the initial stages of the union grievance procedure, an arbitration hearing may be held, and an arbitrator will determine liability and relief. The human rights complaint may be placed in deferral while the grievance process proceeds. If the grievance process resolves the worker’s human rights issue, the human rights complaint will be dismissed. See ''[https://www.canlii.org/en/bc/bcca/doc/2019/2019bcca241/2019bcca241.html Sebastian v Vancouver Coastal Health Authority]'', 2019 BCCA 241 for some of the risks of parallel proceedings in this context.

=== 3. Human Rights Complaint ===

Another option is to file a human rights complaint with the BC Human Rights Tribunal (see above for the grounds, areas, exemptions, complaint process, etc.) or, under federal jurisdiction with the Canadian Human Rights Commission (see below for the grounds, areas, exemptions, process, etc). The Tribunal can award lost wages, expenses, and damages for injury to dignity, feelings and self-respect. However, note that if a claimant is also seeking severance pay, lost wages, or expenses in a civil suit, they will not be allowed to recover the same damages from both proceedings.

=== 4. Employment Standards Branch ===

Employees may choose to file a complaint through the Employment Standards Branch (ESB) if their employer has breached the ''Employment Standards Act'' (see [[Introduction_to_Employment_Law_(9:I)|Chapter 9: Employment Law]]). There is a '''six-month limitation period''' from the date of the breach. A complainant can file claims in both the ESB and civil court (either Small Claims or Supreme Court) for employment-related issues, including wrongful dismissal. These actions do not bar the complainant from also bringing a human rights complaint relating to the same matter. Remedies awarded by the Employment Standards Tribunal are intended to make the employee “whole” financially by way of compensation rather than reinstatement. It is important to note that the ESB does not deal with alleged discrimination. If the employee recovers unpaid wages through the ESB, they cannot “double-recover” and seek these same damages in the BCHRT or another forum.

=== 5. Civil Action ===

A final option is to bring a civil action for wrongful dismissal either in Small Claims Court (see [[Introduction_to_Small_Claims_(20:I)|Chapter 22: Small Claims]] of the LSLAP Manual) or the BC Supreme Court, depending on the amounts claimed. However, the Supreme Court of Canada has held that the common law will not provide a remedy for discrimination per se in the employment context. Please refer to ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc39/2008scc39.html Keays v Honda Canada Inc]'', 2008 SCC 39 at para 67 [''Keays''].

The court in ''[https://www.canlii.org/en/ca/scc/doc/2008/2008scc39/2008scc39.html Keays]'' held that breaches of the HRC must be remedied within the statutory scheme of the HRC itself. Thus, even if the reason for dismissal was discriminatory, in a civil action, the claimant will generally only be able to recover damages based on their wrongful dismissal and/or inadequate notice (severance pay). See [[Introduction_to_Employment_Law_(9:I)|Chapter 9: Employment Law]] of the LSLAP Manual. Accordingly, compensation for the discrimination itself must be awarded by the Tribunal.

The court may further compensate the claimant in a civil action if the employer has acted unfairly or in bad faith when dismissing an employee. The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal (i.e. payment for such damages can be deemed to have been in the contemplation of the parties at the formation of the contract). In Keays the Supreme Court of Canada held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include expenses related to mental distress stemming from the manner of dismissal. Compensable conduct might include, but is not limited to, attacking the employee's reputation at the time of dismissal, misrepresentations regarding the reason for the dismissal, or dismissal meant to deprive the employee of a pension benefit or other right such as permanent resident status. However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages.

The courts are even more conservative in their approach to awarding punitive damages meant to punish the employer for their conduct in dismissal. Punitive damages will only be awarded if the employer’s conduct was harsh, vindictive, reprehensible, malicious, and extreme in nature. Thus, if the claimant is primarily concerned with being compensated for injuries to their dignity and/or denouncing their employer’s discriminatory behaviour, they should file a complaint with the Human Rights Tribunal alongside a civil action for wrongful dismissal.

Whatever procedural route an employee ultimately chooses to pursue, if said employee is experiencing on-going harassment on a prohibited ground of discrimination, they should maintain records or a journal with dates, times, places, witnesses, details of particular incidents, and even a description of the emotional effects of the harassment.

== E. The Process for Human Rights Complaints ==

The BC Human Rights Tribunal handles complaints made under the HRC. The following chart depicts the process of a complaint at the Tribunal and the time in between the various stages of the process (prepared by the BC Human Rights Clinic, program of the Community Legal Assistance Society):

The first step in filing a complaint with the Tribunal is to fill out a Complaint Form, which is available at the Tribunal's head office, on its website (http://www.bchrt.bc.ca) or from other local government agent offices. It is also possible to file the complaint online on the Tribunal's website. There are helpful self-help guides to filling out Complaint and Response forms on the Tribunal’s website. You should also consult the [http://www.bchrt.bc.ca/law-library/rules/index.htm Tribunal’s Rules of Practice] and [http://www.bchrt.bc.ca/law-library/practice-directions/index.htm Procedure and Practice Directions] for guidance on the various steps in the process.

[[File:LSLAP 6 III process for complaints image 1.png|alt={Process for complaints}]]

=== 1. Who Can File a Complaint? ===

A complaint may be made by an individual, on behalf of a group or class, or by someone acting as a representative of named person(s). If the Complaint Form is being filled out on behalf of another person, group, or class of persons, then a secondary form called the Representative Complaint Form must also be filled out and must accompany the Complaint Form when sent to the Tribunal. The person filling out the Complaint Form is the complainant. The person or organization who has been filed against is called the respondent. You should also consult the [http://www.bchrt.bc.ca/law-library/rules/index.htm Tribunal’s Rules of Practice] and [http://www.bchrt.bc.ca/law-library/practice-directions/index.htm Procedure and Practice Directions] for guidance on the various steps in the process.

=== 2. How to File a Complaint ===

The Complaint Form can be filed with the Tribunal via mail or fax. The Complaint Form can also be filled out and submitted online from a computer or a smart phone. Alternatively, the Complaint Form can be submitted to the Tribunal through email. Complainants may access the Complaint Form and other valuable resources at the BC Human Rights Tribunal website (see Section II.B: Resources). There are different Complaint Forms depending on whether the complaint is being made by an individual ([https://intake.bchrt.bc.ca/hrt/hrt Form 1.1]), or a group ([https://intake.bchrt.bc.ca/hrt/hrt-group Form 1.3]). If you are filling out a Complaint Form on behalf of someone else, then the appropriate form is [http://www.bchrt.bc.ca/shareddocs/forms/form_1_2_print.pdf Form 1.2].

The party filing the complaint should be aware of the time limits. There is a one-year limitation period. Complaints alleging continuing contraventions of the Code may be accepted as long as at least one incident of alleged discrimination occurred within the one-year limitation period: see Code s. 22(2). Late-filed complaints may be accepted if it is in the public interest to do so, under certain very limited circumstances, as per s. 22(3) of the Code In order for a member of the Tribunal to accept all or part of the complaint under s. 22(3), the Tribunal must determine that a) it is in the public interest to accept the complaint, and b) no substantial prejudice will result to any person because of the delay. The Tribunal’s assessment of what the public interest means in this context depends on a consideration of a number of factors including: the complainant’s interest in accessing the Tribunal, the length and reason for the delay in filing, whether the complainant had access to legal advice, and the novelty or importance of the human rights issues raised: [https://canlii.ca/t/g7c2b British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite,] 2014 BCCA 220 at paras. 53-81. It also considers “the respondent’s interest in going about its activities without the worry of stale complaints”: [https://canlii.ca/t/h03rl Hoang v. Warnaco and Johns,] 2007 BCHRT 24 at para. 26. This list of factors is not exhaustive.

The BC Court of Appeal has found it to be within the public interest to accept a complaint that was filed late if the complainant was operating off erroneous legal advice regarding the one-year limitation date: [https://canlii.ca/t/jbtjn The Parent obo the Child v. The School District,] 2020 BCCA 333. The Tribunal has found that it can be in the public interest to accept late complaints where the delay is due to a disabling condition: [https://canlii.ca/t/g8blz Naziel-Wilson v. Providence Health Care and another,] 2014 BCHRT 170 at para. 21. See also [https://www.canlii.org/en/bc/bchrt/doc/2023/2023bchrt40/2023bchrt40.html Sheriff v. Fairleigh Dickenson University,] 2023 BCHRT 40 at para. 38, where the Tribunal discussed the impact of trauma on a person’s ability to file a complaint within the one-year time limit.

The BC Human Rights Tribunal has been severely backlogged over the last couple of years. Potential complainants should be aware that it may take up to a year for a case to be screened and accepted for filing.

=== 3. Screening ===

Once the Complaint Form is filed, the Tribunal will review the form to determine if it fits under the HRC and if it appears to meet the one-year limitation period. If the Tribunal believes that it may not have the power to deal with the complaint in substance or believes that the complaint has been filed out of time, the complainant will generally be given a chance to respond before the Tribunal decides whether or not to proceed with the complaint. If the Tribunal believes it can proceed, it will send the Complaint Form to the respondent for a response to the complaint.

A complainant '''must''' set out a case of discrimination under the HRC on their initial complaint form. If the elements are not set out, then the Tribunal might not accept the complaint. Even if accepted, it could still be vulnerable to an application to dismiss under section 27 of the HRC at a later stage. In order to set out the complainant’s case, the complainant must allege facts that, on their face (that is to say, assuming they are all true), satisfy the following three elements:

#That they have a characteristic that is protected under the HRC;
#That they experienced an adverse impact with respect to an area protected by the HRC; and
#That their protected characteristic was a factor in the adverse impact they experienced.

It is important to note that a complainant need not establish that their protected characteristic was the sole or primary reason for their adverse treatment. It is sufficient to establish that it was one reason for their adverse treatment.

For greater analysis of this topic please refer to ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15471/index.do Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)]'', 2015 SCC 39; and ''[https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do Moore v British Columbia (Education)]'', 2012 SCC 61.

A complainant is not required to provide evidence at the time they file their complaint. The complaint form simply needs to tell the story, identify all of the allegations of discriminatory treatment, and satisfy the three criteria set out above.

=== 4. Disclosure Obligations ===

Disclosure refers to the sharing of information with the other parties. In order for all parties to prepare for their case it is essential that information is properly shared. Information that must be disclosed includes:

#All documents relevant to the complaint, response, as well as the remedy being requested. This must be disclosed after a complaint is filed;
#A list of witnesses. This must be disclosed after a hearing is scheduled;
#A detailed explanation of the remedy (for the complainant), or a response to the proposed remedy (for the respondent); and
#Any expert evidence or opinion. All expert evidence must be presented to the other party within 90 days of the hearing.

Evidence that has not been disclosed cannot be presented at a hearing. An attempt to do so may negatively affect a party's case and may even lead to an order for costs by the Tribunal. A failure to disclose can also simply prevent a complaint from going forward, or prevent a respondent from filing an application to dismiss.

=== 5. Settlement Meeting ===

'''Parties may agree to a settlement meeting at any time after the complaint has been filed.''' The Tribunal schedules an Early Settlement Meeting after accepting the complaint for filing, which the parties can opt out of if they choose. Most human rights complaints settle, either through a settlement meeting or direct negotiations between the parties or their counsel. Guides for settlement meetings and hearings are available from the Tribunal on its website.

At the settlement meeting, a neutral and impartial mediator who is knowledgeable in human rights law will work with the parties in order to help them try to reach an agreement. Generally speaking, a settlement will require both sides to compromise, whether that is a complainant accepting less compensation than they initially sought, or a respondent accepting some measure of responsibility. In a settlement meeting, it is important to listen to the other side’s perspective and assess how it impacts the strength of your case, and remain open-minded regarding the remedy you are prepared to accept to resolve the complaint.

Additionally, settlements can allow for creativity in determining a resolution. While the Tribunal may be limited in its ability to address the damages, mediation can result in constructive results such as public apologies or a practical solution to the issue at hand.

This process also allows for a quicker resolution of the issue in a more informal setting, where information is kept confidential. Negotiations are without prejudice, meaning they cannot be used in future hearings, and the mediator involved will not be a part of the final hearing. The process is voluntary and the Tribunal cannot force the parties to participate in mediation or enter into a settlement agreement. If the parties do voluntarily agree to settle their dispute, as part of the terms of settlement, the complainant will file a Complaint Withdrawal Form ([https://canlii.ca/t/jwxkg Form 6]). A settlement agreement is a legally binding agreement, and if one side does not comply with its terms, the other party can take to steps to enforce it.

If both parties cannot agree on a resolution, the mediation will end with no settlement agreement.

=== 6. Miscellaneous ===

Due to the COVID-19 Pandemic, the Tribunal developed a new process for processing complaints about mask wearing in the BC HRT. On April 20, 2022 the Tribunal paused processing complaints about mask requirements in services for one year, partly because of the sheer number of complaints about mask-wearing under s. 8 that the Tribunal was receiving. For complaints filed after March 31, 2022, the HRT will dismiss any complaint that does not include the criteria set out in the [http://www.bchrt.bc.ca/law-library/practice-directions/mask-wearing-complaints.htm Practice Direction]. This criteria requires complainants to demonstrate that their protected personal characteristic, if that is a physical disability, actually inhibits the wearing of a mask. If the complainant does not provide this information in their Complaint Form then their complaint will be dismissed without an opportunity to provide more information.

The Tribunal encourages people to solve any mask wearing complaints by talking to the service provider or sending them information about the public order requiring masks, and guidance from the Office of the Human Rights Commissioner and WorkSafe BC.

BC declared a state of emergency on March 18th, 2020, due to the pandemic. This did not extend the 1-year time limit to file a complaint but someone who misses the time limit may explain that their delay was caused by the pandemic on the complaint form and the Tribunal will consider it. If the complaint is urgent, a complainant may request a fast-track process. To be eligible for a fast track, you must show that fast-tracking or changing the process will help get to a “just and timely resolution” of the complaint. The complainant may want to fast-track the process if the complainant is at risk of losing the appropriate remedy if urgent action is not taken by the HRT (for example, the complaint is about an eviction notice and the complainant will have to move out in 30 days, without a fast-tracked solution). A party may also wish to fast-track the process if they are at risk of losing the chance to prove their case (for example, the respondent’s main witness is moving out of Canada soon). For more information on the fast track process, please refer to the BC HRT website: http://www.bchrt.bc.ca/law-library/guides-info-sheets/general-apps/16.htm

== F. Remedies ==

Remedies should be considered early when deciding whether or not to pursue a claim in any administrative tribunal. Available remedies for a justified complaint are listed in section 37(2) of the HRC.

'''Non-pecuniary (not financial) remedies include''': an order that the respondent cease the discriminatory conduct, a declaratory order that the conduct complained of is, in fact, discriminatory, and an order that the respondent take steps to ameliorate the effects of the discrimination, such as the implementation of human rights policy and training. People seeking advice on drafting should be directed to the BC Human Rights Tribunal website, which provides detailed information on the availability and applicability of specific remedies (see [[Governing_Legislation_and_Resources_for_Human_Rights_(6:II)|Section II.B: Resources]]).

'''Pecuniary (financial) remedies include''': compensation for lost wages/salary, expenses incurred due to the discrimination, re-instatement of a lost benefit, and compensation for injury to dignity. Unlike severance pay, compensation for lost wages is not based on the concept of reasonable notice. A successful claimant may recover lost wages for the entire period between their dismissal and the hearing date if they can show that they have been making reasonable efforts to find new employment.

The purpose of an award for injury to dignity is to compensate a person whose rights under the ''Code'' have been violated. It is not to punish a respondent. Damages awarded for injury to dignity have increased over the last decade, and the tribunal has made it clear that the trend for such damages is upwards (see ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt174/2018bchrt174.html Biggings obo Walsh v Pink and others]'', 2018 BCHRT 174 [''Walsh'']). Currently the highest award in BC is $176,000 (''[https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt16/2021bchrt16.html Francis v BC Ministry of Justice (No.5)]'', 2021 BCHRT 16). Historically, however, most damages in this category are under $10,000. The BC Human Rights Clinic has a compiled list of awards given by the HRT, sorted by ground, updated quarterly and available at https://bchrc.net/legal-information/remedies. It is difficult to predict what level of damages the Tribunal will award, as this determination depends on many factors, which are assessed on a case-by-case basis (see e.g. ''Walsh''). The Tribunal generally consider three broad factors: the nature of the violation, the complainant's vulnerability, and the effect on the complainant: ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt185/2011bchrt185.html Gichuru v The Law Society of British Columbia (No. 9)]'', 2011 BCHRT 185 at para. 260, upheld in 2014 BCCA 396). Importantly, while injury to dignity awards commonly follow in cases where discrimination is established, this is not guaranteed, as seen in ''[https://www.canlii.org/en/bc/bchrt/doc/2012/2012bchrt28/2012bchrt28.html Holt v Coast Mountain Bus Company]'', 2012 BCHRT 28 at para 233. For further information regarding compensation for injury to dignity, feelings, and self-respect, please visit https://bchrc.net/the-trend-is-upwards-recent-injury-to-dignity-awards.

Remember, to claim any type of damage, the complainant must lead evidence. If the complainant fails to lead evidence as to the effect the discrimination had on their emotional state and dignity, the Tribunal may not award any damages. If the respondent is able to prove that the complainant has failed to mitigate their losses, a complainant may not be entitled to wage loss compensation.

The Tribunal may not award damages for lost wages/salary following a discriminatory dismissal during a period for which the claimant was medically incapable of working. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2008/2008bchrt376/2008bchrt376.html Senyk v WFG Agency Network (No 2)]'', 2008 BCHRT 376 at para 434. This is because, even absent the discrimination, the claimant would not have been able to earn wages or a salary. (See ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt238/2018bchrt238.html Eva obo others v Spruce Hill Resort and another]'', 2018 BCHRT 238 at para 214).

There is no maximum limit on damage awards. Note, however that if a claimant seeks a remedy at both the Human Rights Tribunal (e.g. for lost wages) and in civil court (e.g. for severance pay), and is successful with both proceedings, they must forfeit one of the awards, as they are not entitled to double recovery. There are several cases where the award for loss of wages was in the range of $300,000. See ''[https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca271/2016bcca271.html Kelly]'' and ''[https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt196/2009bchrt196.html Kerr]''.

Section 37(4) of the HRC gives the Tribunal authority to order costs against either party as condemnation of improper conduct during the Tribunal processes. Additionally, section 37(2) gives the Tribunal the right to award compensation for expenses that are directly caused by the discrimination found, which may include expenses such as wage loss due to the need to attend a hearing.

A final order of the Tribunal may be registered in the BC Supreme Court so that it is enforceable as though it were an order of the court. No appeal procedure is provided for in the HRC; individuals dissatisfied with the Tribunal’s decision must seek judicial review in BC Supreme Court pursuant to the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96241_01 Judicial Review Procedure Act, RSBC 1996, c 241] (see [[Introduction_to_Public_Complaints_Procedures_(5:I)|Chapter 5: Public Complaint Procedures]] of the LSLAP Manual).

== G. Costs ==

The general rule is that costs will not normally be awarded in a human rights case. Pursuant to [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section37 section 37(4) of the HRC], the purpose of awarding costs is to penalize a party who acts improperly during a hearing, thereby interfering with the objectives of the Tribunal. In these cases, costs are awarded punitively and do not necessarily reflect the actual expenses incurred by the other party due to the improper conduct.

== H. Dismissal of a Complaint Without a Hearing ==

As mentioned above, the Tribunal may refuse to accept a complaint for filing if it does not have jurisdiction due to the nature of the complaint or if it is late filed. Once a complaint has been filed, however, the Tribunal may nevertheless dismiss it prior to a hearing, on application from the respondent or on its own motion, for a variety of reasons ([https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section27 HRC, s 27]). The following outlines some of the reasons why the Tribunal may dismiss a filed complaint (check the HRC for a complete list):

=== 1. Complaint Outside the Tribunal’s Jurisdiction ===
The Tribunal will not proceed with a complaint where it is persuaded that the complaint is not, in fact, based on a form of discrimination enumerated by the HRC, or that the complaint falls within federal jurisdiction. Even if the Tribunal accepts a complaint for filing, the respondent may still have the option to dispute jurisdiction.

=== 2. Substance of Complaint Dealt with by Another Proceeding ===
Where another proceeding, such as a labour arbitration, has adequately resolved the substance of a complaint, it will usually be dismissed. A complaint may also be deferred if such an alternative proceeding is pending. The number of other proceedings capable of adequately dealing with a human rights complaint is however, quite limited.

=== 3. No Reasonable Basis for Holding a Hearing ===
The Tribunal may dismiss a complaint where the Tribunal is persuaded that the complaint is made in bad faith, would be of no benefit to the complainant, would not further the purposes of the HRC, and/or has no reasonable prospect of success. The most recent Annual Report from the BCHRT indicates that applications to dismiss under section 27 of the HRC succeeded in fully dismissing the complaint 49% of the time. Please refer to ''[https://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt117/2011bchrt117.html Marquez v Great Canadian Casinos]'', 2011 BCHRT 117 at paras 29–38. No reasonable prospect of success is the most common reason for dismissing a complaint.

If you are responding to an application to dismiss a complaint, it is important in most cases to provide evidence in support of the Complainant’s contention that the complaint should be allowed to proceed to a hearing. While the burden of persuading the Tribunal that the complaint should be dismissed is on the respondent, the complainant does need to provide sufficient evidence to take their complaint out of the realm of “speculation and conjecture.” An affidavit attaching relevant exhibits from the client is preferable, though an unsworn statement will also likely be acceptable in most cases.

=== 4. Complaint Brought Outside Limitation Period ===
As mentioned above, there is a one-year limitation period for filing a complaint. The one-year period begins from the last instance of any continuing discrimination. If at least one alleged incident of discrimination in a complaint falls within the one-year limitation period, other alleged incidents of discrimination dating back farther than one year may be accepted as a continuing contravention of the ''Code''. The issue of whether, or how many, multiple instances of discrimination will be considered to constitute a “continuing contravention” (thus effectively extending the one-year limitation period) is often disputed. See ''[https://www.canlii.org/en/bc/bchrt/doc/2018/2018bchrt204/2018bchrt204.html Bjorklund v BC Ministry of Public Safety and Solicitor General]'', 2018 BCHRT 204 at paras 13-14 for a recent discussion of how to define a “continuing contravention”; see also ''[https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca136/2018bcca136.html District v Parent obo the Child]'', 2018 BCCA 136 at paras 46–65.

Additionally, under [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01#section22 section 22(3)] of the HRC, the Tribunal has discretion to accept late-filed complaints regardless of whether there is a “continuing contravention”, if it is in the public interest to accept the late complaint, and no substantial prejudice will be caused to any party because of the delay in filing: ''[https://www.canlii.org/en/bc/bchrt/doc/2003/2003bchrt39/2003bchrt39.html Chartier v Sooke School District No 62]'', 2003 BCHRT 39 at para 12. Whether it is in the public interest to accept a complaint filed outside the one-year time limit is a multi-faceted consideration, which is governed by the purposes of the HRC, and assessed on a case-by-case basis. Factors that may be important considerations in determining whether it is in the public interest to accept a late-filed complaint include the reasons for the delay, the length of the delay, the significance of the issue raised in the complaint and fairness in all the circumstances. The list of factors that the Tribunal may consider is non-exhaustive:. ''[https://www.canlii.org/en/bc/bcca/doc/2014/2014bcca220/2014bcca220.html British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite]'', 2014 BCCA 220; ''[https://www.canlii.org/en/bc/bchrt/doc/2007/2007bchrt24/2007bchrt24.html Hoang v. Warnaco and Johns]'', 2007 BCHRT 24.

== I. Responding to an Application to Dismiss ==

When faced with an application to dismiss, it is important to meaningfully engage with the reasons behind the application, providing supporting evidence when necessary. If the complainant does not provide evidence in response to an application to dismiss, it may result in a case being dismissed that did hold legal merit. Evidence can be as simple as a statement, although a sworn affidavit is preferable. The statement or affidavit should attach documents that help support the complainant’s argument that the complaint should be allowed to proceed to a hearing. The respondent would then have an opportunity to respond to the arguments raised by the complainant.

If the Tribunal agrees to dismiss the complaint then it will not continue. Applications to dismiss are subject to judicial review.

== J. Case Path Pilot ==

Unfortunately, the number of applications to dismiss filed by respondents has resulted in significant backlog and delay at the Tribunal. In response, on May 6, 2022 the Tribunal launched a one-year pilot project under s. 27 of the Human Rights Code. This pilot project is set to continue for a further six months after May 6, 2023. Under the new Case Path Pilot, the default case path will be for the complaint to proceed directly to a hearing. Only when the Tribunal determines that an application under s. 27 would further the just and timely resolution of the complaint will it permit a respondent to file an application to dismiss. See the Tribunal’s Practice Direction on this new process here: http://www.bchrt.bc.ca/law-library/practice-directions/case-path-pilot-practice-direction.htm.

The Tribunal has developed a strategy to address its backlog, which it communicated to the public on June 30, 2023. Case path decisions will be suspended until November, 2023, and many hearings have been adjourned. See: http://www.bchrt.bc.ca/tribunal/news/backlog-strategy-2023-06-30.htm

== K. Judicial Review ==

If an individual disagrees with a decision of the Tribunal, they may ask the Supreme Court of British Columbia for a “judicial review”. A judicial review differs from an appeal to a higher court. In an appeal, the court has the authority to decide whether or not it agrees with a decision. In a judicial review, the BC Supreme Court simply decides whether or not there is a “ground” for review and may only disturb the Tribunal’s decision if the applicant can demonstrate that the Tribunal:

*Made an “error of law”, e.g., an incorrect interpretation of the HRC;
*Made a finding of fact that is unreasonable or unsupported by the evidence;
*Acted unfairly with regards to the rules of procedure and natural justice; or
*Disregarded legislative requirements; used its discretion arbitrarily, in bad faith, or for an improper purpose; or based its decisions on irrelevant factors.

The standards of review applicable to the Tribunal’s decisions are set out in s. 59 of the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/04045_01 Administrative Tribunals Act]''.

If the Tribunal has made any of these errors, the Court may set aside the decision and will usually direct the Tribunal to reconsider the matter. Section 57 of the ''Administrative Tribunals Act'' mandates that an application for a judicial review must be submitted within '''60 days''' of the date the Tribunal’s decision was issued. In order to seek a judicial review, an individual is required to prepare a petition and affidavit, file the petition and affidavit at the BC Supreme Court, and serve a copy of the filed petition and affidavit on the Tribunal, the Attorney General of British Columbia, and any person whose interests may be affected by the order you desire the Court to make.

{{LSLAP Manual Navbox|type=chapters1-7}}

Small Claims Applications and Procedures Pre-Trial (20:IX)

2023-09-19T18:28:49Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== A. Offers to Settle ==

If a party rejects a formal offer to settle, the trial judge may order a party who rejected an offer to settle to pay a penalty of up to 20 per cent of the offer (''SCR'', Rule 10.1(7)). However, this rule does not apply if the proceeding was started by a notice of civil resolution tribunal claim, or if Rule 9.1 of the ''Small Claims Rules'' applies (the amount of the claim and counterclaim, if any, are each for $10,000 or less, and if one of the following applies: the claim was started after November 25, 2007 and is for $5,000 or less; the claim was started on or after June 1, 2017 and is for more than $5,000; or the claim is part of a proceeding started by a notice of civil resolution tribunal claim and, on or after June 1, 2017) (''SCR'', Rule 9.1(2)). This can happen in one of two ways. If the defendant makes an offer that the claimant rejects and, at trial, the claimant is awarded an amount including interest and expenses that is equal to or less than the offer, the penalty is deducted (''SCR'', Rule 10.1(5)). If the claimant makes an offer the defendant rejects, and the claimant is awarded a sum including interest and expenses that equals or exceeds the claimant’s offer, the penalty is added onto the award (''SCR'', Rule 10.1(6)).

A formal offer to settle must be made using Form 18 and served on the party to whom the offer is made as if it were a Notice of Claim (''SCR'', Rule 10.1(1)). The party offering to settle may also fill out a certificate of service. Neither Form 18 nor the certificate of service is filed at the registry; if the party making the offer wishes the penalties to apply, these forms should be presented to a judge for the first time after a decision is given at trial.

A formal offer must be made within 30 days of the conclusion of a:

* settlement conference;
* trial conference.

Once the first of any of these hearings has concluded and 30 days have elapsed, formal offers cannot be made without the permission of a judge (''SCR'', Rule 10.1(2)). However, the parties can continue to make and accept informal offers to settle up until the point a judgement is rendered.
Parties making formal offers are not permitted to shorten the acceptance deadline on Form 18 - the allotted period for accepting a formal offer is 30 days after the date the offer was served.

== B. Withdrawing a Claim, Counterclaim, Reply, or Third Party Notice ==

A party may withdraw a claim, counterclaim, reply, or third party notice at any time (''SCR'', Rule 8(4)). To do so, a party must file a notice of withdrawal (''SCR'', Rule 8(4)(a), Form scl019)at the registry and then promptly serve the notice of withdrawal on all parties who had been previously served with the claim, counterclaim, reply, or third party notice (''SCR'', Rule 8(4)(b)). A Notice of Withdrawal may be served by ordinary mail or personal service (''SCR'', Rule 18(12)).

Once a pleading is withdrawn, it cannot be reinstated, used, or relied upon without the permission of a judge (SCR, Rules 8(6) and 16(7)).

Withdrawing a claim does not result in the dismissal of a counterclaim. The counterclaim may still proceed unless it is also withdrawn ([http://canlii.ca/t/1fw54 ''Ishikawa v Aoki and Japanese Auto Centre Ltd.'', 2002 BCPC 683]). In the CRT, a party who wants to withdraw its claim can do so in adherence with the CRT Rules. Before the end of case management, the party can request permission to withdraw the claim (CRT Rules (effective May 1, 2021), Rule 6.1). After the dispute has been assigned to a tribunal member, the party must obtain the tribunal member’s permission to withdraw its claim. If the party seeks to pursue a withdrawn claim, they must obtain permission from the tribunal. The tribunal will consider many factors, including the reason for the withdrawal, any prejudice to the other parties, expired limitation periods, the tribunal’s mandate, and the interests of justice and fairness.

== C. Adjournments and Cancellations ==

Once a date for a hearing, settlement conference, or trial has been set, any party can apply for an adjournment or to cancel the hearing (''SCR'', Rule 17(5)).

If seeking an adjournment, try to first obtain the consent of the opposing party prior to applying to a judge. If consent is given, Form 17 must be filed in the registry as soon as possible.

A trial will only be adjourned if a judge is satisfied that it is unavoidable and if an injustice will result to one of the parties if the trial proceeds (''SCR'', Rule 17(5.1)). There is a $100 fee for adjournments where the application is made less than 30 days before a trial and notice of the trial was sent 45 days before the trial’s date (''SCR'', Schedule A, Line 14; Rule 17(5.2)). The fee must be paid within 14 days of the granting of the adjournment (''SCR'', Rule 17(5.3)). If a party fails to pay this fee, a judge may dismiss the claim, strike out the reply, or make any order they deem fair (''SCR'', Rule 17(5.4)).

== D. Pre-Judgment Garnishment ==

If the claim is for debt, a “garnishing order before judgment” may be issued at the same time a Notice of Claim is filed. Except for wages and interest, almost any debt can be garnished before a judgment. Since injustice can sometimes occur from the procedure, few garnishing orders are issued before judgment. Practically, the court will grant a garnishing order before judgment in only certain circumstances, for instance where the claimants will be unable to collect if they succeed ([http://canlii.ca/t/24mt3 ''Webster v Webster'', [1979<nowiki>]</nowiki> BCJ No 918]; [http://canlii.ca/t/g9xlc ''Affinity International Inc. v Alliance International Inc.'', [1994<nowiki>]</nowiki> MJ No 471]; [http://canlii.ca/t/1j00m ''Intrawest Corp. v Gottschalk'', 2004 BCSC 1317]; and [http://canlii.ca/t/1f0vk ''Silver Standard Resources Inc. v Joint Stock Co. Geolog'', [1998<nowiki>]</nowiki> BCJ No. 2887]).

To obtain a pre-judgment garnishing order, the claimant must file an affidavit stating: if a judgment has been recovered or an order made, that it has been recovered or made, and the amount is unsatisfied; or if a judgment has not been recovered, that an action is pending, the time of its commencement, the nature of the cause of action, the actual amount of the debt, claim or demand, and that it is justly due and owing after making all just discounts. In either case, the claimant must also state: that any other person is indebted or liable to the defendant (the garnishee), the judgment debtor or person liable to satisfy the judgment or order, and is in the jurisdiction of the court; and with reasonable certainty, the place of residence of the garnishee (''Court Order Enforcement Act'', RSBC 1996, c 78, s 3(2)).

If the registry grants the order, the claimant must serve both the garnishee and the defendant. If the garnishee is a bank, the garnishing order must be served on the branch where the account is located (''Bank Act'', SC 1991, c 46, s 462(1)). If the garnishee is a credit union, the order must be served at its head office. A separate order must be obtained for each garnishee. The Garnishee must pay the greater of the amount owed to a Defendant and the amount shown on the garnishing order to the Court Registry. It is extremely important to find out the correct legal name of the Garnishee. This is because if you use the wrong name on the Garnishment documents, the Garnishee can refuse to pay to the Court money owed to Defendant. If Garnishee is a company, a search at the BC Corporate Registry Office would be useful.

In some cases of fraud, the Supreme Court can issue a Mareva Injunction freezing the defendant’s worldwide assets ([http://canlii.ca/t/1fv1d ''Aetna Financial Services v Feigelman'', [1985<nowiki>]</nowiki> 1 SCR 2]; [http://canlii.ca/t/1f0vk ''Silver Standard Resources Inc. v Joint Stock Co. Geolog'', [1998<nowiki>]</nowiki> BCJ No. 2887]; [http://canlii.ca/t/j888g ''Fernandes v Legacy Financial Systems'', Inc., 2020 BCSC 885)]; this prevents the defendant from dealing with any of their assets in any way.

It is also possible to apply for a “garnishing order before action”. This is a separate form from a pre-judgment garnishment. This form is used before a Notice of Claim has been registered at a Small Claims Court Registry (see http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Garnishment%20Package.docx).

== E. Transfer to Supreme Court ==

A judge at the settlement/trial conference, at trial, or after application by a party at any time, must transfer a claim to Supreme Court if they are satisfied that the monetary outcome of a claim (not including interest and expenses) may exceed $35,000 (''SCR'', Rule 7.1(1)). However, the claimant may expressly choose to abandon the amount over $35,000 to keep the action in the Small Claims Court (''SCR'', Rule 7.1(2)). For personal injury claims, a judge must consider medical or other reports filed or brought to the settlement conference by the parties before transferring the claim to Supreme Court (''SCR'', Rule 7.1(3)).

If a counterclaim for more than $35,000 is transferred under this rule, the original claim can still be heard in Small Claims Court if the claim is $35,000 or less ([http://canlii.ca/t/1q3w6 ''Shaugnessy v Roth'', 2006 BCCA 547]).

== F. Amendments ==

If a party wants the court or tribunal to order something different or in addition to what is in the initiating document, then the party must amend the claim as early in the process as possible. This would occur if, for example, the claimant sought to change the amount of the existing claim. Failure to do so may result in the additional claim not being heard for procedural fairness reasons. Only in extraordinary circumstances will the CRT amend a claim during the decision phase (''CRT Rules (effective May 1, 2021)'', Rule 1.19(3)). A party who wants to amend, change, add, or remove anything in a filed document, such as the amount, the name of a party, or a fact, must follow Rule 8 ([http://canlii.ca/t/1dt0n ''Royal Bank of Canada v Olson'', [1990<nowiki>]</nowiki> 44 B.C.L.R. (2d) 87 (BCSC)]).

=== 1. Permission to Amend ===

Anything in any filed document can be changed by the party who filed it. Permission is not required unless '''any''' of the following have begun (Rule 8(1)):

*a settlement conference;
*a mediation under Rule 7.4;
*a trial conference under Rule 7.5;
*a trial under Rule 9.1; or
*a trial under Rule 9.2 (''SCR'', Rule 8(1)).

If any of these steps have commenced, the party must apply to a judge for permission to amend the document (''SCR'', Rules 8(1)(b) and 16(7)).

=== 2. Amendment Procedure ===

Changes to the document must then be underlined, initialed, and dated (''SCR'', Rule 8(2)). If a judge has allowed the amendment, the document should reference the order. For example, the document might state, “Amended Pursuant to Rule 8(1)(b) by Order of the Honourable Judge Law on September 1, 2012.” For the specific amending procedure for the CRT, see Rule 1.19 of the CRT Rules.

=== 3. Serving Amendments ===

Before taking any other step in the claim, the party must serve a copy of the amended document on each party to the claim (''SCR'', Rule 8(3)).
If the amended document is a Notice of Claim, Counterclaim, or Third Party Notice, it must be served as if it was an original. If the amended document is a Reply or some other document, it can be sent by regular mail to the address of each party to the action (''SCR'', Rule 18(12)(b)). Documents served by ordinary mail are presumed served 14 days after being mailed unless there is evidence to the contrary (''SCR'', Rule 18(13)). While proof of service is not required, it is recommended.

=== 4. Responding to Amendments ===

Generally, there is no obligation to respond to an amendment (''SCR'', Rule 8(3.1)). For example, a defendant’s current Reply may satisfactorily respond to a minor change to a Notice of Claim. If the defendant chooses not to file an amended Reply, the claimant cannot apply for a default order (''SCR'', Rule 8(3.2)).

A party who wishes to respond to an amendment should follow the same procedures outlined in this section.

{{LSLAP Manual Navbox|type=chapters15-23}}

How Small Claims Proceed (20:VIII)

2023-09-19T18:25:32Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

A number of pilot projects have been implemented at some of the busier court registries. To anticipate how your claim will proceed and which rules will apply, find the court location where your claim will be heard and the heading that best describes your claim.

The length of time it will take to resolve a claim depends on:
# how busy the court is (to find out how far ahead dates are being set at your location, ask at the court registry or the Judicial Case Manager);
# how much time the trial is expected to take (a matter requiring a full day trial will often be scheduled later than a simpler matter);
# whether the documents can be served without delay;
# whether the claim is disputed; and
# the number of applications filed.

Complying with all of the court’s rules and orders will ensure that the claim is heard as soon as possible.

== A. Vancouver (Robson Square) and Richmond Small Claims ==

=== 1. Claims of $5,001-$10,000 ===

Where the claim and counterclaim, if any, are each $5,001 – $10,000 (not including interest or expenses) and are not for either personal injury or financial debt, a simplified trial will be scheduled pursuant to Rule 9.1 of the ''SCR''. The trial is conducted without complying with formal rules of procedure and evidence, but if the adjudicator (meaning a judge or a justice of the peace) deems it appropriate, the adjudicator may conduct the trial with a formal examination and cross-examination of parties and witnesses.

Before the trial begins, an adjudicator will (a) review the documents filed by the parties; (b) determine whether the parties are able to settle the matter; and (c) if the parties are able to settle the matter, make a payment order or other appropriate order in the terms agreed to by the parties (''SCR'', Rule 9.1(21)).

Except for the trial, no other court appearances are typically required. The trial will be held for one hour before an adjudicator. To learn who decides the case and how long it takes, visit http://www.smallclaimsbc.ca/trial/simplified-trial.

=== 2. Claims Exceeding $10,000 ===

Any party to a proceeding where the amount of a claim, counterclaim, or third-party notice exceeds $10,000 may initiate Rule 7.3 of the ''SCR'' which is mediation. Following mediation or if mediation is not initiated, a settlement conference will be scheduled unless the claim relates to a motor vehicle accident where only liability for property damage is disputed. The final step is a trial pursuant to Rule 10 of the ''SCR''.

=== 3. Claims for Financial Debt ===

If the claimant or counterclaimant is in the business of lending money or extending credit and is suing for a debt that arises from a loan or the extension of credit, a summary trial will be scheduled pursuant to Rule 9.2 of the ''SCR''; except for the trial, no other court appearances are typically required. The trial will be held before a judge and usually takes fewer than 30 minutes to complete.

== B. Surrey, North Vancouver, Victoria, or Nanaimo ==

=== 1. Claims of $10,000 or Less ===

After a Notice of Claim is filed and the opposing party responds, a settlement conference will be scheduled unless the claim relates to a motor vehicle accident where only liability for property damage is disputed. The final step is a trial pursuant to Rule 10 of the ''SCR''.

=== 2. Claims Exceeding $10,000 ===

Any party to a proceeding where the amount of a claim, counterclaim, or third-party notice exceeds $10,000 '''may''' initiate Rule 7.3 of the ''SCR'' which is mediation. Following mediation or if mediation is not initiated, a settlement conference will be scheduled unless the claim relates to a motor vehicle accident where only liability for property damage is disputed. The final step is a trial pursuant to Rule 10 of the ''SCR''.

== C. Other Registries ==

=== 1. Claims of $10,000 or Less ===

If the claim does not proceed by way of Simplified Trials (Rule 9.1) or if the claim does not proceed by way of Summary Trial for Financial Debt, a settlement conference will be scheduled unless the claim relates to a motor vehicle accident where only liability for property damage is disputed (''SCR'', Rule 7(2)(b)). If the claim relates to a motor vehicle accident where only liability for property damage is disputed, the registrar will set the claim for trial.

All parties must attend the settlement conference and must be prepared. If a settlement conference cannot be conducted properly because a party is not prepared for it, a judge may order that unprepared party to pay the reasonable expenses of the other parties (SCR, Rule 7(4), (5) & (6)). At a settlement conference, a judge may: (a) mediate any disputed issues; (b) decide on issues that do not require evidence; (c) make a payment order or other appropriate order in the terms agreed by the parties; (d) order that the claim is set for trial conference; (e) set at trial date if a trial is necessary; (f) order a party disclose documents and records; (g) if damage to property is involved in the dispute, order a party to permit a person chosen by another party to examine the property damage; (h) dismiss any claims; and (i) make any other orders (''SCR'', Rule 7(14)).

The final step is a trial pursuant to Rule 10.

=== 2. Claims Between $10,000 and $35,000 ===

Any party to a proceeding where the amount of a claim, counterclaim, or third party notice is between $10,000 and $35,000 may initiate Rule 7.3 of the ''SCR'' mediation by filing a “Notice to Mediate for Claims Between $10,000 and $35,000” (Form 29) and delivering a copy of that filed notice to every other party named on a notice of claim, reply or third party notice that has been filed in the proceeding.

If the parties do not reach an agreement at mediation on all issues, the registrar may set (a) a settlement conference (if a settlement conference has not been completed); (b) a trial (if a settlement conference has been completed); or (c) a trial conference (''SCR'', Rule 7.3(53)).

== D. Civil Resolution Tribunal ($5,000 or less) ==

The Civil Resolution Tribunal is designed to facilitate dispute resolution in a way that is accessible, fast, economical, and flexible. It relies heavily on electronic communication tools. It focuses on the resolution by agreement of the parties first, and by the tribunal’s binding decisions if no agreement is reached.

Adjudicators will decide most cases by reviewing the evidence and arguments submitted through the tribunal’s online tools. Tribunal members may have their staff request additional evidence via email; however, this is rare. The tribunal member may order a telephone, video, or face-to-face hearing if warranted by the circumstances. Again, this is rare, and if parties seek such a hearing, they should request it during their case management. The tribunal can determine all matters relating to the tribunal decision process and, if at any time before or during the tribunal decision process, the tribunal decides that a dispute requires further facilitation, it can refer the dispute back to facilitation, and suspend the tribunal decision process until a facilitator refers the dispute back to the tribunal decision process.

The tribunal member also has the authority to refuse to resolve the dispute on the basis of jurisdiction, or for reasons outlined in section 11 of the ''Civil Resolution Tribunal Act''.

{{LSLAP Manual Navbox|type=chapters15-23}}

Small Claims Default Order (20:VII)

2023-09-19T18:24:35Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

A default order is a court or tribunal decision that is available to apply for when the opposing party fails to respond to the dispute notice or Notice of Claim by the required date. However, it is good practice to take extra measures to ensure the opposing party is truly electing not to respond. Even if a default order is granted, the party in default generally has a low bar to meet when applying to cancel it.

== A. Civil Resolution Tribunal ==

A party named as a respondent to a dispute who fails to respond to a properly delivered Dispute Notice by the date shown on the notice is in default. If every respondent is in default, an applicant may request a default decision and order from the tribunal by

:(a) providing a completed Request for Default Decision and Order form together with supporting evidence of dispute-related expenses and the value of non-debt claims,
:(b) if the applicant served the Dispute Notice, providing a completed Proof of Notice Form, and
:(c) paying the required fee to request a default decision and order.

If the applicant’s claim is for something other than debt, they will need to provide evidence to support their requested remedy. An applicant must request a default decision within 21 days of being requested to do so, or the tribunal may dismiss or refuse to resolve the application.

=== 1. Requesting Cancellation of a Default Order ===

If the party in default seeks to cancel the default order, they may request the cancellation of a default order by

:(a) completing and submitting the Request for Cancellation of Final Decision or Dismissal Form,
:(b) providing a completed Dispute Response Form if one has not already been provided to the tribunal,
:(c) providing evidence to support their request,
:(d) paying the required fee, and
:(e) following any other directions provided by the tribunal.

The tribunal will consider several factors when deciding whether to cancel a default order. In reviewing the request for cancellation, a tribunal member will consider whether

* the requesting party’s failure to respond to the Dispute Notice or to comply with the Act, rules, or regulations was willful or deliberate,
* the request was made as soon as reasonably possible after the requesting party learned about the decision and order, and
* the Dispute Response Form shows a defence that has merit or is at least worth investigating, in the case of a default decision (''Civil Resolution Tribunal Rules (effective May 1, 2021)'', Rule 10.2).

The requesting party has the burden to provide sufficient evidence on the factors above (see [[Responding_to_a_Small_Claim_(20:VI)|Section VI.D: Defences]]).

== B. Small Claims Court ==

If a defendant chooses not to defend a claim, the claimant wins by default. Evidence of the defendant’s choice not to defend the claim can include the defendant’s failure to file a Reply.

A claimant should not rush to the registry to file an Application for Default Order. Sometimes, a defendant may have a good reason for not filing a Reply on time and may have a defence to the claim that the court wishes to explore. In these circumstances, the court will set aside the default order and the claim will proceed in the ordinary course. A default order should only be used where the defendant has truly elected not to defend against the claim.

Where a defendant has not filed a Reply on time, it is a good idea to contact the defendant to determine why the Reply was not filed and to advise the defendant that a default order will be obtained if a Reply is not filed.

A default order can also be obtained if a defendant does not attend a mediation session (''SCR'', Rules 7.3(40)). If the defendant does not attend a settlement conference (''SCR'', Rule 7(17)), trial conference (''SCR'', Rule 7.5(17)), or trial (''SCR'', Rules 9.1(26), 9.2(11), and 10(9))., the judge or justice of the peace may grant a payment order instead of the claimant having to apply for a default order.

=== 1. Requesting a Default Order ===

Unless the defendant was served outside of British Columbia or the court has otherwise ordered, a defendant has fourteen full days to file a Reply. This does not include the date the Notice of Claim was served and the date that the Application for Default Order is filed (''SCR'', Rule 17(10)).

To apply for a default order, the claimant must file Form 5 and pay a $25.00 fee. A certificate of service (Form 4) confirming service of the Notice of Claim and blank Reply form must also be in the file (''SCR'', Rule 6(3)). The claimant can ask the court to add the $25.00 fee plus reasonable expenses to the amount of the default judgment.

If the claim is for a specific amount of debt, the registrar will grant a default order for the amount claimed plus expenses and interest (''SCR'', Rule 6(4)). If the claim is for anything other than a specific amount of debt, the registrar will schedule a hearing before a judge (''SCR'', Rule 6(5)). Once a hearing has been set, the defendant cannot file a Reply without a judge’s permission (''SCR'', Rule 6(8)). If another defendant to the claim has filed a Reply and a date has been set for either a settlement conference, trial conference, or trial, the hearing will be held on that date (''SCR'', Rule 6(6)). A defendant who has not filed a reply is not entitled to notice of the hearing date (''SCR'', Rule 6(7)).

At a hearing, a default order is not automatic. The claimant must give evidence and produce documents to prove the amount owing as well as convince the court that the default order should be granted (''SCR'', Rule 6(9)).

=== 2. Setting Aside Default Orders and Reinstating Claims ===

If a party obtains a default order or a hearing for assessment of damages is scheduled, the party in default can apply to a judge to set aside the default order (''SCR'', Rules 16(6)(j) and 17(2)) and file a Reply (''SCR'', Rule 16(6)(d)). The party in default must file the application as soon as possible upon learning of the default order and attach to the application an affidavit containing:

* a reasonable explanation for not filing a Reply (or failing to attend a mediation session, trial conference, or trial);
* a reasonable explanation of any delay in filing the application;
* the facts supporting the claim, counterclaim, or defence; and
* why permitting the order would be in the interests of justice (''SCR'', Rule 17(2)(b); ''Miracle Feeds v D. & H. Enterprises Ltd.'', [1979] 10 BCLR 58 (Co. Ct.) [Miracle Feeds]; [http://canlii.ca/t/gk0z0 ''Nichol v Nichol'', 2015 BCCA 278]).

The party in default must show that:

* the failure to file a Reply (or failure to attend a mediation session) was not wilful, deliberate or blameworthy ''(Miracle Feeds'', supra; [http://canlii.ca/t/1zt5x ''Hubbard v Acheson'', 2008 BCSC 970]; [http://canlii.ca/t/20rz1 ''McEvoy v McEachnie'', 2008 BCSC 1273]; [http://canlii.ca/t/213m6 ''Anderson v T.D. Bank'', 70 BCLR 267 (BC CA)]; [http://canlii.ca/t/24c11 ''Doyle v Lunny Design and Production Group Inc.'', 2009 BCSC 925]; and [http://canlii.ca/t/1d43b ''Innovest Development Corp. (Receiver of) v Lim'', 1999 CanLII 5356 (BCSC)]);
* the application to set aside the default order was made as soon as reasonably possible after obtaining knowledge of the default order ([http://canlii.ca/t/23whc ''Camnex Marketing Inc. v Aberdeen Financial Group'', 2009 BCSC 763]);
* if there has been a delay in applying to set aside the default order, an explanation for the delay; and
* if the party in default is the defendant, there is a defence that is not bound to fail.

Where the party in default is a defendant who has not filed a Reply, the defendant should also bring copies of the Reply and be prepared to file them immediately if the judge grants permission.

If the default order is canceled, the party who obtained it may ask the court to award reasonable expenses that relate to the cancellation. These expenses may include the cost of filing the application for default order, significant traveling expenses, and lost wages that were incurred only as a result of the cancellation.

{{LSLAP Manual Navbox|type=chapters15-23}}

Responding to a Small Claim (20:VI)

2023-09-19T18:23:21Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}
If a party is responding to a claim over $5,000, proceed to '''Section VI.B.: Possible Strategies'''.

== A. Civil Resolution Tribunal ==

A respondent who receives a Dispute Notice must within 14 days of receiving it (or if notice was provided outside British Columbia within 30 days) complete a Dispute Response Form and provide the Dispute Response Form to the tribunal. CRT forms can be accessed on their website at https://civilresolutionbc.ca/resources/forms/.

A party named as a respondent to a dispute who fails to respond to a properly delivered Dispute Notice by the date shown on the notice is in default. If every respondent is in default, an applicant may request a default decision and order from the tribunal. However, if there are multiple respondents and only one respondent is in default, the entire dispute is assigned to a tribunal member, unless it is otherwise settled in the facilitation process. See [[Small_Claims_Default_Order_(20:VII)|Section VII: Default Order]] for more information

However, if a respondent requires more time to respond, they can request an extension from the tribunal before the deadline to respond (''CRTR'', Rule 3.1(2)).

== B. Possible Strategies ==

=== 1. Notify Insurance Company ===

Many insurance policies cover more liabilities than their description would suggest. For example, many homeowner and tenant policies cover claims for damages or injuries arising from acts or omissions by the insured anywhere in the world. An example would be accidentally tripping a person who falls and breaks their hip. These policies also tend to include most people in the household including young children and foster children.

There are many exclusions and limitations but it is always best to let the insurer know about a claim against you. If the insurer will defend you, the insurer will bear the costs of your defence and possibly pay any damages that are awarded.

:'''Note''': It is important to contact the insurer as soon as possible and to not make any admissions that might jeopardize a defence. Failing to promptly notify the insurer, admitting liability, or taking steps in the claim may permit the insurer to deny coverage.

=== 2. Apologising ===

Many lawsuits arise or continue because a wrongdoer has not apologized to the party who was wronged. In BC, a person may apologize for a wrongful act or failure to act without the apology becoming an admission of liability (''Apology Act'', SBC 2006, c 19, 2(1) and (2)). A sincere apology can often avert litigation or form an important foundation for a settlement. Under the act, such an apology may include words that admit or imply an admission of fault.

'''Admissions of fact''': however, at common law, the courts and CRT have drawn a distinction between apologies covered by the the ''Apology Act'', (admissions of fault or liability) and those that include admissions of fact. The courts have found that factual admissions (“''I am sorry, I was looking at my phone while driving''”) can be considered by decision makers. Explanatory statements that accompany apologies such as “ ''I was in a hurry''” or “''I was angry''” go beyond admissions of fault excluded by the ''Apology Act'' and may be accepted into evidence (''Schnipper v. Nadeau'', 2022 BCCRT 173)

=== 3. Option to Pay all or Part ===

If a defendant pays the entire amount of the claim directly to the claimant, the defendant need not file a Reply (''SCR'', Rule 3(1)(a)). The defendant should retain a receipt as proof of payment and request that the claimant withdraws the claim. Only the claimant may withdraw a claim and, if a withdrawal is filed, all parties who were served with the Notice of Claim must be served with a copy of the withdrawal.

When considering this option, a defendant should be aware of other possible problems aside from the lawsuit. For example, if the claimant has placed derogatory information on the defendant’s credit file, the defendant should ask the claimant to remove this negative information as part of the settlement. If the claimant is unwilling to remove the information, the defendant may still settle the claim but may find it difficult or impossible to remove the information from the credit file. The process for removing incorrect information from a person’s credit file is outside the scope of this guide.

In Small Claims Court, if the entire claim is admitted but the defendant requires time to pay or only part of a claim is admitted (''SCR'', Rule 3(1)(b) or (c)), the defendant must file a reply form but may also propose a payment schedule for what is admitted. The payment schedule must detail how the amount will be paid back. The Registrar can order the proposed payment schedule if the claimant consents to it (''SCR'', Rule 11(10)(b)). If the claimant does not consent to the proposal or no payment schedule is proposed, the claimant may summon the defendant to a payment hearing (see [[Enforcement_of_a_Small_Claims_Judgment_(20:XVII)|Section XVII: Enforcing a Judgment]]). Similarly, at the CRT the defendant may file a response admitting the claim which the applicant can enforce through Small Claims Court.

=== 4. Option to Oppose all or Part ===

A defendant who opposes all or part of the claim (''SCR'', Rule 3(1)(d)) must file a Reply form detailing what is admitted, what is opposed, or what is outside the defendant’s knowledge. The reply should list reasons for any parts that are opposed. A defendant should avoid a general denial of the entire claim; a detailed examination of each element of the claim and why the defendant thinks it is wrong is much more persuasive.

Before deciding to oppose a claim, a defendant should ensure that there is a legal defence to the claim. A penalty can apply if a defendant proceeds through trial with a Reply that is bound to fail (''SCR'', Rule 20(5)).

=== 5. Counterclaim ===

If the defendant wants the court to order something other than a dismissal of the claimant’s claim, the defendant will need a counterclaim. A counterclaim means that, in addition to the defendant disputing the claim, the defendant seeks to sue the claimant. A defendant may file a counterclaim whether they agree or disagree with all or a part of the claim (''SCR'', Rule 4(1)). Counterclaims are claims filed by the defendant against the applicant; they are generally based on the same underlying facts as the applicant’s claim. A defendant who wishes to counterclaim should review '''Section III: Do You Have a Claim?''' and [[Choosing_the_Proper_Forum_for_Small_Claims_(20:IV)|Section IV: Choosing the Proper Forum]]. A counterclaim is essentially a Notice of Claim but in a different form. A counterclaim must have a legal basis; there are penalties for proceeding to trial if there is no reasonable basis for success (''SCR'', Rule 20(5)).

Although a defendant can start a separate claim either in Small Claims Court or another forum instead of counterclaiming, if the parties and witnesses are the same and the claim falls within the Small Claims Court jurisdiction, it is preferable that the defendant file a counterclaim so that both matters are heard together. If the defendant has commenced an action in a different forum, this should be mentioned in the Reply (see https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/small-claims/scl002.pdf)

A counterclaim is made on the Reply form by following the instructions and paying the required fee. The fee for a counterclaim is the same as the fee for a Notice of Claim and is eligible for a fee waiver. For more information about making a counterclaim, refer to Guide #2 - Making a claim for proceedings initiated in small claims court (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim) and Guide #3 - Making a claim for proceedings previously initiated before Civil Resolution Tribunal (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim-crt).

The relationship between a counterclaim and a set-off should be noted. A counterclaim is a standalone claim and it is possible for a defendant to succeed on a counterclaim even when the claimant has been unsuccessful on the primary claim. A set-off, on the other hand, is a defence. If the defendant is successful, a set-off will reduce the amount payable to the claimant. In other words, the amount that the defendant claims the claimant owes them is subtracted from any damages claimed by the claimant. If the claimant is unsuccessful, the set-off defence does not apply; the defendant is not awarded the amount of the set-off. For more information about set-offs see: [https://canlii.ca/t/27vgj Jamieson v. Loureiro, 2010 BCCA 52].

==== a) Filing and Service ====

As the counterclaim is on the reply form, it must be filed at the same time as the Reply (''SCR'', Rule 4(1) and (2)), within the time allowed for filing a Reply (''SCR'', Rule 3(4)), and at the registry where the notice of claim was filed (''SCR'', Rule 3(3)).

The registry will serve the claimant with the reply and counterclaim within 21 days of it being filed (''SCR'', Rules 3(5) and 4(2)).

==== b) Replying to a Counterclaim ====

Once served, the claimant (now a defendant by counterclaim) must follow the same rules as replying to a Notice of Claim (''SCR'', Rule 5(7)). The claimant should review this section of the guide in its entirety.

=== 6. Counterclaims through the Civil Resolution Tribunal ===

Once served, the applicant (now a respondent by counterclaim) must follow the same rules as replying to a Dispute Notice (''SCR'', Rule 1.1(32) and (33)). The applicant should review this section of the guide in its entirety.

Unless the tribunal directs otherwise, within 30 days of providing the Dispute Response Form to the tribunal, a respondent can request a “counterclaim” by:

* indicating in a completed Dispute Response Form that the respondent will add at least one claim in the dispute;
* completing an Additional Claim Form;
* providing the Additional Claim Form to the tribunal; and
* paying the required fee to add a claim (see [[Civil_Resolution_Tribunal_Fees_(20:App_I)|Appendix I: Civil Resolution Tribunal Fees]]). Note: a counterclaim is not necessary if the respondent is only claiming fees and dispute-related expenses; a respondent may claim fees and dispute-related expenses in the tribunal decision process.

=== 7. Third Party ===

If the defendant who has filed a Reply believes that a person or legal entity other than the claimant should pay all or part of the claim, they may make a claim against that other party by completing a Third Party Notice. Find Form 3 at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms. If a settlement conference, mediation session, or a trial conference has not been held, leave of the court is not required (''SCR'', Rule 5(1)(a)). If any of these have been held, the defendant must apply to the court for an order permitting the counterclaim to be filed against the third party (''SCR'', Rule 5(1)(b)).

A third-party claim is different from a claim against the incorrect defendant. A third party claim is made when a defendant believes that a third party should reimburse them if they are found to be liable to the claimant. For example, if a defendant is sued for a credit card debt, the defendant may request that the third-party, the cardholder who actually spent the money, gives rise to the debt.

A defendant who wishes to issue a third party notice should review '''Section III. Do You Have A Claim?''' and [[Choosing_the_Proper_Forum_for_Small_Claims_(20:IV)|Section IV. Choosing The Proper Forum]]. A third-party claim is essentially a Notice of Claim but in a different form. A third party claim must have a legal basis and there are penalties for proceeding to trial if there is no reasonable basis for success.

==== a) Filing and Service ====

To start a third-party claim, the defendant must complete Form 3 and file it in the same registry where the Notice of Claim was filed (''SCR'', Rule 5(2)). The defendant must serve the third party with a copy of the filed Form 3, a blank Reply form, a copy of the Notice of Claim, a copy of the Reply to the Notice of Claim, and all of the documents and notices the other party would have received (''SCR'', Rule 5(3)); all of these documents are to be served in the same manner as serving a Notice of Claim (SCR, Rule 5(4)). A defendant has only 30 days after filing to serve the third party and file a certificate of service at the registry (''SCR'', Rule 5(5)); find Form 4 at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms. If the third party is not served and the certificate of service is not filed within '''30 days''', the third party notice expires but can be renewed (''SCR'', Rule 5(5.1)).

The registry will serve the claimant with the third party notice within 21 days of its being filed (''SCR'', Rule 5(6)).

==== b) Replying to a Third Party Notice ====

Once served, a third party must follow the same rules as replying to a Notice of Claim (''SCR'', Rule 5(7)). The third-party should review this section of the guide in its entirety.

==== c) Adding a Third Party through the Civil Resolution Tribunal ====

A respondent who believes another person is responsible for a claim can request resolution of the claim against that other person, often referred to as a “third party claim” by:
:(i) indicating in a completed Dispute Response Form that the respondent will apply for dispute resolution against the other person,
:(ii) completing an Additional Claim Form identifying the other person and describing any claims against that person,
:(iii) providing the Additional Claim Form to the tribunal, and
:(iv) paying the required fee to add a claim (see [[Civil_Resolution_Tribunal_Fees_(20:App_I)|Appendix I: Civil Resolution Tribunal Fees]]).

A respondent who adds an additional party to a claim must complete the steps for applying for CRT Dispute Resolution, except the time frame for providing notice to the other person is 30 days instead of 90 days, and the original Dispute Notice and any responses must be provided along with the Dispute Notice for the additional claims.

== C. Time Limits ==

Unless a defendant pays the amount of the claim directly to the claimant and asks the claimant to withdraw the claim (''Small Claims Rules, supra'', Rule 3(1)(a)), the defendant must file a Reply within the required time limit. '''Failure to file a Reply may result in the claimant obtaining a Default Order.'''

The time limits for filing a Reply are generally the same whether the defendant is:

*a defendant served with a Notice of Claim (''SCR'', Rule 3(4));
*the claimant served with a counterclaim (''SCR'', Rule 4(3.1)(b)); or
*a third party served with a third party notice (''SCR'', Rule 5(7)).

If the defendant was served inside British Columbia, a Reply must be filed within '''14 days after service''' (''SCR'', Rule 3(4)). If the defendant was served outside British Columbia, a Reply must be filed within '''30 days after service''' (''SCR'', Rule 3(4)). The one exception is where the claimant is served with a counterclaim. The claimant is required to file a Reply within 14 days after service even if the claimant is served outside British Columbia.

== D. Defences ==

For every cause of action, there is usually at least one possible defence. Some of the more common defences are listed here however a defendant should research the claimant’s cause of action or obtain legal advice to determine which defences might be applicable.

=== 1. Common Defences ===

==== a) Contributory Negligence ====

Where a claimant was careless and this carelessness contributed to the damages suffered, a defendant might plead the defence of contributory negligence. An example is where a claimant tripped over a bag that was carelessly left in a walkway. The defendant may be liable but the claimant may have been contributorily negligent for failing to keep watch for obstacles.

A defendant who believes that the claimant was partially at fault should state in the reply: “The defendant pleads and relies upon the Negligence Act” (''Negligence Act'', RSBC 1996, c 333). Each party is liable to the degree that they are at fault; where degrees of fault cannot be determined, liability is apportioned equally (s 1(2)).

==== b) Consent ====

Where, by express or implied agreement, a claimant knew of and understood the risk they were incurring and voluntarily assumed that risk, the defendant will not be liable. Because voluntary assumption of risk is a complete defence, it is very difficult to prove.

==== c) Criminality ====

Where a claimant stands to profit from criminal behaviour or compensation would amount to an avoidance or disavowal of a criminal sanction, the claimant cannot recover damages ([http://canlii.ca/t/1fs4g ''Hall v Hebert'', [1993<nowiki>]</nowiki> 2 SCR 159]; [http://canlii.ca/t/1vmgv ''British Columbia v Zastowny'', [2008<nowiki>]</nowiki> 1 SCR 27]). This is narrowly construed and a claimant should read [http://canlii.ca/t/1vmgv ''Hall v Hebert''] before relying upon it.

==== d) Inevitable Accident ====

If the defendant can show that the accident could not have been prevented even if the defendant had exercised reasonable care, the defendant cannot be liable ([http://canlii.ca/t/1tvmf ''Rintoul v X-Ray and Radium Industries Ltd.'', [1956<nowiki>]</nowiki> SCR 674)]. For this defence to apply, the defendant must have had no control over whatever occurred and its effect could not have been avoided even with the best effort and skill.

==== e) Illegality ====

If the claimant is suing on a contract that is illegal (i.e., it calls for a criminal interest rate), the defendant may ask the court to decline to enforce the illegal provision or possibly the entire contract. Depending on the circumstances, the court may consider modifying the contract to remove the illegality.

==== f) Self Defence ====

If the defendant honestly and reasonably believed that an assault or battery was imminent and used reasonable force to repel or prevent the assault or battery, the defendant may not be liable for any injuries or damage suffered by the claimant as a result ([http://canlii.ca/t/1fsx3 ''R. v Lavallee'', [1990<nowiki>]</nowiki> 1 SCR 852]; [http://canlii.ca/t/gwf9z ''Wackett v Calder'', [1965<nowiki>]</nowiki> 51 D.L.R. (2d) 598]; ''Brown v Wilson,'' [1975] BCJ No. 1177; ''R v Beckford'', [1987] All ER 425).

==== g) Defence of Third Parties ====

The same general rules apply as for self-defence provided that the use of force is reasonable ([http://canlii.ca/t/g1905 ''Gambriell v Caparelli'', [1974<nowiki>]</nowiki> 54 D.L.R. (3d) 661]).

==== h) Mitigation ====
A claimant who alleges to have suffered harm has a duty to take reasonable actions to minimize their losses. This applies, for instance, if the claimant was injured in a personal injury matter or if the claimant suffered harm from a breach of contract. The defendant bears the onus of proving on a balance of probabilities that the claimant did not mitigate their losses. If it is found that the claimant did not take reasonable steps to minimize their losses, such as seeking medical care to assist with their injuries in a personal injury action, then the damages payable to the claimant may be reduced.

== E. Filing a Reply ==

The Reply must be filed in the same registry where the Notice of Claim was filed (''SCR'', Rule 3(3)). There is a filing fee except where the defendant admits and agrees to pay the entire claim or obtains a fee waiver.

Generally, a Reply cannot be filed late however, in practice, the registry may allow a Reply to be filed late as long as the registrar has not made a default order or set a date for a hearing (''SCR'', Rule 3(4)(b)).

== F. Serving a Reply ==

The registry will serve the Reply and Counterclaim, if any, on each of the other parties within 21 days (''SCR'', Rules 3(5) and 5(6)).

{{LSLAP Manual Navbox|type=chapters15-23}}

Starting a Small Claim (20:V)

2023-09-19T18:20:08Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== A. Pronouns ==

Both the BC Supreme Court (“BCSC”) and BC Provincial Court (“BCPC”) have issued practice directives regarding the form of address for parties and counsel in proceedings, effective December 16, 2020. The changes support a shift in professional practice towards asking all people how they should be respectfully addressed. A link to the BCSC practice direction can be found here: [https://can01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.bccourts.ca%2Fsupreme_court%2Fpractice_and_procedure%2Fpractice_directions%2Fcivil%2FPD-59_Forms_of_Address_for_Parties_and_Counsel_in_Proceedings.pdf&data=04%7C01%7Cmpomponio%40lslap.bc.ca%7Cfd1a1c4270da4286a21808d9321c3db1%7Cd4bec773a2bd42bf80170ee22f61bc95%7C0%7C0%7C637595919155342139%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=gCTeq5yOuQy3a%2FGQgFbl4VJVRLsWEA8wJ0SviKzdDfM%3D&reserved=0 PD-59_Forms_of_Address_for_Parties_and_Counsel_in_Proceedings.pdf (bccourts.ca)]. A link to the PCSC practice direction can be found here: [https://can01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.provincialcourt.bc.ca%2Fdownloads%2FPractice%2520Directions%2FNP%252024%2520Form%2520of%2520Address%2520for%2520Parties%2520and%2520Lawyers.pdf&data=04%7C01%7Cmpomponio%40lslap.bc.ca%7Cfd1a1c4270da4286a21808d9321c3db1%7Cd4bec773a2bd42bf80170ee22f61bc95%7C0%7C0%7C637595919155342139%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=QBsOlRhraXePmbRETS3qebMuzdh5NBYfIbAGGNlBbtY%3D&reserved=0 NP 24 Form of Address for Parties and Lawyers.pdf (provincialcourt.bc.ca)]. For example, at the beginning of any in-person or virtual proceeding, when parties are introducing themselves, or lawyers are introducing themselves, their client, witness, or another individual, they should provide the judge or justice with each person’s name, title (e.g. “Mr./Ms./Mx./Counsel Jones”) and pronouns to be used in the proceeding. If a party or counsel do not provide this information in their introduction, they will be prompted by a court clerk to provide this information.

At the CRT, the staff follows a similar procedure by asking all parties to identify their pronouns and form of address (e.g. “Mr./Ms./Mx./Counsel Jones”). The CRT works with LGBTQ+ organizations to ensure that it approaches this issue in a respectful and inclusive way that is free of assumptions. If a party does not provide this information, the CRT will default to gender neutral forms of address.

== B. Settlement Letter ==

The fastest and least expensive way to resolve a dispute is to tell the other person what you are claiming from them and why you are claiming it. If the other person agrees with the amount or responds in a manner that leads to a settlement, both parties will save the time, effort, expense, and uncertainty of a lawsuit.

Good faith attempts to settle may involve concessions and admissions of liability. For example, a claimant may offer to settle for less than the claim to account for the cost, time investment, and risk of going to trial. A defendant, for example, may admit liability but dispute the amount owed. Whenever parties can agree on certain points, the likelihood of settlement increases.

Because of the strong public interest in settlement, these bona fide settlement attempts are protected by settlement privilege. This means that, if the matter is not settled, any admissions during negotiations cannot be used against the party who made them ([https://decisions.civilresolutionbc.ca/crt/crtd/en/item/511807/index.do ''Boles v. Harrison'', 2021 BCCRT 906]). It is prudent to include the words “WITHOUT PREJUDICE” in correspondence involving bona fide attempts to settle to indicate that the party sending the document wishes to rely on settlement privilege; settlement privilege will still apply, however, even if “WITHOUT PREJUDICE” is not included.

Settlement letters should be brief, factual, and clearly state the amount claimed even if that amount exceeds $35,000. Settlement letters should have a courteous tone as a letter that invokes a hostile reaction from the recipient will be counter-productive. A party writing a settlement letter should never threaten criminal or regulatory penalties; '''extortion is a criminal offence'''. If a settlement between the two parties is not successful, then you may consider drafting a notice of claim.

== C. Identifying the Defendant(s) ==

If a settlement letter is unsuccessful, parties will be required to file a Notice of Claim through Small Claims Court if the claim is for between $5,001 and $35,000; see Section V.G.: Drafting the Notice of Claim. If the amount claimed is $5,000 or less, a party will apply for CRT dispute resolution; see Section V.E: Civil Resolution Tribunal.

When drafting a Notice of Claim and throughout the litigation process, it is important to stick to the '''relevant''' facts. Court is not a forum for airing grievances that do not give rise to a claim. For example, in a claim for breach of contract, the fact that the defendant acted rudely is generally not relevant to the claim. Including irrelevant facts confuses the issues, wastes time, raises tensions, and makes it more difficult to successfully prove the claim. A good rule to follow for each type of claim is to include '''only the facts necessary''' to satisfy the legal test for that type of claim; brief is better.

It is important to make your cause of action (i.e., negligence, breach of contract, etc.), type of damages, and amount of damages very clear. Do not let the judge guess what you want.

=== 1. Suing a Business ===

==== a) Corporation ====

A corporation is a legal entity that is separate from its shareholders and employees. It is identified by a corporate designation such as Incorporated, Limited, Corporation, their abbreviations Inc., Ltd., or Corp., or their French equivalent following the business name.

A corporation can enter into contracts and can sue or be sued. Generally speaking, a corporation’s shareholders, officers, directors, and employees are not liable for the actions or liabilities of the corporation or their own actions while acting within the scope of their office or employment. A person who feels that a shareholder, director, officer, or employee of a corporation might be liable should obtain legal advice.

Corporations may be either provincially or federally incorporated. A federal company is incorporated under the ''Canada Business Corporations Act'', RSC 1985, c. C-44 [CBCA]. A BC corporation is incorporated under the ''Business Corporations Act'', SBC 2002, c 57 [BCBCA]. Corporations may also be registered under the laws of the other provinces and territories.

Because a corporation can have multiple locations, every corporation, including non-BCBCA corporations, doing business in BC must provide an address where it can be served with notices of claim and other important documents.

To sue a corporation, a claimant must perform a company search to obtain the registered name and address for the defendant corporation (''SCR'', Rule 1(2.1); and Rule 5(2.1)). The corporation’s registered name and address must be the ones on the notice of claim form and a corporate search must be included when filing the notice of claim.

To search for a '''provincially''' regulated company, the client may request a company or society search in person:

'''Surrey Board of Trade'''

{{ResourcesLSLAP_addressphone
| address = 101 – 14439 104th Ave Surrey, BC V3R 1M1
| phone = (604) 581-7130 Toll-free: 1-866-848-7130
}}

'''Small Business B.C.'''

{{ResourcesLSLAP_addressphone
| address = 54 - 601 West Cordova St Vancouver, BC V6B 1G1
| phone = (604) 775-5525 Toll-free in B.C.: 1-800-667-2272
}}

'''BC Registry Services'''

{{ResourcesLSLAP_addressphone
| address = 940 Blanshard Street Victoria, BC V8W 2H3
| phone = (250) 387-7848 Vancouver: (604) 660-2421 Toll-free in B.C.: 1-877-526-1526
}}

The client may also write to:

{| class="wikitable"
| style="font-weight: bold;" | Registrar of Companies
|-
| P.O. Box 9431
Station Provincial Government

Victoria, BC V8W 9V3
|}

For more information about searching for provincial companies, refer to:
*http://smallbusinessbc.ca/services/
*http://www.bcregistryservices.gov.bc.ca/
*http://www.bconline.gov.bc.ca (online feature now available by opening a new account).

Partnerships and non-profit societies are also registered in the company directory and would show up in a search. In cases that involve franchises, it is important to do a company search to see how the other party is registered; it may be possible to sue the parent company and the individual who owns the franchise rights. The search costs $10, and cheques and/or money orders should be made payable to the Minister of Finance at: BC Registries and Online Services, Courier: 200 - 940 Blanshard Street, Victoria, BC V8W 3E6, Mail: PO Box 9431 Stn Prov Govt, Victoria, BC V8W 9V3.

'''If Unincorporated:'''

{{ResourcesLSLAP
| address = City of Vancouver Licence Office 515 West 10th Ave Vancouver, BC V5Z 4A8
| phone = (604) 873-7611
| online = [http://vancouver.ca/doing-business/licenses-and-permits.aspx Website]
}}

To search for a '''federally''' regulated company, refer to:

{{ResourcesLSLAP
| address = Industry Canada C.D. Howe Building 235 Queen Street Ottawa, Ontario K1A 0H5
| online = [http://www.ic.gc.ca Website]
}}

==== b) Partnership ====

A partnership can exist between one or more persons and is governed by the ''Partnership Act'', RSBC 1996, c 348 [PA].

The rules for determining whether a partnership exists are set out in s 4 of the PA. Generally speaking, all partners are personally liable for the debts of the business: s 7 of the PA. As it is often impossible to tell whether a business is a partnership or a sole proprietorship from the name alone, a claimant should perform a company search to learn the true structure of the business as well as the name and address of each partner.

The proper way to list each partner on the notice of claim is:

:Jane Doe d.b.a. XYZ Partnership

:John Doe d.b.a. XYZ Partnership

:ABC Company Ltd. d.b.a. XYZ Partnership

:'''NOTE:''' “d.b.a.” stands for “doing business as”

:'''NOTE:''' One should be careful to not confuse partnerships with limited partnerships (LP) or limited liability partnerships (LLP).

==== c) Sole Proprietorship ====

A sole proprietorship allows a single person to do business under a business name. Sole proprietorships are registered under Part 4 of the PA. A sole proprietor is personally responsible for the debts of the business.

As it is impossible to tell whether a business is a partnership or a sole proprietorship from the name alone, a claimant should perform a company search to learn the true structure of the business as well as the name and address of the proprietor.

The proper way to list a sole proprietor on the notice of claim is:

:Jane Doe d.b.a. XYZ Company

:John Doe d.b.a. XYZ Company

:ABC Company Ltd. d.b.a. XYZ Company

:'''NOTE:''' “d.b.a.” stands for “doing business as”

==== d) Other ====

For other forms of businesses such as limited partnerships (LP), limited liability partnerships (LLP), and unlimited liability corporations (ULC), legal advice is recommended.

=== 2. Suing a Person over 19 Years Old ===

Do not use titles such as Mr., Mrs. or Ms. Use full names, not initials (i.e., “Dr. D. Smith” should be “Doris Smith”). Claimants may sue more than one defendant if the claim against each defendant is related. Divide the “To” space in half and use one half for the name and address of each defendant; alternatively, the notice of claim filing assistant makes it convenient to add multiple defendants (see https://justice.gov.bc.ca/FilingAssistant/).

=== 3. Suing a Society ===

A society is a type of not-for-profit corporation registered pursuant to the ''Societies Act'', SBC 2015, c 18. The procedure and principles for suing a society are the same as for corporations. A company search is required to ascertain the society’s registered address (''SCR'', Rule 1(2.2) and Rule 5(2.2)).

=== 4. Suing I.C.B.C. ===
The legal name of ICBC is the Insurance Corporation of British Columbia. It is a special type of corporation and the usual corporate designation such as Inc. is not required.

=== 5. Suing the Government ===

==== a) Federal Government ====

The federal government should be named as either “Attorney General of Canada” or “Her Majesty in right of Canada”. If an agency of the Crown is to be sued and '''if a federal Act permits''', the agency may be sued in the name of that agency; see ''Crown Liability and Proceedings Act'', RSC 1985, c C-50, s 23(1); [http://canlii.ca/t/1f4rl ''Goodhead v Law Society (British Columbia)'', [1997<nowiki>]</nowiki> BCJ No. 1779 (BCSC)].

==== b) Provincial ====

The provincial government should be named as “Her Majesty the Queen in right of the Province of British Columbia” (''Crown Proceeding Act'', RSBC 1996, c 89, s 7).

It should be noted that the CRT cannot resolve disputes where the claim is against the government or the government is a party to the dispute. [[Choosing_the_Proper_Forum_for_Small_Claims_(20:IV)|See Section IV.C.: Civil Resolution Tribunal]] for more information on the jurisdiction of the CRT.

=== 6. Suing the Police ===

The “Royal Canadian Mounted Police” is not a legal entity that can sue or be sued ([http://canlii.ca/t/1dtx9 ''Dixon v Deacon Morgan McEwen Easson'', [1990<nowiki>]</nowiki> B.C.J. No. 1043 (BCSC)]. A claimant who wishes to sue for damages arising from the conduct of a police officer should sue the Minister of Public Safety and Solicitor General. The individual police officer and the Attorney General of Canada may be named in cases alleging gross negligence or willful misconduct on the part of the police officer ([http://canlii.ca/t/28lkh ''Amezcua v Taylor'', 2010 BCCA 128]; [http://canlii.ca/t/1jsn7 ''Roy v British Columbia (Attorney General)'', 2005 BCCA 88)]. The Minister of Public Safety and Solicitor General is the proper defendant in a civil action involving the RCMP or RCMP members as of Dec 11, 2015 (''Order of the Lieutenant Governor in Council'', No. 762/2015).

RCMP officers are immune from liability for anything done in the performance of their duty except where the officer has been guilty of dishonesty, gross negligence, or malicious or willful misconduct, or the cause of action is libel or slander. See ''Police Act'', RSC 1996, c327, s 11 and s 21; ''Crown Liability and Proceedings Act'', RSC 1985, c. C-50, s 3 and s 10; [http://canlii.ca/t/g6ts5 ''Acumar Consulting Engineers Ltd. v The Association of Professional Engineers and Geoscientists of British Columbia (APEGBC)'', 2014 BCSC 814 at para 49].

A claimant who is suing a municipal police force should sue the individual police officers as well as the municipality employing the police officers.

=== 7. Suing a Municipality ===

Municipalities are special corporations. A claimant should search the BC Gazette to obtain the legal name of the municipality.

It is critical that a claimant provide written notice to the city within ''two months'' of the time, place, and manner in which the damage has been sustained. As well, all legal actions must be commenced within 6 months after the cause of action first arose (''Local Government Act'', RSBC 2005, c 1, s 735, s 736). For more information, please see '''Chapter 5: Public Complaints'''.

=== 8. Suing a Young or Mentally Incompetent Person ===

A minor, also called an infant, is a person who is under 19 years of age at the time the claim is filed. Mentally incompetent persons, as well as minors, are persons with a legal disability. When suing such persons, the following rules of the ''Supreme Court Civil Rules'', BC Reg 168/2009 [SCCR] apply:

*Rule 4-3 (2)(f) for serving documents by personal service;
*Rule 7-2 (9) for examination of mentally incompetent persons for discovery
*Rule 12-5 (50) for evidence from examinations for discovery for mentally incompetent persons
*Rule 20-2(8) for the lawyer for a person under disability
*Rule 20-2(10) if a party to a proceeding becomes a mentally incompetent person
*Rule 25-2 (10) and (11) when delivering notice of applying for an estate grant or for the resealing of a foreign grant in relation to the estate.

Persons with a legal disability must be represented by a litigation guardian (''Supreme Court Civil Rules'', BC Reg 168/2009, Rule 20-2(2)). With some limitations, a litigation guardian can be any person ages 19 years or older who is ordinarily resident in British Columbia. The litigation guardian must complete and submit the Litigation Guardian Declaration form (''CRT Rules (effective May 1, 2021)'', Rule 1.13(2)).

If the claim involves personal injury, SCCR Rule 20-2(4) applies and requires that the litigation guardian act by a lawyer unless the litigation guardian is the Public Guardian and Trustee.

A party cannot take a step in default against a person with a legal disability without the court’s permission. A settlement with a party under a legal disability is not binding unless the court approves it.

=== 9. Suing an Insurance Company other than ICBC ===

Claims against insurers for coverage can be complicated. A claimant should be aware that claims against insurers may have a shorter limitation period. A claimant should research the law surrounding an insurer’s duty to defend, and an insurer’s duty to indemnify.

=== 10. Suing an Unknown Person ===

If a claimant does not know the identity of one or more parties, the claimant can still file a claim using a misnomer. For example, the claimant would list the unidentified defendant as either John Doe or Jane Doe as the case may be. If there are multiple unknown parties, the claimant could add a number to each misnomer (e.g., John Doe 1; John Doe 2). Misnomer also applies to unknown companies.

A claimant should research the law surrounding misnomers and ensure that both the unidentified party and its actions are described in as much detail as possible.

If the party is unknown because of a motor vehicle hit and run, the claimant may sue ICBC as a nominal defendant.

== D. Can the Defendant(s) Pay? ==

One cannot squeeze blood from a stone. If a defendant has insignificant assets or income, the defendant may have no means to pay a judgment; such a person is “judgment-proof” and a claimant with an uncollectible judgment is said to be holding an “empty judgment”. A claimant should consider whether it is worth the time, expense, and stress of suing a judgment-proof defendant.

A judgment is enforceable for ten years after it is issued (''Limitation Act'', RSBC 1996, c 266, s 7; ''Limitation Act'', SBC 2012, c 13, s 7). After this time, unless it is renewed, the judgment expires and becomes uncollectible. On some occasions, a previously judgment-proof defendant will “come into money” by receiving an inheritance or winning the lottery. This is a rare occurrence and a claimant must invest time and effort to monitor the defendant’s circumstances over the ten years that the judgment is enforceable. A more common change in a judgment-proof defendant’s circumstances is the defendant securing a higher-paying job.

A claimant should also consider the likelihood of the defendant going bankrupt. If the defendant goes bankrupt, the claimant may recover little or none of the amount of the judgment. For more detail on bankruptcy, see [[Enforcement_of_a_Small_Claims_Judgment_(20:XVII)|Section XVII: Enforcement of a Judgment]].

A claimant must decide whether to sue before the limitation period expires. If the limitation period expires, a claimant cannot later sue on that cause of action if the defendant’s circumstances change.

== E. Civil Resolution Tribunal ==

The Civil Resolution Tribunal is designed to facilitate dispute resolution in a way that is accessible, speedy, economical, and flexible for amounts of $5,000 and under. It relies heavily on electronic communication tools. It focuses on a resolution by agreement of the parties first, and by the Tribunal’s binding decisions if no agreement is reached. Thus, there are several steps to the CRT process before actually applying for dispute resolution with the tribunal.

=== 1. Self Help ===

A claimant must first attempt to resolve the dispute using the tribunal’s online dispute resolution services. The claimant may use the website’s resources to gather information and diagnose their claim.

==== a) Solution Explorer ====

The Solution Explorer, available on the CRT website, includes free legal information and self-help tools, such as guided pathways, interactive questions and answers, tools, templates, and other resources. Applicants can apply to the CRT for dispute resolution right from the Solution Explorer.

Small Claims Solution Explorer website:
https://civilresolutionbc.ca/solution-explorer/

Strata Solution Explorer website:
https://civilresolutionbc.ca/solution-explorer/strata/

Motor Vehicle Injury Solution Explorer website:
https://civilresolutionbc.ca/solution-explorer/vehicle-accidents

Societies and Cooperative Associations Solution Explorer
https://civilresolutionbc.ca/solution-explorer/societies-and-cooperative-associations/

==== b) Online Negotiations ====

The parties may then engage in an online negotiation that is monitored but not mediated or adjudicated. Online negotiations connect parties in order to encourage negotiated settlement. This tool will guide the parties through a structured, low-cost negotiation phase.

=== 2. Dispute Resolution – Case Management ===

If a claimant’s attempt at online dispute resolution has been unsuccessful, the claimant must formally request resolution of the claim through the tribunal and pay all required fees. Generally, a claimant cannot request tribunal resolution if there is a court proceeding or other legally binding process to resolve the claim and a hearing or trial in that court or other legally binding process has been scheduled or has occurred to decide that claim.

During the case management phase, the case manager will attempt to facilitate a settlement between the parties by clarifying the claim, providing facilitated mediation, and asking the parties to exchange evidence. If the dispute is not resolved during facilitation, the case manager will help prepare the parties for the tribunal decision process.

If parties do not resolve the claim during the case management phase, the claim will proceed by tribunal hearing (''CRTA'', s 30). If a party to a dispute fails to comply with an order or direction of the tribunal made during the case management phase, the case manager may (after giving notice to the non-compliant party) refer the dispute to the tribunal for resolution, where the tribunal will: (a) proceed to hear the dispute; (b) make an order dismissing a claim in the dispute that is made by the non-compliant party; or (c) refuse to resolve a claim of the non-compliant party or refuse to resolve the dispute (''CRTA'', s 36).

The CRT takes an active role in the dispute resolution process and ensuring the claim is resolved in a timely manner. Parties must ensure they respond promptly during the CRT process. If a party fails to respond to communications with the case manager, the tribunal may decide the claim without their participation.

The tribunal retains the authority to refuse to resolve a claim or dispute and may exercise this authority at any point before making a final decision resolving the dispute. The general authority for refusing to resolve a claim or dispute is set out in Civil Resolution Tribunal Act s 11.

==== a) Applying for Dispute Resolution ====

To request dispute resolution by the tribunal an applicant must provide to the tribunal a completed Dispute Application Form, and pay the required fee.

:'''NOTE:''' Parties drafting an application to the CRT should review the guidelines set out in '''Section V.C: Identifying the Defendant(s)''' for advice regarding what information should be included.

===== (1) Application Costs and Where to Apply =====
Applications may be made online or a paper application form can be found online at https://civilresolutionbc.ca/resources/forms/#apply-for-crt-dispute-resolution. Fees vary slightly by the method of application. The cost to apply for dispute resolution online is $75-125, while the cost by paper application is $100-150.

If you are using a paper application, it may be sent to the CRT by mail: 

:PO Box 9239 Stn Prov Govt 
:Victoria, BC V8W 9J1

===== (2) After an Application is Received =====
After an initial review of the Dispute Application Form, the tribunal will provide to the applicant one of the following:
:(a) a request for more information about the application;
:(b) a Dispute Notice with instructions; or
:(c) an explanation as to why the Dispute Notice will not be issued

Once a Dispute Notice is issued by the tribunal, they will serve it on the respondent if:
:(a)the applicant has provided the name and address information required for service by ordinary mail,
:(b)the mailing address for the respondent is in Canada, and
:(c)the respondent is a person, corporation, strata corporation, partnership, society, co-operative association or municipality.

===== (3) Serving the Respondents =====
The CRT usually tries to serve respondents by regular mail. If the tribunal advises the applicant that they must serve the Dispute Notice and instructions for response, the applicant must:
:(a) serve the Dispute Notice and instructions for response on every respondent named in the dispute and not served by the tribunal within 90 days from the day the Dispute Notice is issued by the tribunal,
:(b) complete the Proof of Service Form and provide it to the tribunal within 90 days from the day the Dispute Notice is issued by the tribunal, and
:(c) provide any other information or evidence about the Dispute Notice or service process requested by the tribunal

A Dispute Notice can be served on a respondent by e-mail, registered mail requiring signature, courier delivery requiring a signature, or personal delivery. Notice by e-mail is acceptable proof that the notice requirements are met only if the respondent replies to the email, contacts the CRT about the dispute, or confirms receipt of the Dispute Notice in some other way. Additional rules regarding notice delivery can be found here: https://civilresolutionbc.ca/help/how-do-i-serve-a-dispute-notice/.

If you have unsuccessfully tried to deliver a Dispute Notice to a respondent, you should contact the CRT to request an alternative method of delivery.

==== b) Permitted Methods of Service ====

===== (1) Individual Under 19 Years Old =====
The applicant must provide the Dispute Notice (by any above method) to that respondent’s parent or guardian unless the tribunal orders otherwise.

===== (2) Individuals Over 19 Years Old with Impaired Mental Capacity =====
If an applicant knows that a respondent has a committee of estate, a representative appointed in a representation agreement, or an attorney appointed in an enduring power of attorney, the applicant must provide the Dispute Notice to that person

An applicant must also provide the Dispute Notice to the respondent or the person with whom the respondent normally resides, and the Public Guardian and Trustee.

===== (3) Companies defined by the ''Business Corporations Act'' =====
An applicant can serve these parties by the following methods:
*by registered mail requiring signature, courier delivery requiring a signature or delivery in person to the address shown for the registered office with the Registrar of Companies;
*by delivery in person at the place of business of the company, to a receptionist or a person who appears to manage or control the company’s business there;
*by delivery in person to a director, officer, liquidator, trustee in bankruptcy or receiver-manager of the company (''Business Corporations Act'', SBC 2002, c 57).

===== (4) Extraprovincial Corporation defined by the ''Business Corporations Act'' =====
An applicant can serve these parties by the following methods:
*by registered mail requiring signature, courier delivery requiring a signature or delivery in person to the address shown for the head office in the office of the Registrar of Companies if that head office is in British Columbia;
*by registered mail requiring a signature, courier delivery requiring a signature or delivery in person to the address shown in the office of the Registrar of Companies for any attorney appointed for the extraprovincial company; by delivery in person to the place of business of the extraprovincial company, to a receptionist or a person who appears to manage or control the company’s business there;
*by delivery in person to a director, officer, liquidator, trustee in bankruptcy or receiver-manager of the extraprovincial company. ''(Business Corporations Act, SBC 2002, c57)''

===== (5) Society incorporated under the ''Societies Act'' =====
An applicant can serve these parties by the following methods:
*by registered mail requiring signature, courier delivery requiring a signature or delivery in person to the address for service with the Registrar of Companies;
*by delivery in person to a director, officer, receiver manager or liquidator of the society (''Societies Act'', SBC 2015, c. 18, s 252).

===== (6) Partnerships =====
An applicant can serve these parties by the following methods:
*by registered mail requiring signature, courier delivery requiring a signature or delivery in person to a partner;
*by delivery in person to the partnership’s place of business, to a receptionist or to a person who appears to manage or control the partnership’s business there.

===== (7) Any Other Type of Party =====
Follow the directions provided by the Tribunal.

===== (8) ICBC (Motor Vehicle Accident-Related Claims) =====
An applicant must also provide the Dispute Notice to the Insurance Corporation of British Columbia (ICBC) by:
*sending a copy of the Dispute Notice by registered mail requiring signature or courier to 800 – 808 Nelson Street, Vancouver, BC V6Z 2H1; or,
*delivering a copy of the Dispute Notice in person to an employee at any ICBC claim centre.

==== c) Negotiation and Facilitation ====

The purpose of the case management phase is to facilitate an agreement between the parties and to prepare for the tribunal hearing should it be required. The Preparation for Tribunal Hearing phase may be conducted at the same time as the Facilitated Dispute Resolution phase.

A case manager will determine which processes are appropriate for a particular dispute and has the authority to require the parties to participate. They can adjust or modify the facilitation directions at any time during facilitation. Negotiation and facilitation may be conducted in writing, by telephone, via videoconferencing, via email, via other electronic communication tools, or a combination of these methods. These negotiations will be mediated by the case manager.

The case manager can direct any party in a dispute to provide to the tribunal and to every other party any information and evidence, including explanations of that information or evidence, information about a party’s ability to pay an amount reached by agreement or ordered by the tribunal, responses to another party’s information and communications, and that party’s position on any proposed resolution of a claim in the dispute. During facilitation, the facilitator can refer any matter requiring a decision or order to a tribunal member, including a party’s non-compliance with directions. The information shared during facilitated mediation is confidential and is generally not allowed to be included in the Tribunal Decision Plan, unless it is relevant evidence that would be disclosed in any event.

If the parties reach a resolution by agreement on any or all of the claims in their dispute, they can ask the tribunal to make a consent resolution order to make the terms of their agreement an order of the tribunal, and pay the required fee. If the parties agree to resolve some, but not all, claims by agreement, the case manager can record their draft agreement based on the terms agreed upon by the parties, and provide a draft consent resolution order to a tribunal member immediately, or along with the Tribunal Decision Plan.

If the case manager decides the parties cannot resolve their dispute by agreement, they will inform the parties that activities aimed at finding a resolution by agreement are over and ask the applicant to pay the tribunal decision fee. If the applicant does not pay the tribunal decision fee, a respondent can pay it. If no party pays the tribunal decision fee within the time period set by the case manager, the tribunal may refuse to resolve or dismiss the dispute. If a party pays the tribunal decision fee, the process to prepare the dispute for a tribunal decision will begin.

== F. Preparation for Tribunal Hearing ==

If the negotiation and facilitation process does not result in a settlement, the case manager will assist the parties in preparing for adjudication by ensuring the parties understand each other’s positions and by directing the exchange of evidence. Generally, this exchange and communication will occur online. To prepare the dispute for a tribunal decision, the case manager can support the parties in identifying and narrowing the claims or issues that will be decided in the tribunal decision process, identifying the facts relevant to resolving the claims or issues in the tribunal decision process, and taking any other steps to prepare for the tribunal decision process.

As well, the case manager will give the parties a Tribunal Decision Plan, which sets out required information, steps, and timelines to prepare the dispute for the tribunal decision process. Parties must include in the Tribunal Decision Plan all relevant evidence they possess regarding their claim, including evidence that does not support their position (''CRTR'', Rule 8.1(1)). Common kinds of evidence include photos or videos, contracts, correspondence regarding the dispute, and statements from witnesses or experts. All evidence and materials relied on must be translated into English (''CRTR'', Rule 1.7(5)). More information about evidence can be found at https://civilresolutionbc.ca/help/what-is-evidence. In particular, the CRT has specific rules regarding expert evidence. See [[Small_Claims_Trial_Preparation_(20:XIII)|Section XIII.B.: Expert Witnesses]].

For motor vehicle injury claims, pertinent medical information should also be provided. Note that for this class of dispute there are limits on both the amount of expert evidence that can be submitted and the amount of money that the CRT can order one party to reimburse another for fees and expenses. A party wishing to adduce expert evidence to support a motor vehicle injury claim should consult https://civilresolutionbc.ca/blog/expert-evidence-and-expenses-in-mva-personal-injury-disputes for more information. For strata disputes, copies of strata meeting minutes and any complaint letters and/or bylaw infraction letters should be included in the Tribunal Decision Plan.

Once the case manager has given the Tribunal Decision Plan to the parties, they cannot add any other party or claim without permission from the tribunal. The tribunal may at any time order that a party be added to the dispute and make directions as to the process to be followed.

If a party does not comply with the Tribunal Decision Plan the tribunal may do any of the following:
:(a) the tribunal can decide the dispute relying only on the information and evidence that was provided in compliance with the Tribunal Decision Plan;
:(b) the tribunal can dismiss the claims brought by a party that did not comply with the Tribunal Decision Plan; and
:(c) the tribunal can require the non-complying party to pay to another party any fees and other reasonable expenses that arose as a result of a party’s non-compliance with the Tribunal Decision Plan.

Facilitation ends when the case manager determines that the Tribunal Decision Plan is complete.

== G. Drafting the Notice of Claim ==

The Notice of Claim is the document that starts an action in Small Claims Court. The Notice of Claim form is comprised of several sections and each section must be completed. The form can be either typed or handwritten. Hard copies are available from the court registry (see [[Small_Claims_Registries_(20:App_A)|Appendix A: Small Claims Registries]]) and an electronic copy is available online at http://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms.

Where possible, a claimant should type the Notice of Claim form. You can use the Small Claims Filing Assistant to complete a claim online which may then be printed and submitted in person or by mail:https://justice.gov.bc.ca/FilingAssistant/index.do.

A sample Notice of Claim (see [[Sample_Notice_of_Claim_for_Small_Claims_(20:App_C)|Appendix C: Sample Notice of Claim]]) is attached and may be a helpful guideline when drafting a Notice of Claim.

=== 1. “From” ===

This section must contain the claimant’s full legal name, address, and telephone number. The claimant has an ongoing duty to notify the court registry of any changes to the information in this section. Failure to provide the registry with current and accurate contact information may result in the claimant’s claim being dismissed and/or the claimant being liable for costs or penalties.

=== 2. “To” ===

The claimant must list the full legal name, address for service, and, if available, the telephone number for each defendant. If additional space is required, the claimant may attach a piece of paper listing this information for each defendant. Alternatively, the Notice of Claim filing assistant (visit https://justice.gov.bc.ca/FilingAssistant/) can neatly add multiple defendants onto one Notice of Claim form.

Failure to list the proper legal name of a defendant may result in the claimant’s claim against that defendant being dismissed or the judgment against that defendant being unenforceable. If the limitation period has already expired, the claimant may not be able to correct the error (see [[Limitation_Periods_(20:App_F) | Appendix F: Limitation Periods]]).

If you are suing a corporation, the corporation’s registered name must be listed here. This registered name can be found by completing a company search. A copy of the company search must be included when filing the notice of claim. See [[Governing_Legislation_and_Resources_for_Small_Claims_(20:II)|Section II: 4. Other Resources]] for how to complete a company search.

=== 3. “What Happened?” ===

In this section, the claimant must list the facts that support the claimant’s cause(s) of action and the damages that the claimant has suffered. The claimant should adhere to the following general rules:

# Don’t plead evidence – state what you will prove, not how you will prove it
# Don’t plead law – unless you have a statutory cause of action
# Use paragraphs – use one paragraph to state each fact that you will prove - Number each paragraph beginning at 1
# Claimant must prove every fact – therefore, stick to material facts (see below)

In this section, one must set out the facts that give rise to the cause of action, and the loss or damage that resulted. This description should be brief but must inform the opposing party of the case to be met and give the judge an outline of what will be argued. A material fact is one that, if established, could affect the outcome of the proceedings. For examples, in the sample Notice of Claim in Appendix C, paragraphs 1-3 detail facts that go towards the existence and terms of the contract. Paragraphs 4-6 detail facts that go towards the claimant's performance of the contract and the defendant’s failure to perform. The Notice of Claim (Form 1) has little space for the facts, but the facts can continue onto another piece of paper. The additional facts must be attached to each copy of the Notice of Claim. In general, the pleadings should be brief, complete, and as accurate as possible.

The facts as alleged must give rise to a legal cause of action. For example, if the legal cause of action is a breach of contract: the claimant must show in the facts the existence of the contract, the specific term alleged to have been breached, and the acts of the defendant that constitute that breach. After the facts, state the legal cause of action(s) that entitle you to the relief you are seeking. If there is more than one cause of action, plead the strongest one and plead the other ones in the alternative. For example, in a claim for a bad car repair, a claimant can sue for breach of contract and negligence. A pleading might read: “In addition, or in the alternative, the claimant claims damages as a result of the defendant’s negligent repair of the automobile”.

The pleadings should describe:

:(a) the relationship of the parties (e.g., buyer and seller); and
:(b) the dates, places, and details of amounts, services, or practices involved.

Claimants will usually be bound by the facts in the pleadings. If the facts or legal basis need to be changed, the claimant may be able to amend the Notice of Claim (''SCR'', Rule 8).

When there is more than one defendant, the claimant should make it clear whether their liability is joint, several, or joint and several. This distinction affects the enforcement of a judgment and any subsequent actions arising out of the same cause. Liability is stated as joint and several is more inclusive.

If liability is joint, the defendants must be sued as a group however the claimant can recover the full amount from any or all of the defendants.

Where liability is several, the claimant can sue any or all of the defendants however each defendant is obligated to repay only their own portion of the debt.

Where liability is joint and several, the claimant may sue any or all of the defendants and may recover the full amount from any or all of the defendants. The debtors can then litigate among themselves to apportion the debt between them.

=== 4. “Where?” ===

The claimant should enter the name of the municipality as well as the province where the cause of action arose. If the cause of action arose outside of British Columbia, the claimant must state in the “What Happened?” section how the court has jurisdiction over the claim (''[https://www.canlii.org/en/bc/bcpc/doc/2011/2011bcpc459/2011bcpc459.html?searchUrlHash=AAAAAQAJZHJlYW1iYW5rAAAAAAE&resultIndex=1 Dreambank]'', supra.)

=== 5. “When?” ===

List the date or dates when the cause(s) of action arose. Unless the date is very clear or the limitation period is about to expire, stating the month and year is sufficient. It is prudent to state the date as follows:

* when the date is known: “On or about August 15, 2012”;
* if only the month is known: “In or about August 2012”; or
* if the cause(s) of action arose over time: “From about May 2012 to August 2012”.

=== 6. “How Much?” ===

This is where the claimant describes the remedy. In most cases, this will be an amount of money. However, a claimant may request an alternative remedy. For example, the claimant could request the return of an item or, in the alternative, the value of it, as well as damages. A claimant who wants items returned should consider what condition they will be in and whether they really want them back.

==== a) Interest ====

If there is no mention of interest in a contract between the parties, the court will award interest to the successful claimant from the date the cause of action arose until the date of judgment (''Court Order Interest Act'', RSBC 1996, c 79, s 1(1); [https://d.docs.live.net/326725c1a74ed67f/UBC/LSLAP/Red%20Back%20Mining%20Inc%20v%20Geyser%20Ltd,%202006%20BCSC%201880 ''Red Back Mining Inc v Geyser Ltd.'', 2006 BCSC 1880]). This is called “pre-judgment interest”. Interest in a claim for debt is calculated from the date the debt became due and, in a claim for damages, from the date the damages arose.

The court sets the interest rate every six months and publishes a table listing the rates applicable to each six-month period. The Notice of Claim should indicate a claim for “Interest pursuant to the ''Court Order Interest Act''” but leave the amount area blank; the registry will calculate the amount according to the table.

:'''Note:''' While a claimant may be paying a higher interest rate on a credit card or loan as a result of the defendant’s actions, the claimant is limited to the pre-judgment interest rate set by the court unless the parties have expressly agreed that interest will be paid.

If the parties have agreed on a rate of interest, the Notice of Claim should indicate a claim for contract interest, the applicable interest rate, and the date from which the interest began to accrue. The amount of interest that has accrued up to the date of filing should be included on the Notice of Claim as well as the amount of interest that accrues each day. It is important to note that a claim for contract interest is, in substance, a claim for contractual damages. Accordingly, the claim for contract interest together with the principal amount must be within the Small Claims Court’s monetary jurisdiction. If a claim for contract interest has or could cause the total claim to exceed the court’s monetary jurisdiction, it would be prudent to state on the Notice of Claim that the claimant abandons the amount necessary to bring the claim within the Small Claims Court’s monetary jurisdiction.

If the parties have agreed that interest will be paid but have not agreed on a rate of interest, the rate of interest is five percent per annum (''Interest Act'', RSC 1985, c I-15, s 3).

Generally, even if the parties agree to a rate of interest expressed with reference to a period other than one year (e.g., 2% per month), a claimant can only recover a maximum of five percent per annum unless the contract expressly states a yearly rate or percentage of interest that is equivalent to the other rate (e.g., 24% per annum) (''Interest Act'', RSC 1985, c I-15, s 4).

It is a criminal offence to receive, or enter into an agreement to pay or receive, interest at a rate that exceeds 60% per annum (''Criminal Code'', RSC 1985, c C-46, s 347(1)). Interest has a broad definition and includes fees, fines, penalties, commissions, and other similar charges including costs relating to advancing credit.

If the judgment is not paid immediately, post-judgment interest may be awarded. The court has the discretion to vary the rate of interest or to set a different date from which the interest commences (''Court Order Interest Act'', RSBC 1996, c 79, s 8).

==== b) Claims between $5,001-$35,000 ====

In order to sue in Small Claims Court for a claim exceeding $35,000, the claimant must state, “The Claimant abandons the portion of any net judgment that exceeds $35,000” (''SCR'', Rules 1(4) and (5)). At any time prior to trial, the claimant can decide to sue for the full amount and apply to transfer the claim to the Supreme Court of British Columbia (''Der v Giles'', 2003 BCSC 623). Once the trial has been heard, however, the abandonment is likely permanent.

There is an exception to the $35,000 limit. If more than one claimant has filed a Notice of Claim against the same defendant(s) concerning the same event, or, if one claimant has filed Notices of Claim against more than one defendant concerning the same event, the judge may decide each claim separately, even though the total of all the claims (not including interest and expenses) exceeds $35,000 (''SCR'', Rule 7.1(4)). Such claims often have a trial at the same time although the claimant(s) must request this.

===== (1) Filing Fees =====

Filing fees are those fees paid to file the Notice of Claim and are either $100 or $156 unless the fees have been waived (''BC Reg.'' 261/93, s 1). Payments can be made with cash, debit card, cheque (including certified cheque), money order, or bank draft. Cheques and money orders should be payable to the Minister of Finance. The registry staff will enter this amount. Filing fees are recoverable if the claimant is successful (see [[Small_Claims_Court_Fees_(20:App_H)|Appendix H: Small Claims Court Fees]]).

Please note that fees for the CRT are different (see [[Civil_Resolution_Tribunal_Fees_(20:App_I)|Appendix I: Civil Resolution Tribunal Fees]]).

===== (2) Service Fees =====

Service fees are an estimate of the cost of serving the defendant(s). The amount varies based on the method of service and the number of defendants. For information about the costs, refer to sections 15 and 16 of the ''Court Rules Act'' and ''Small Claims Act''. The registry staff will enter this amount. Service fees are recoverable if the claimant is successful; however, as the claimed amount is only an estimate, a judge has discretion to either increase or decrease the allowed service fees.

===== (3) Other Expenses =====

Unless a judge or the Registrar orders otherwise, an unsuccessful party '''must''' pay to the successful party (Rule 20(2)):

* any fees the successful party paid for filing any documents;
* reasonable amounts the successful party paid for serving any documents (Rule 20(2); and
* any other reasonable charges or expenses directly related to the proceedings (Rule 20(2); ''Barry v Rouleau'', [1994] BCJ No. 1212 (QL) (Prov Ct); ''Gaudet v Mair'', [1996] BCJ No. 2547 (QL) (Prov Ct); [https://www.canlii.org/en/bc/bcpc/doc/2004/2004bcpc511/2004bcpc511.html?searchUrlHash=AAAAAQAhSm9obnN0b24gdi4gTW9ycmlzLCAyMDA0IEJDUEMgNTExAAAAAAE&resultIndex=1 ''Johnston v. Morris et al.'', 2004 BCPC 511]).

An example of a reasonable expense related to the proceedings is a company search. Another example is costs to purchase cases used in argument ([http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=24429 ''Faulkner v Sellars'' (1998), 9 CCLI (3d) 247 (BC Prov Ct)]). If such expenses are known at the time of filing, they should be stated on the Notice of Claim. If they occur afterward, the successful party may request them at the conclusion of the trial.

Although legal fees '''cannot''' be recovered, legal disbursements may be recoverable if they fit one of the criteria above.

Parties are not compensated for the time they spend preparing for or attending court.

== H. Filing a Notice of Claim ==

=== 1. Cost ===

The cost to file a notice of claim is $100 if the claim is for $3,000 or less. The cost increases to $156 for claims above $3,000 and up to $35,000. A person who is unable to afford the filing or other fees may apply to the registrar for a fee waiver (''SCR'', Rule 20(1)) by filing an Application to the Registrar and a Statement of Finances. See [[Small_Claims_Court_Fees_(20:App_H)|Appendix H: Small Claims Court Fees]].

=== 2. Where to File ===

A claimant must file the notice of claim (''SCR'', Rule 1(2)) at the Small Claims registry (see [[Small_Claims_Registries_(20:App_A)|Appendix A: Small Claims Registries]]) nearest to where:

*the defendant lives or carries on a business (''[http://canlii.ca/t/frv57 DreamBank]''; or
*the transaction or event that resulted in the claim took place.

This can sometimes be unclear in the case of contracts that are executed by fax or email or in other claims, such as negligence, where the conduct complained of took place in a number of locations; see ''[http://canlii.ca/t/frv57 DreamBank]''; [http://canlii.ca/t/1w8rg ''Rudder v Microsoft Corp.'', [1999<nowiki>]</nowiki> 47 CCLT (2d) 168 (ON SC)]; [http://canlii.ca/t/23chv ''Simpson-Sears Ltd. v. Marshall'' (1979), 12 BCLR 244 (SC))]. A claimant may wish to obtain legal advice if there is any uncertainty regarding where to file.

If two different Small Claims registries have jurisdiction, the claimant should choose the one that is most convenient. If the defendant disputes the claimant’s choice, the defendant can file an application for change of venue and a judge will decide the most appropriate location.

A company can live in multiple locations including where it is registered, where it carries on business, and where its records are kept ([http://canlii.ca/t/frv57 ''DreamBank''], supra; ''Court Jurisdiction and Proceedings Transfer Act'', SBC 2003, c 28, s7).

=== 3. How to File ===

The claimant must file at least four complete and identical copies of the notice of claim. One copy is for the court, one is for the claimant, one is a service copy, and one is required for '''each''' defendant.

Once the notice of claim has been filed and stamped by the registry and the fee unless waived, has been paid, the claimant must, within one year, serve a copy on the defendant.

== I. Serving a Notice of Claim ==

A copy of the filed Notice of Claim together with a blank Reply form (available from the registry) must be served on each defendant (''SCR'', Rule 2(1)). A claimant has 12 months from the date of filing to serve the defendants (''SCR'', Rule 2(7)). If more time is required, the claimant can apply to the registrar for an extension (''SCR'', Rules 2(7), 16(2)(a), and 16(3)).
The permissible methods for serving a defendant depend on who the defendant is. The table below sets out how each category of defendant can be served. If a defendant is evading service or, after a diligent search, cannot be found, a claimant may apply to a judge for an order for substitutional service.

{| class="wikitable"
|-
! Defendant !! Permitted Methods of Service
|-
| Individual Over 19 Years Old ||
*Personal service
*Registered mail requiring signature to residence (''SCR'', Rule 2(2))
|-
| Individual Under 19 Years Old ||
*Personal service on the minor’s mother, father, or guardian
*Personal service on another person as directed by a judge upon application(''SCR'', Rules 2(6) and 18(2))
|-
| Individual outside BC ||
*See “Individual Over 19 Years Old” or “Individual Under 19 Years Old”
*Defendant has 30 days to respond (''SCR'', Rule 3(4)))
|-
| BC Corporation ||
*Leaving a copy at the '''delivery address''' for the registered office
*Registered mail requiring signature to the '''mailing address''' for the registered office
*Personal service on a receptionist or manager at the company’s place of business
*Personal service on a director, officer, liquidator, trustee in bankruptcy, or receiver manager
*If the company’s registered office has been eliminated, as directed by a judge on application (''SCR'', Rule 2(3))
|-
| Extraprovincial Corporation || See ''SCR'', Rule 2(4)
|-
| Unincorporated Company (Proprietorship) ||
*Personal service on proprietor
*Registered mail requiring signature to proprietor’s residence (''SCR'', Rule 2(2))
|-
| Unincorporated Company (Partnership) ||
*Personal service on a partner
*Personal service on a receptionist or manager at the place of business
*Registered mail requiring signature to a partner’s residence (''SCR'', Rule 2(5))
|-
| Company outside BC || See ''SCR'', Rule 18(6.1)
|-
| Strata Corporation ||
*Personal service on a council member
*Registered mail requiring signature to its most recent mailing address on file in the Land Title Office (''Strata Property Act'', SBC 1998, c 43, s 64)
|-
| Society ||
*Personal service on anyone at the address for service
*Personal service on a director, officer, receiver manager, or liquidator
*Registered mail requiring signature to the address for service (''Societies Act'', SBC 2015, c 18; ''SCR'', Rule 18(3))
|-
| Unincorporated Association ||
*Personal service on an officer
*Registered mail requiring signature to the registered office (''SCR'', Rule 18(5))
|-
| Incorporated Cooperative Association, Housing Cooperative, Community Service Cooperative ||
* Personal service or by registered mail requiring signature to the registered office of the association (''Cooperative Association Act'', SBC 1999, c 28, s 28)
|-
| Trade Union ||
*Leaving with the business agent (''SCR'', Rule 18(5))
|-
| Municipality ||
*Personal service on the Clerk, Deputy Clerk, or similar official (''SCR'', Rule 18(1))
|-
| ICBC ||
*Personal service on a receptionist at 800 – 808 Nelson Street, Vancouver, BC V6Z 2L5
|-
| Estate ||
*Personal service on the administrator, executor, or executrix
*Registered mail to the residence of the administrator, executor, or executrix (''Wills Estate and Succession Act'', SBC 2009, c13, s 61(1))
|}

If a defendant is served incorrectly, a claimant cannot obtain a default order until after the defendant has been properly served. If the defendant has been served incorrectly but files a Reply, the claimant does not have to serve the defendant again.

=== 1. Personal Service ===

Personal service is effected when the claimant gives the Notice of Claim and blank reply form to the defendant in a manner that ensures that the nature of the document is brought to the defendant’s attention. For example, a notice of claim inside an unmarked and sealed envelope or rolled inside of a newspaper is not properly served.

If a defendant knows the nature of the document and has touched it, service has likely been affected. If the defendant knows of the nature of the document and refuses to touch it, the claimant may place it at the defendant’s feet.

Personal service can be affected by any adult who is not under a legal disability. A claimant may wish to have a friend or a process server serve the Notice of Claim.

:'''NOTE''': Personal service should not be used as a means of intimidating or exacting revenge on a defendant. While it may seem satisfying to personally serve the defendant, alternative methods should be employed if there is a risk of a heated exchange. Such an exchange may lead to physical violence and, in any event, negative encounters in the course of the litigation will be counterproductive to settlement discussions.

=== 2. Registered Mail ===

Registered mail is a service offered by Canada Post. In order to prove that a document was served by registered mail, a party must either obtain a copy of the signature obtained by Canada Post at the time of delivery or obtain a printout of the delivery confirmation from http://www.canadapost.ca.

=== 3. Substitutional (Alternate) Service ===

When, after a diligent search, a claimant is unable to locate the defendant or the defendant is evading service, the claimant can apply to the registrar (''SCR'', Rule 16(3)) for permission to serve the defendant in another manner (''SCR'', Rules 16(2)(e) and 18(8)). An affidavit and a hearing are not required.

The alternate method of service that is ordered should be sufficient to bring the claim to the defendant’s attention. Suggested methods of alternate service include a Facebook message, email, facsimile, regular mail, and text message to all known addresses and phone numbers for the defendant. Other methods include posting the Notice of Claim on the defendant’s door. The claimant should seek an order requiring service in as many methods as will be reasonably necessary to make the defendant aware of the claim.

== J. Amending a Notice of Claim ==

Anything in a Notice of Claim, reply or another document that has been filed by a party may be changed by that party (a) without any permission, before a settlement conference, mediation, trial conference, or trial, whichever comes ''first''; or (b) with the permission of a judge (''SCR'', Rule 8(1)). If permission of a judge is required, the applicant must complete an application form (Form 16), follow the instructions on the form, and file it at the registry with the amended document (''SCR'', Rule 8).

If a Notice of Claim or Reply is being amended, changes must be underlined, initialled, and dated on the revised document and, if there is an order authorizing the change, the document must contain a reference to it (''SCR'', Rule 8(2)). The document must then be filed at the registry and served again on each party to the claim before any further steps are made in the claim. The other party may then change their reply through the same process if they choose, or they may rely on their original reply.

A party wishing to withdraw their claim or other filed document may do so at any time before a judgement has been rendered or formal acceptance of offer has been filed, by filing a copy of a notice of withdrawal at the registry and serving the notice on the parties that were served with the document that is being withdrawn (''SCR'', Rule 8(4)).

== K. Proof of Service ==

Once the defendant has been served, the claimant can complete a Certificate of Service and file it along with the service copy of the Notice of Claim. Find Form 4 at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms. If there are multiple defendants, the claimant should file a Certificate of Service and service copy of the Notice of Claim for each defendant. Other methods of written proof of service are available (''SCR'', Rule 18(14)). Rarely, a judge may allow sworn oral evidence of personal service (''SCR'', Rule 18(15)).

If the defendant files a reply, it is assumed that the claimant served the claim and therefore the claimant is not required to file a Certificate of Service. Therefore, if the claimant expects the defendant to reply there is no need to immediately file a Certificate of Service. If the defendant does not reply, a Certificate of Service must be filed before seeking a default judgement.

{{LSLAP Manual Navbox|type=chapters15-23}}

Choosing the Proper Forum for Small Claims (20:IV)

2023-09-19T18:16:43Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

There are several options for resolving most civil disputes in British Columbia: Alternative Dispute Resolution, specialised tribunals, Small Claims Court, the Civil Resolution Tribunal and the Supreme Court of British Columbia.

Certain claims must be made through administrative tribunals instead of the courts. See, for example, '''Section IV.C: Civil Resolution Tribunal''' for small claims matters under $5,000, including certain types of disputes between roomates, certain motor vehicle injury disputes, and strata matters, '''Chapter 6: Human Rights''' for human rights claims proceeding through the Human Rights Tribunal, '''Chapter 7: Workers’ Compensation''' for workers’ compensation claims proceeding through the Workers’ Compensation Board, '''Chapter 8: Employment Insurance''' for EI matters proceeding through the Social Security Tribunal, '''Chapter 9: Employment Law''' for employment law related matters proceeding through the Employment Standards Branch, and '''Chapter 19: Landlord and Tenant Law''' for tenancy matters proceeding through the Residential Tenancy Branch.

In order to bring a claim in British Columbia, the court or tribunal must have territorial jurisdiction. If either the subject matter of the claim (e.g., the contract or wrongful act) occurred in British Columbia or the Defendant resides or does business in British Columbia, this may be a sufficient connection for a court or tribunal to assert jurisdiction. It is sometimes unclear whether British Columbia has a sufficient connection to the claim and is the most appropriate forum. If the court’s jurisdiction is not clear, a claimant should obtain legal advice and review applicable case law; see [https://canlii.ca/t/jpkt8 ''Douez v. Facebook, Inc.'', 2022 BCSC 914].

Where the dispute is contractual, the existence of a “forum selection clause” may provide further jurisdictional difficulties. Forum selection clauses require the adjudication of claims in the named jurisdiction. Such clauses will generally be upheld absent a finding of “strong cause” to hear the matter in the jurisdiction of another court; see [http://canlii.ca/t/1r9xl ''Borgstrom v Korean Air Lines Co. Ltd.'', 2007 BCCA 263]; [http://canlii.ca/t/1std6 ''Procon Mining & Tunnelling Ltd. v McNeil'', 2007 BCCA 438]). However, where a “forum selection clause” requires arbitration that would be practically inaccessible for reasons of cost or geography, a court may declare the clause invalid and adjudicate the claim ([http://canlii.ca/t/j8dvf ''Uber Technologies Inc v Heller'', 2020 SCC 16]).

== A. Small Claims Court ==

The Small Claims Court is the civil division of the British Columbia Provincial Court and is designed to accommodate unrepresented parties who do not have legal training. The overriding purpose of the Small Claims Court is to resolve disputes in a “just, speedy, inexpensive, and simple manner” (''SCA'', s 2). The Court uses simplified forms, procedures, and rules and encourages settlement.

Small Claims Court is a formal court that applies the law. Although the procedures and rules of evidence are slightly relaxed in order to make it more accessible to the public, it is significantly more formal and principled than the courts portrayed in television programs.

There are three primary considerations when choosing Small Claims Court: the amount claimed, the court’s jurisdiction, and costs.

=== 1. Amount Claimed ===

'''As of June 1, 2017, Small Claims Court can award a judgment of up to $35,000'''. A person whose claim exceeds $35,000 may still choose Small Claims Court but must expressly state in the notice of claim or counterclaim that they will abandon the amount necessary to bring their claim or counterclaim within the court’s jurisdiction (SCR, Rules 1(4) and 1(5)). Interest and costs are not included in calculating the $35,000 limit.

A claimant must sue all responsible parties for damages arising from a single event in '''one''' claim; the claimant cannot split claims for damages arising out of a single event into multiple claims in an attempt to circumvent the $35,000 limit. If, however, there are multiple events giving rise to a claim, even if closely related, they may be brought in separate actions ([https://decisions.civilresolutionbc.ca/crt/crtd/en/item/365284/index.do ''De Bayer v. Yang'', 2019 BCCRT 298]). For example, if a contractor issues an invoice for $20,000 at the end of January for work done in January and issues another invoice for $20,000 at the end of February for work done in February and both invoices go unpaid, the contractor may sue on each invoice in a separate claim. Rule 7.1(4) permits certain related claims to be heard together.

Where a defendant has pleaded a set-off (the plaintiff owes the defendant money that should be deducted from their award), contributory negligence (the plaintiff’s negligence also contributed to their loss), or shared liability (there is another party who is also liable for the same action), the court may consider these defences against the full amount of the claimant’s claim provided that the net judgment does not exceed $35,000. This also applies when a set-off forms the basis for a standalone counterclaim. For example, if the claimant proves a $50,000 claim and the defendant establishes a $35,000 set-off, the claimant will have a net judgment of $15,000.

Section 21(2) of the ''Small Claims Act'' permits the monetary limit to be set by regulation at any amount up to $50,000. Claimants should confirm the current monetary limit prior to filing a claim.

=== 2. Jurisdiction ===

The Small Claims Court derives its authority from the SCA, the ''Small Claims Rules'', BC Reg 261/93 [SCR], and other acts that expressly confer jurisdiction upon the Provincial Court.

The court has express jurisdiction in claims for:
* debt or damages;
* recovery of personal property;
* specific performance of an agreement relating to personal property or services; or
* relief from opposing claims to personal property(''SCA'', s 3(1)).

The Small Claims Court does not have jurisdiction in claims for libel, slander, or malicious prosecution, according to s 3(2) of the SCA, unless such authority is expressly granted in limited circumstances by another statute (e.g., s 171(3) of the ''Business Practices and Consumer Protection Act'' allows for contraventions of this Act to be heard in Provincial Court even if they involve claims for libel or slander).

The court cannot resolve disputes involving residential tenancy agreements nor can it grant remedies created by statute if there is another dispute resolution mechanism prescribed in the statute. For example, claims for overtime must be claimed through the Employment Standards Branch and not in Small Claims Court. The court has very limited jurisdiction in residential tenancy (''Residential Tenancy Act'', SBC 2002, c 78.), human rights (''Human Rights Code'', RSBC 1996, c 210), and strata property matters. Regarding employment law, the Small Claims Court has jurisdiction over contractual and common law rights.

Other noteworthy areas of law often falling outside the jurisdiction of the Small Claims Division are trusts, wills (i.e., probate), prerogative writs, bankruptcy, and some family law matters. However, the court may have jurisdiction over cases where these areas of law are involved only circumstantially and the essential issues of the case do fall within the court’s jurisdiction. For example, in ''[http://canlii.ca/t/1tt0t AMEX Bank of Canada v Golovatcheva]'', the claimant alleged that the defendant had committed fraud by running up a debt that she knew she would escape by declaring bankruptcy. The Small Claims court exerted jurisdiction over this case as essentially, the case at bar was a claim in debt, not bankruptcy.

The Small Claims Court cannot grant injunctions or declaratory relief; however, subject to the Small Claims Act and Small Claims Rules, the court may make any order or give any direction necessary to achieve the purpose of these statutes.

=== 3. Fees ===

The fee to file a claim depends on the amount being claimed. The filing fee is $100 for claims of $3,000 or less and $156 for claims over $3,000. All Small Claims Court fees are listed in Schedule A of the ''Small Claims Rules''. See '''Appendix H: Small Claim Fees'''.

If a person is unable to afford the court’s fees, they can file an Application to the Registrar (Form 16) together with a Statement of Finances. If accepted, the party will be exempted under Rule 20(1) from paying fees with respect to that court file.

An unsuccessful litigant must, unless a judge or registrar orders otherwise, pay to the successful party:

* any fees the successful party paid for filing any documents;
* reasonable amounts the party paid for serving any documents; and
* any other reasonable charges or expenses that the judge or registrar considers directly related to the conduct of the proceeding ([http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=1120 ''Gaudet v Mair'', [1996<nowiki>]</nowiki> BCJ. No. 2547 (QL) (Prov Ct)]; [http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=24429 ''Faulkner v. Sellars'' (1998), 9 CCLI (3d) 247 (BC Prov Ct)]; [http://canlii.ca/t/1jpxj ''Johnston v. Morris'', 2004 BCPC 511]).

Under no circumstances can any party recover any fees paid to a lawyer with respect to the proceeding: s 19(4) of the ''Small Claims Act''; however, reasonable disbursements charged by a lawyer with respect to the proceeding may be awarded to the successful party.

== B. Supreme Court of British Columbia ==

The Supreme Court has broad jurisdiction. It is not bound by any monetary limits and there are few restrictions on the types of claims that it can hear. The Supreme Court can grant injunctions, conduct judicial reviews, and make new laws.

The Supreme Court is not designed with special regard to lay litigants. Parties without legal training or legal advice may find it much more difficult to navigate than Small Claims Court. There are, however, a number of resources ([[Governing Legislation and Resources for Small Claims (20:II)#4. Other Resources | II.4. Other Resources]]) to help lay litigants bring and defend claims in Supreme Court.

The court fees in Supreme Court are higher than in Small Claims Court; they can be waived, however, for those who cannot afford them.

In Supreme Court, the losing party will often be ordered to pay to the successful party a portion of that party’s reasonable legal costs. Costs are awarded using a tariff system and generally on a party and party basis that usually amounts to about twenty percent of the successful party’s costs. While it is possible for the successful party to be fully indemnified through an award of special costs, also known as solicitor-client costs, this is rare and should not be expected.

== C. Civil Resolution Tribunal ==

The role of the Civil Resolution Tribunal is to encourage the resolution of disputes by agreement between the parties, and if resolution by agreement is not reached, then to resolve the dispute by deciding the claims brought to the tribunal by the parties. For up-to-date information on the Civil Resolution Tribunal, associated legislative changes, and the official rules please visit their website at https://www.civilresolutionbc.ca/.

=== 1. Jurisdiction ===

The CRT has jurisdiction over small claims disputes up to $5,000, strata property matters, certain disputes about motor vehicle accidents and injuries, and disputes involving societies and co-operative associations. The tribunal will not determine if they have jurisdiction over disputes until an application for dispute resolution is submitted and the required fee paid. While jurisdictional issues are screened at the intake stage, a tribunal member retains discretion to determine whether the dispute is within the tribunal’s jurisdiction. Applicants who want to know if their claim is within the tribunal’s jurisdiction before filing a dispute may try using the CRT’s [https://civilresolutionbc.ca/solution-explorer Solution Explorer] or may need to seek legal advice.

Sometimes, disputes may be “hybrids” in that they include strata, co-operative, motor vehicle injury and/or small claims elements. In general, where a dispute has elements of both a small claim or another type of claim (most commonly strata), the CRT will not consider it a small claim. Applicants should consult the CRT to determine whether two separate applications should be made.

==== a) Small Claims Matters ====

The tribunal’s small claims jurisdiction is the same as that of the Small Claims Court, however, while the Small Claims Court can resolve claims between $5,001 and $35,000, the CRT is limited in jurisdiction to resolving small claims disputes of $5,000 or under. If a claim is over $5,000 in total value (including contractual interest), it may be reduced to $5,000 or less in order to make an application for dispute resolution at the CRT but this requires abandoning the amount that is over $5,000. This means that part of the claim is gone and can no longer be claimed at the CRT or anywhere else.

The Civil Resolution Tribunal has jurisdiction over the following types of small claims matters:
* Loans and Debt (e.g. a claim for money loaned to someone and not repaid);
* Contract (e.g. A claim for damages caused by the respondent’s failure to properly complete a contract);
* Personal Injury;
* Personal property (e.g. a claim for damages caused to the applicant’s property or return of personal property);
* Consumer transactions (e.g. a claim for damages for faulty merchandise);
* Insurance Disputes; and
* Some employment.

However, the CRT does not have jurisdiction over claims that
* involve slander, defamation or malicious prosecution (''CRTA'', s 119(a));
* fall within the jurisdiction of other tribunals (i.e., the Residential Tenancy Branch);
* are against the government, or which the government is a party to the dispute (Note: municipalities do not fall within “government” in this context; ''CRTA'', s 119(b)); or
* involve the application of the ''Canadian Charter of Rights and Freedoms''. Note: the CRT does not have jurisdiction over a question of a conflict between the ''Human Rights Code'' and another enactment. The CRT also does not have jurisdiction over constitutional questions (''CRTA'', s 114).

==== b) Strata Property Matters ====

The CRT can resolve a wide variety of disputes between owners and tenants of strata properties and strata corporations but can only help with disputes where the event triggering the dispute happened in BC. Unlike the Small Claims and Motor Vehicle Injury jurisdictions of the CRT, the Strata Property jurisdiction of the CRT has no monetary limit. A person may make a request for tribunal resolution of a claim that concerns:

* the interpretation or application of the ''Strata Property Act'' or regulation, bylaw, or rule under that Act;
* the common property or common assets of the strata corporation;
* the use or enjoyment of a strata lot (Note: Recent CRT cases have concluded that the CRT generally does not have jurisdiction under its Strata Property jurisdiction to resolve neighbour disputes if the claim is based in tort, such as an owner claiming against another owner in nuisance or negligence for noise or water leak. If you have a dispute with another resident in a strata you may wish to seek legal advice);
* unfair or arbitrary enforcement, or non-enforcement, of strata bylaws, such as noise, pets, parking, rentals, and compliance with the ''BC Human Rights Code''; whether the strata corporation has treated an owner or tenant significantly unfairly;
* money owing, including money owing as a fine, under the ''Strata Property Act'' or a regulation, bylaw, or rule under that Act;
* financial responsibility for repairs;
* an action or threatened action by the strata corporation, including the council, in relation to an owner or tenant;
* a decision of the strata corporation, including the council, in relation to an owner or tenant; or
* the exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.

The CRT's ability to resolve the strata disputes listed above is subject to a number of limitations. A person considering tribunal resolution of a claim listed above should review s 122 of the ''Civil Resolution Tribunal Act'' to ensure that the CRT is not prohibited from deciding on the matter.

==== c) Motor Vehicle Injury Matters ====

The CRT has jurisdiction over most vehicle accident claims in British Columbia. In particular, the CRT can resolve disputes regarding accident benefits, minor injury determinations, fault, damages claims up to $50,000, and entitlement to benefits under the Enhanced Care model.

For more information, consult the CRT's [https://civilresolutionbc.ca/solution-explorer Solution Explorer], Chapter 12: Automobile Insurance (ICBC), Chapter 13: Motor Vehicle Law, and ''[https://decisions.civilresolutionbc.ca/crt/crtd/en/item/521692/index.do Dusdal v. ICBC, 2022 BCCRT 602]'' which briefly explains recent changes to motor vehicle accident claims.

==== d) Societies and Cooperative Associations ====

The CRT can adjudicate disputes about BC societies and cooperative associations. Disputes involving other types of cooperatives, unincorporated societies, societies incorporated outside of BC, and “for-profit” societies are outside of the CRT’s jurisdiction.

The ''Societies Act'' governs societies in BC, and the CRT may only take disputes about societies that are incorporated in BC with the BC Corporate Registry (''Societies Act'', SBC 2015, c 18, s 14). A person may make a request for tribunal resolution of a claim that concerns:

* the interpretation or application of the BC Societies Act or a regulation, constitution, or bylaw under that Act, including a request to inspect, or to receive a copy of, a record of a society;
* an action or threatened action by the society or its directors in relation to a member; and
* a decision of the society or its directors in relation to a member.

The foregoing list contains a number of limitations. A person considering tribunal resolution of a claim listed above should review s 130 of the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/12025_01 Civil Resolution Tribunal Act]'' to ensure that a limitation does not deny jurisdiction to the tribunal.

The ''Cooperative Associations Act'' governs cooperative associations in BC, and the CRT may only take disputes about its provincial housing or community service cooperatives (''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/99028_01 Cooperative Association Act'', SBC 1999, c 28, s 159.5]). The Act enables persons to make a request for the tribunal resolution of a claim that concerns:

* Interpreting legislation, regulations, memoranda or rules about cooperatives;
* Ordering a cooperative to provide access to its records;
* Ordering a cooperative to comply with its bylaws or the ''Cooperative Association Act''; and
* the person examining, taking extracts from, receiving a copy of or obtaining the record (''Cooperative Association Act'', SBC 1999, c 28, s 159.5).

The CRT's ability to resolve these disputes is subject to a number of limitations; see s 126 of the ''Civil Resolution Tribunal Act''. For example, claims cannot be made with respect to any matter relating to terminating membership, expelling members, winding up the cooperative association, or appealing decisions made by the Registrar of Companies.

==== e) Non-Consensual Sharing of Intimate Images ====

On March 30, 2023, the BC legislature passed the Intimate Images Protection Act (IIPA). Under its authority, the CRT will be able to resolve claims about the non-consensual sharing of intimate images.

The IIPA is not yet in force. It will be brought into force by regulation, at a date to be determined. Once in force, under this legislation, victims will have potential recourse against both individuals who share or threaten to share victims’ intimate images non-consensually, as well as against technology companies who publish these images. Under the IIPA, a judge or tribunal decision maker can order a technology company to stop distribution and remove an intimate image from its platform. Technology companies in non-compliance with these orders can face penalties.

To obtain such orders, applicants need to show that the image is an intimate image depicting the applicant, and that another person distributed it without their consent.

==== f) Authority to Refuse Dispute ====

The CRT has the discretionary authority to refuse to resolve a claim or dispute that otherwise falls within their jurisdiction (Civil Resolution Tribunal Act, s 11). Some of the more common reasons are:

* The claim or dispute has already been resolved through a legally binding process, or the claim is more appropriate for another legally binding process
* The request for resolution does not disclose a reasonable claim or is an abuse of process
* The claim or dispute is too complex or impractical for the CRT

=== 2. Process ===

Using the tribunal to resolve a dispute within its jurisdiction is mandatory by default. However, if the CRT refuses to resolve a claim it can be brought to another court. A party can also apply to court to be exempted from the CRT. For more information see: https://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters

The tribunal is designed to be more informal, faster, and less expensive than Small Claims Court, and will be conducted primarily using the internet and email. Unlike Small Claims Court, the tribunal generally requires the parties to be self-represented; lawyers are generally not permitted (Civil Resolution Tribunal Act, s 20). There are exceptions to this (see subsections 2 and 3), including where a party is a minor or has impaired capacity, where the rules permit the party to be represented or where the tribunal permits representation because it is in the interests of justice and fairness. If a party wishes to request a representative, they should contact the CRT directly to obtain a Representation Request Form.

In considering a request for permission to be represented by a lawyer or other person, the CRT will consider various factors set under Rule 1.16.

All representatives and helpers must comply with the CRT’s Code of Conduct https://civilresolutionbc.ca/wp-content/uploads/CRT-Code-of-Conduct-Apr-2021.pdf

:'''NOTE:''' Parties may obtain legal assistance and/or advice without submitting a Form, however, their lawyer will not be able to participate directly in the CRT process.

=== 3. General ===

The first step in the CRT process is filing your claim. Fill in the online application form and pay the fee. Afterward, the CRT will issue the respondent a Dispute Notice. Parties may not bring or continue a claim in court more than 28 days after one of the following applicable dates:

* the date the party receives notice of the decision;
* the date of a court order that the CRT not adjudicate a claim; or

The CRT orders are enforceable as an order of the court.

== D. Alternative Dispute Resolution ==

Alternative dispute resolution is useful because it is efficient, inexpensive, '''confidential''', informal, and flexible; the parties have control over the outcome. A trial, on the other hand, is formal, less flexible, and can be more expensive. With few exceptions, everything that is said in a courtroom or written in a filed document can be accessed by any member of the public.

Parties who wish to preserve their relationship, avoid the stress of a trial, keep the details of their dispute private, or resolve their dispute in months instead of more than a year should seriously consider alternative dispute resolution.

=== 1. Negotiations ===

Negotiation is cost and risk-free. Any contact between the parties should be used to attempt to negotiate a settlement. Parties can negotiate a settlement at any point before a judgment is pronounced. Negotiations are without prejudice, which means they are confidential between the parties and cannot be used against a party in court. Any documentation related to negotiation should have the words “WITHOUT PREJUDICE” written across the top.

Ask the other party if they are represented by a lawyer. If so, all communication should be with the lawyer. If the other party is not represented, ask the other party if they are willing to discuss the claim.

Telephone technique should be '''firm''' but '''not argumentative'''. Try to negotiate the best offer possible.

Make a written plan and keep detailed notes of each conversation as it occurs. Plan how best to find out the other side’s position and how best to put forward your position.

If a settlement is reached, a letter should be sent to the other party to confirm the agreement. Enclose a duplicate copy for them to sign and return to you. Any settlement should include a mutual release agreement in which both parties agree to not bring any further claims against each other and to withdraw any other proceedings that may have been commenced.

:'''NOTE:''' If there are multiple defendants, a claimant should obtain legal advice to ensure that an agreement with one defendant does not inadvertently release the other defendants from liability.

=== 2. Mediation ===

Mediation is a voluntary process in which an independent, neutral party listens to each party’s position, focuses on the issues in dispute, and assists the parties to come to a settlement agreement. While the mediator plays an active role in ensuring discussion remains productive, the ultimate responsibility for resolving the dispute rests with the parties. The purpose of mediation is not to determine who wins and loses, but to find solutions that meet the needs of the people involved.

Mediation as an alternative to litigation is often a more expedient, less expensive, and more satisfactory route than litigation. In order to mediate outside of the Small Claims Court process, all parties must agree. The parties typically share the cost of mediation.

The Civil Resolution Tribunal’s facilitation process is essentially a mediation. In fulfilling its mandate, the role of the Civil Resolution Tribunal is “to encourage the resolution of disputes by agreement between the parties” (''CRTA'', s 2(3)). The tribunal’s mandate is to provide dispute resolution services in a manner that is accessible, speedy, economical, informal, and flexible (''CRTA'', s 2(2)).

The Small Claims Court requires that parties participate in either a settlement conference or mediation. Both processes are highly successful in resolving disputes and there is no additional cost to either party. For information on these processes, see the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/mediation-between Small Claims Mediation Guide].

Parties who choose to mediate outside of the Small Claims Court process can choose their mediator ([http://www.mediatebc.com/Find-a-Mediator.aspx Mediate BC website]), resolve the dispute sooner and on a more convenient timeline, and spend more time resolving the dispute than the approximately 2.5 hours allocated by the court. Also, since both parties would have agreed to mediate, settlement is more likely than if mediation is compulsory.

=== 3. Arbitration ===

Arbitration is a voluntary process in which an independent, neutral party will listen to each party’s position and resolve the conflict by choosing one of the party’s positions. If the arbitrator’s decision is binding, the dispute is settled. If the arbitrator’s decision is non-binding, the parties may accept it or proceed to litigation. Arbitration can offer a very quick resolution to disputes and encourages both parties to present reasonable offers in order to increase the likelihood that their proposal will be selected. In order to arbitrate, all parties must agree. The parties typically share the cost of arbitration. The Small Claims Court does not require or provide arbitration; parties who wish to arbitrate must do so on their own ([http://www.bcami.com/ the British Columbia Arbitration and Mediation Institute website]).

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Do You Have a Small Claim? (20:III)

2023-09-19T18:14:26Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

In order to have a legal claim, it must be recognized by the law. A frivolous claim is one that does not disclose a legal cause of action, is incapable of proof, or is otherwise bound to fail. A vexatious claim is one that is brought in order to annoy, frustrate, or antagonize the defendant. A claim may be both frivolous and vexatious.

If a claim is frivolous or vexatious, the claimant will lose and may be penalized up to 10% of the amount of the claim or counterclaim (''Small Claims Rules'', BC Reg 261/93, 20(5) [SCR]). The penalty could be up to $8,750 on a $35,000 claim; it pays to research your cause of action and limit your claim to the proper amount.

== A. Types of Claims & Remedies ==

It is helpful to research each of the following types of claims to ensure that a claim falls within at least one of them. See Appendix G: Causes of Action for a partial list of specific causes of action. If you are unable to fit your claim into one of the listed categories, you should consult a lawyer to see if you have a cause of action.

=== 1. Tort ===

Torts are offences committed by one person against another. Examples include assault, battery, and negligence. Each tort has its own test and defences. Tort law continues to evolve and a person planning to bring a claim in tort should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer.

=== 2. Contract ===

Contract law governs voluntary relationships between parties. It is a complicated and nuanced area of the law and a person planning to bring a claim in contract law should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer.

:'''NOTE:''' Courts will generally not enforce illegal contracts or dishonest transactions (See ''[http://canlii.ca/t/1djfx Faraguna v Storoz]'', [1993] BCJ No. 2114). However, ''[http://canlii.ca/t/1gd53 Transport North American Express Inc. v New Solutions Financial Corp.]'', 2004 SCC 7 states that a court may enforce legal portions of a contract, thus effectively severing the illegal portion. A common example involves contracts purporting to charge interest rates prohibited under s 347 of the ''Criminal Code''. The court will not enforce a term in a contract purporting to charge such a rate. (However, section 347.1 exempts payday loans from criminal sanctions, if certain conditions are met; see [[Direct Sales, Future Performance, and Time Share Contracts (11:V)#G. Regulation of Payday Lenders and Criminal Rate of Interest | Section V.G: Regulation of Payday Lenders and Criminal Rate of Interest]] in Chapter 11: Consumer Protection).

=== 3. Equity ===

The usual remedy for torts and breaches of contract is monetary damages. In circumstances where monetary damages are inadequate or where a legal remedy is improper in the circumstances, the court may grant other relief such as an injunction. The Small Claims Court, pursuant to s 2 of the ''Small Claims Act'' [SCA] (''Small Claims Act'', RSBC 1996, c 430), has a limited inherent jurisdiction to grant equitable remedies. The Civil Resolution Tribunal, pursuant to s 118 of the ''Civil Resolution Tribunal Act'' [CRTA] (''Civil Resolution Tribunal Act'', SBC 2012, c 25), has the same limited jurisdiction. A party seeking an equitable remedy such as an injunction should consult with a lawyer and will likely need to apply to the Supreme Court for relief.

=== 4. Restitution ===

The law of restitution applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited (''Nouhi v Pourtaghi'', 2022 BCSC 807). The type of claim commonly pursued for a restitution remedy is referred to as “unjust enrichment” and is a complicated and evolving area of the law. A party planning to attain a restitution remedy should consult a lawyer, research what must be proved to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer.

=== 5. Statute ===

Certain statutes create a right of action that does not exist in the common law. The statute will set out what must be proved, the defences that apply, the types of damages that can be awarded, and how the claim must be brought. A person planning to bring a claim under a statutory cause of action should research the statute as well as how the courts have interpreted it by noting up the applicable provisions. See page 2: “Other Important Statutes”. Resources include CanLII.org, the courthouse library, and a practicing lawyer.

=== 6. Declaratory Relief ===

Declaratory relief, whereby the court defines the rights of the parties to resolve legal uncertainties, cannot be claimed at the Provincial Court of British Columbia or the CRT. This includes declarations of who is liable for an accident and then ordering the defendant (often represented by an insurer) to change its liability determination. Parties seeking declaratory relief must do so at the BC Supreme Court (''Supreme Court Civil Rules'', BC Reg 168/2009, 20-4(1)).

== B. Types of Damages ==

Although the Small Claims Court has the jurisdiction to award $35,000, the monetary awards in most cases are significantly less (''Small Claims Court Monetary Limit Regulation'', BC Reg 179/2005). There must be a principled basis for an award of damages and it is helpful to separate a claim into the following types of damages. Ensuring that there is a legal basis for a claim is a critical step as there are penalties for proceeding through a trial in Small Claims Court on a claim that has no reasonable basis for success (''SCR'', s 20(5)).

=== 1. General Damages ===

General damages, also called non-pecuniary damages, are those that are not easy to quantify and for which a judge must assess the amount of money that, in the circumstances, will compensate for the loss. A common example of general damages is “pain and suffering”. The purpose of general damages is to compensate and not to punish; a party should not expect to profit or realize a windfall through an award of general damages. For both general and special damages, the principle of remoteness of damage relates to both tort and contract law cases. Defendants are generally only accountable for harm brought on by their wrongful acts or contractual breaches when that harm was reasonably foreseeable at the time of the conduct in question, or could have been reasonably contemplated to be a consequence of breaching the contractual term. A person planning to claim general damages should be ready to provide evidence of the loss and research the case law to determine how the courts have assessed damages in cases with similar losses and circumstances. Resources include CanLII.org, the courthouse library, and a practising lawyer.

=== 2. Special Damages ===

Special damages are generally quantifiable out-of-pocket expenses that must be specifically claimed and strictly proven (''SCR'', s 20(5)). For example, if a person has been put to expense and has receipts showing the amounts spent, these expenses would be classified as special damages. In a personal injury action, this could be medical bills, or in an action involving faulty equipment, repair bills could be classified as special damages. Each and every expense must be strictly proved with documents or other satisfactory evidence. In [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc581/2013bcsc581.html?searchUrlHash=AAAAAQAdUmVkbCB2LiBTZWxsaW4sIDIwMTMgQkNTQyA1ODEAAAAAAQ&resultIndex=1 ''Redl v. Sellin'', 2013 BCSC 581], the Court sets out the test with respect to a claimant’s claim for special damages. Generally speaking, claims for special damages are subject only to the standard of reasonableness. As with claims for the cost of future care (see [https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc982/2011bcsc982.html?searchUrlHash=AAAAAQAeSnVyYXNraSB2LiBCZWVrLCAyMDExIEJDU0MgOTgyAAAAAAE&resultIndex=1 ''Juraski v. Beek'', 2011 BCSC 982]; ''Milina v. Bartsch'' (1985), 49 BCLR (2d) 33 (BCSC))], when a claimed expense has been incurred in relation to treatment, evidence of medical justification for the expense is a factor in determining reasonableness.

=== 3. Nominal Damages ===

Nominal damages are those where a wrong has been committed but there has been no, or insignificant, damages suffered as a result of the wrong. Certain torts, such as trespass, allow claims for nominal damages however there is little reward and much to be lost. A person who has suffered no damages yet still brings a claim may not recover the costs for bringing a claim that wastes the court’s and the parties’ time and money. Note that cost awards are limited in small claims cases (''SCR'', s 20(2)) and in Civil Resolution Tribunal cases, legal feels will rarely be awarded (''Civil Resolution Tribunal Rules'', Rule 9.4(3) [CRTR]).

=== 4. Debt ===

Debt is a remedy for breach of contract; see [http://canlii.ca/t/5467 ''Busnex Business Exchange Ltd. v Canadian Medical Legacy Corp.'', 1999 BCCA 78]. The requirement for establishing a debt or ‘liquidated demand’ is that the sum of money is evident or able to be calculated by virtue of the contract. If the amount requires more investigation than mere calculation, the amount is not a debt but ‘damages’.

=== 5. Liquidated Damages ===

Some contracts provide for a genuine pre-estimate of damages in the event of a breach and allow the non-breaching party to claim for that estimate without having to prove the amount they have actually lost. This amount can be recovered as a debt. If the amount of liquidated damages is not a genuine pre-estimate of damages or is manifestly inappropriate in the circumstances, a court may decline to award them. However, the CRT cannot relieve a penalty because it is not a “court” (''Law and Equity Act'', s 24(2)).

=== 6. Statutory Damages ===

Statutory damages are those that arise from a breach by the defendant of an obligation found in a statute. The statute and relevant case law should be examined carefully to determine what damages, if any, may be claimed and the principles for assessing damages. Note, there are few statutory breaches that trigger statutory damages.

=== 7. Aggravated Damages ===

Aggravated damages provide additional compensation where the wrongdoer’s actions have caused mental distress, injury to dignity, or injury to pride ([http://canlii.ca/t/20zgp ''Campbell v Read'', 22 BCLR (2d) 214 (CA), 1987 Carswell BC 440]). Awards of aggravated damages are rare and depend heavily on the actions of the wrongdoer and the circumstances. Aggravated damages have previously been awarded in cases of aggravated assault and sexual assault ([http://canlii.ca/t/ft05t ''Thornber v Campbell'', 2012 BCSC 1449;] [http://canlii.ca/t/flvt5 ''B(A) v D(C)'', 2011 BCSC 775]). The claimant must provide actual evidence of mental distress that results from the wrongdoing of the defendant.

A claimant who seeks aggravated damages must ask for aggravated damages in the Notice of Claim (or “Application for Dispute Resolution” in the Civil Resolution Tribunal). Aggravated damages cannot be awarded in addition to the applicable monetary limit at the CRT or small claims.

=== 8. Punitive Damages ===

Punitive damages, also called “exemplary damages”, are reserved for conduct that is so abhorrent that the court must impose an additional penalty to punish the wrongdoer and discourage others from engaging in similar conduct (''Honda Canada Inc. v. Keays'', 2008 SCC 39). Punitive damages are '''rarely''' awarded. Punitive damages are not compensatory and the amount, if any, is in the complete discretion of the judge.

A claimant who seeks punitive damages must ask for punitive damages in the Notice of Claim (or “Application for Dispute Resolution” in the Civil Resolution Tribunal). Punitive damages '''cannot''' be awarded in addition to the monetary limit.

== C. Limitation Periods ==

===1. Changes Due to COVID-19===
:'''NOTE:''' Due to COVID-19, limitation dates were temporarily suspended. However, as of March 25, 2021, the suspension has been lifted, and limitations dates function as per usual.

To calculate limitations dates that were affected by COVID-19, please refer below guidelines for calculating BC limitation periods from the Law Society of BC website.
* If the limitation period would normally have expired between March 26, 2020 and March 25, 2021, add one year to the expiry year of the limitation period. Thus, persons have the same amount of time remaining after the suspension of limitation periods as they did before.
* If the cause of action arose before March 26, 2020 and would normally expire after March 26, 2021, add one year to the expiry year of the limitation period.
* If the cause of action arose after the suspension of limitation periods but before March 25, 2021, then the limitation period expires March 26, 2023. In this way, a limitation period that began to run during the suspension starts to run when the suspension is lifted.

The CRT remained open and operating normally during the COVID-19 pandemic. The automatic suspension of limitation dates did not apply to the CRT.

===2. Limitation Act===

After a certain amount of time has passed, a person loses the right to commence a claim. The amount of time that must pass before the limitation period expires depends on which act applies to the claim.

The ''Limitation Act'', SBC 2012, c 13 [Limitation Act] came into effect on June 1, 2013. A claim is governed by this Act if the claim was discovered after this date. Under the ''Limitation Act'', s 6(1), the basic limitation period that applies to most claims is 2 years after the day on which the claim is discovered.

Discovery occurs the day on which the claimant knew or reasonably ought to have known all of the following:

* That injury, loss or damage had occurred;
* That the injury, loss or damage was caused by or contributed to by an act or omission;
* That the act or omission was that of the person against whom the claim is or may be made;
* That, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage (''Limitation Act'', s 8).

However, there are certain situations where the date of discovery is deemed to be a later date, or where the limitation period is suspended. Under s. 24(1) of the Limitation Act, acknowledgement of liability by the person against whom the claim is made resets the running of the period to the day the acknowledgement is made. The kind of acknowledgement that qualifies here is strictly defined in s. 24(6). Under s. 25(1), the basic limitation period and ultimate limitation period applicable to the claim do not run if the claimant becomes a person with a disability, while the person continues to be a person under a disability.

For more information refer to '''Appendix F: Limitation Periods''' or consult a lawyer.

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Governing Legislation and Resources for Small Claims (20:II)

2023-09-19T18:10:09Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== 1. Legislation ==

=== Corporations ===

''Business Corporations Act'', SBC 2002, c 57. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/02057_00

''Canada Business Corporations Act'', RSC 1985, c C-44. Website: http://laws-lois.justice.gc.ca/eng/acts/c-44/

=== Cooperative Associations & Societies ===

''Cooperative Association Act'', SBC 1999, c 28. Website: http://www.bclaws.ca/Recon/document/ID/freeside/00_99028_01

''Societies Act'', SBC 2015, c 18. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/15018_01

=== Consumer Protection ===

''Business Practices and Consumer Protection Act'', SBC 2004, c 2. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/04002_00

=== Judgments ===

''Court Order Enforcement Act'', RSBC 1996, c 78. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96078_01

''Court Order Interest Act'', RSBC 1996, c 79. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96079_01

''The Enforcement of Canadian Judgments and Decrees Act'', SBC 2003, c 29. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_03029_01

=== Court Rules ===

''Bill 19, Civil Resolution Tribunal Amendment Act, 2015'', 4th Sess, 40th Parl, British Columbia, 2015 (assented to May 14th, 2015).
Website: http://www.bclaws.ca/civix/document/id/lc/billsprevious/4th40th:gov19-1

''Civil Resolution Tribunal Act'', SBC 2012, c 25. Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/12025_01

''Civil Resolution Tribunal Rules'', (effective May 1, 2023). Website: https://civilresolutionbc.ca/wp-content/uploads/CRT-Rules-in-force-May-1-2023.pdf

''Court of Appeal Act'', RSBC 1996, c 77. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96077_01

''Court of Appeal Rules'', BC Reg 297/2001. Website: http://www.bclaws.ca/Recon/document/ID/freeside/297_2001a

''Court Rules Act'', RSBC 1996, c 80. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96080_01

''Judicial Review Procedure Act'', RSBC 1996, c 241. Website: http://www.bclaws.ca/civix/document/id/roc/roc/96241_01

''Small Claims Act'', RSBC 1996, c 430. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96430_01

''Small Claims Rules'', BC Reg 261/93. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/261_93_00b

''Supreme Court Act'', RSBC 1996, c 443. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96443_01

''Supreme Court Civil Rules'', BC Reg 168/2009. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00

=== Other Important Statutes ===

''Apology Act'', SBC 2006, c 19. Website: http://www.bclaws.ca/Recon/document/ID/freeside/00_06019_01

''Bank Act'', SC 1991, c 46. Website: https://laws-lois.justice.gc.ca/eng/acts/B-1.01/page-1.html

''Bankruptcy and Insolvency Act'', RSC 1985, c B-3. Website: https://laws-lois.justice.gc.ca/eng/acts/B-3/page-1.html

''Court Jurisdiction and Proceedings Transfer Act'', SBC 2003, c 28. Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03028_01

''Crown Proceeding Act'', RSBC 1996, c 89. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96089_01

''Employment Standards Act'', RSBC 1996, c 113. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96113_01

''Evidence Act'', RSBC l996, c 124. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96124_01

''Insurance (Vehicle) Act'', RSBC 1996, c 231. Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96231_01

''Law and Equity Act", RSBC 1996, c 253. Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96253_01

''Limitation Act'', SBC 2012, c 13. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_12013_01

''Local Government Act'', RSBC 1996, c 323. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/r15001_00

''Motor Vehicle Act'', RSBC 1996, c 318. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/96318_00

''Negligence Act'', RSBC 1996, c 333. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/96333_01

''Occupier’s Liability Act'', RSBC 1996, c337. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/96337_01

''Personal Property Security Act'', RSBC 1996, c 359. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96359_01

''Privacy Act'', RSBC 1996, c 373. Website: http://www.bclaws.ca/Recon/document/ID/freeside/00_96373_01

''Real Estate Services Act'', SBC 2004, c 42. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/04042_01

''Residential Tenancy Act'', SBC 2002, c 78. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_02078_01

''Sale of Goods Act'', RSBC 1996, c 410. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96410_01

''Strata Property Act'', SBC 1998, c 43. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/98043_01

''Wills, Estates and Succession Act'', SBC 2009, c 13. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01

== 2. Books ==

Bullen, Leake, Jacob, and Goldrein. ''Bullen and Leake and Jacob’s Precedents of Pleadings'', 15th ed. (London: Sweet and Maxwell, 2004).

Burdett, E. (Ed.). ''Small Claims Act and Rules—Annotated''. (Vancouver, B.C.: The Continuing Legal Education Society of British Columbia, Dec 2014).

Celap, M. and Larmondin, P.J. ''Small Claims Court for the Everyday Canadian''. (North Vancouver, B.C.: Self-Counsel Press, 2000).

Fraser, Horn and Griffen. ''The Conduct of Civil Litigation in British Columbia''. 2nd ed. (Markham: Butterworths, 2007).

Keating, M. ''Small Claims Court Guide for British Columbia''. (North Vancouver, B.C.: Self-Counsel Press, 1992).

Martinson, D.J. (Manual Coordinator). ''Small Claims Court—1994''. (Vancouver, B.C.: The Continuing Society of British Columbia, April 1994).

Mauet, Casswell, and MacDonald. ''Fundamentals of Trial Techniques'' 2d Canadian ed. (Toronto: Little Brown, 1995).

McLachlin and Taylor, ''British Columbia Court Forms''. (Markham, Ont.: LexisNexis Canada, 2005).

Moore Publishing. (Ed.) ''Small Claims Practice Manual'', 3rd Ed. (Richmond, B.C.: Moore Publishing Ltd, 1999).

UBC Law Review Society. (Eds.) ''Table of Statutory Limitations for the Province of British Columbia, Revised and Consolidated''. (Vancouver, B.C.: University of British Columbia Law Review Publication, 2006).

Vogt, J. (Ed.). ''Provincial Court Small Claims Handbook''. (Vancouver, B.C.: The Continuing Legal Education Society of British Columbia, January 1997).

== 3. Websites ==

'''British Columbia Court of Appeal and Supreme Court Judgment Database'''
Website: https://www.bccourts.ca/search_judgments.aspx

'''CanLII''' - Caselaw and legislation database.
Website: https://www.canlii.org/en/

'''Civil Resolution Tribunal'''
Website: https://civilresolutionbc.ca/

'''Civil Resolution Tribunal (Solutions Explorer)'''
Website: https://civilresolutionbc.ca/solution-explorer/

'''Civil Resolution Tribunal Fees'''
Website: https://civilresolutionbc.ca/resources/crt-fees/

'''Provincial Court Judgment Database'''
Website: http://www.provincialcourt.bc.ca/judgments-decisions
* Contains selected decisions from 1999 to the present.

'''Provincial Courthouses Directory'''
Website: https://smallclaimsbc.ca/court-locations
* Contains Small Claims Court locations
* Note: www.smallclaimsbc.ca is run by the Justice Education Society and gives information on Small Claims court. It is not run by the small claims court itself.

'''Small Claims Court'''
Website: http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims

'''Small Claims Fees'''
Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/261_93_05b

'''Small Claims Forms'''
Website: http://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms

'''Small Claims Pilot Project'''
Website: http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/pilot

== 4. Other Resources ==

=== UBC Law Library ===
*Most of the books listed above are available in the Law Library. The ''Small Claims Acts and Rules Annotated'' and the ''Provincial Court Small Claims Handbook'', published by the Continuing Legal Education Society (CLE), are recent publications written by Small Claims Court judges. They include the Act, Rules, and copies of all of the forms. Students can access an online edition of the ''Provincial Court Small Claims Handbook'' on the [http://law.library.ubc.ca/ UBC Law Library website].

=== Court Registry ===
*The Small Claims Court registry staff does not give legal advice, but they are experienced with the rules and procedures and are helpful. See [[Small_Claims_Registries_(20:App_A) | Appendix A: Small Claims Registries]].

=== Online Help Guide Small Claims BC ===
*https://smallclaimsbc.ca/ is a website run by Justice Education Society (JES) with guidelines for small claims processes from start to finish

=== DIAL-A-LAW ===
*DIAL-A-LAW ((604) 687-4680 or 1-800-565-5297) is a library of pre-recorded messages on a variety of legal topics available by telephone 24 hours a day, seven days a week. Lawyers under the supervision of the Canadian Bar Association, BC Branch, prepare the tapes. Several tapes deal with Small Claims Court. The content of the tapes is also available online: http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts

=== Company Search ===

To search for a '''provincially''' regulated company, the client may request a company or society search in person:

'''Surrey Board of Trade'''

{{ResourcesLSLAP_addressphone
| address = 101 – 14439 104th Ave Surrey, BC V3R 1M1
| phone = (604) 581-7130 Toll-free: 1-866-848-7130
}}

'''Small Business B.C.'''

{{ResourcesLSLAP_addressphone
| address = 54 - 601 West Cordova St Vancouver, BC V6B 1G1
| phone = (604) 775-5525 Toll-free in B.C.: 1-800-667-2272
}}

'''BC Registry Services'''

{{ResourcesLSLAP_addressphone
| address = 940 Blanshard Street Victoria, BC V8W 2H3
| phone = (250) 387-7848 Vancouver: (604) 660-2421 Toll-free in B.C.: 1-877-526-1526
}}

The client may also write to:

{| class="wikitable"
| style="font-weight: bold;" | Registrar of Companies
|-
| P.O. Box 9431
Station Provincial Government

Victoria, BC V8W 9V3
|}

For more information about searching for provincial companies, refer to:
*http://smallbusinessbc.ca/services/
*http://www.bcregistryservices.gov.bc.ca/
*http://www.bconline.gov.bc.ca (online feature now available by opening a new account).

Partnerships and non-profit societies are also registered in the company directory and would show up in a search. In cases that involve franchises, it is important to do a company search to see how the other party is registered; it may be possible to sue the parent company and the individual who owns the franchise rights. The search costs $10, and cheques and/or money orders should be made payable to the Minister of Finance at:

BC Registries and Online Services 
Courier: 200 - 940 Blanshard Street, Victoria, BC V8W 3E6 
Mail: PO Box 9431 Stn Prov Govt, Victoria, BC V8W 9V3

'''If Unincorporated:'''

{{ResourcesLSLAP
| address = City of Vancouver Licence Office 515 West 10th Ave Vancouver, BC V5Z 4A8
| phone = (604) 873-7611
| online = [http://vancouver.ca/doing-business/licenses-and-permits.aspx Website]
}}

To search for a '''federally''' regulated company, refer to:

{{ResourcesLSLAP
| address = Industry Canada C.D. Howe Building 235 Queen Street Ottawa, Ontario K1A 0H5
| online = [http://www.ic.gc.ca Website]
}}

A collection of useful company directories can be found on the Industry Canada website under the “Programs and Services” heading. Federal corporations can be searched free of charge online.

:'''NOTE:''' If the defendant is a business, it may be worth checking if that defendant has declared bankruptcy. To do so contact Industry Canada’s Head Office of the Superintendent of Bankruptcy at (613) 941-2863 for free.

=== Translation and Support Services ===

To find support services and resources, including agencies and people that can provide translation services, please visit:

'''MOSAIC''' (Personal/Legal Translation Services)

{{ResourcesLSLAP
| address = 5575 Boundary Road Vancouver, BC V5L 2Y7
| phone = (604) 254-0469 Toll-free: 1-877-475-6777 Fax: (604) 254-2321 Toll-free fax: 1-877-254-2321
| online = [http://www.mosaicbc.com/ Website]
}}

'''Society of Translators and Interpreters of B.C.'''

{{ResourcesLSLAP_phoneonline
| address = Suite 400, 1501 West Broadway Vancouver, BC V6J 4Z6
| phone = (604) 684-2940 Fax: (604) 684-2947
| online = [http://www.stibc.org Website]
}}

'''DIVERSEcity'''

{{ResourcesLSLAP_phoneonline
| address = 13455 76 Avenue Surrey, BC, V3W 2W3
| phone = (604) 597-0205 Fax: (604) 597-4299
| online = [http://www.dcrs.ca Website]
}}

'''WelcomeBC'''

{{ResourcesLSLAP_phoneonline
| phone = (604) 660-2421 Toll Free: 1-800-663-7867
| online = [http://www.welcomebc.ca/home.aspx Website]
}}

'''OPTIONS'''

Guildford Location
{{ResourcesLSLAP_phoneonline
| address = 9815 – 140th street, Carole Wahl Building Surrey, BC V4T 4M4
| phone = (604) 584-5811 Fax: (604) 584-7628
| online = [http://www.options.bc.ca/ Website]
}}

Newton Location
{{ResourcesLSLAP_phoneonline
| address = 13520 – 78th avenue Surrey, BC V3W 8J6
| phone = (604) 596-4321 Fax: (604) 572-7413
| online = [http://www.options.bc.ca/ Website]
}}

'''S.U.C.C.E.S.S.''' Translation & Interpretation

{{ResourcesLSLAP_phoneonline
| address = 28 West Pender Street Vancouver, BC
| phone = (604)-408-7274 ext 2042
| online = [http://www.successbc.ca/ Website]
}}

'''Westcoast Association of Visual Language Interpreters'''

{{ResourcesLSLAP_online
| online = [http://www.wavli.com/ Website]
}}

'''Citizenship and Immigration Canada'''

{{ResourcesLSLAP_phoneonline
| phone = 1-888-242-2100
| online = [http://www.cic.gc.ca/english/index-can.asp Website]
}}

'''Affiliation of Multicultural Societies and Service Agencies of B.C.'''

{{ResourcesLSLAP_phoneonline
| phone = (604) 718-2780 1-888-355-5560 Fax: (604) 298-0747
| online = [http://www.amssa.org/ Website]
}}

'''Immigrant Services Society of B.C.'''

Head Office
{{ResourcesLSLAP_phoneonline
| address = 2610 Victoria Drive Vancouver, BC V4N 44L2
| phone = (604) 684-2561 Fax: (604) 684-2266
| online = [http://www.issbc.org Website]
}}

Vancouver (Terminal) Location
{{ResourcesLSLAP_phoneonline
| address = #601-333 Terminal Ave. Vancouver, BC V6A 4C1
| phone = (604) 684-2561 Fax: (604) 684-2266
| online = [http://www.issbc.org Website]
}}

{{LSLAP Manual Navbox|type=chapters15-23}}

Governing Legislation and Resources for Small Claims (20:II)

2023-09-19T18:09:41Z

Clicklaw Editor: /* Translation and Support Services */

{{REVIEWED LSLAP | date= September 8th, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

== 1. Legislation ==

=== Corporations ===

''Business Corporations Act'', SBC 2002, c 57. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/02057_00

''Canada Business Corporations Act'', RSC 1985, c C-44. Website: http://laws-lois.justice.gc.ca/eng/acts/c-44/

=== Cooperative Associations & Societies ===

''Cooperative Association Act'', SBC 1999, c 28. Website: http://www.bclaws.ca/Recon/document/ID/freeside/00_99028_01

''Societies Act'', SBC 2015, c 18. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/15018_01

=== Consumer Protection ===

''Business Practices and Consumer Protection Act'', SBC 2004, c 2. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/04002_00

=== Judgments ===

''Court Order Enforcement Act'', RSBC 1996, c 78. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96078_01

''Court Order Interest Act'', RSBC 1996, c 79. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96079_01

''The Enforcement of Canadian Judgments and Decrees Act'', SBC 2003, c 29. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_03029_01

=== Court Rules ===

''Bill 19, Civil Resolution Tribunal Amendment Act, 2015'', 4th Sess, 40th Parl, British Columbia, 2015 (assented to May 14th, 2015).
Website: http://www.bclaws.ca/civix/document/id/lc/billsprevious/4th40th:gov19-1

''Civil Resolution Tribunal Act'', SBC 2012, c 25. Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/12025_01

''Civil Resolution Tribunal Rules'', (effective May 1, 2023). Website: https://civilresolutionbc.ca/wp-content/uploads/CRT-Rules-in-force-May-1-2023.pdf

''Court of Appeal Act'', RSBC 1996, c 77. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96077_01

''Court of Appeal Rules'', BC Reg 297/2001. Website: http://www.bclaws.ca/Recon/document/ID/freeside/297_2001a

''Court Rules Act'', RSBC 1996, c 80. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96080_01

''Judicial Review Procedure Act'', RSBC 1996, c 241. Website: http://www.bclaws.ca/civix/document/id/roc/roc/96241_01

''Small Claims Act'', RSBC 1996, c 430. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96430_01

''Small Claims Rules'', BC Reg 261/93. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/261_93_00b

''Supreme Court Act'', RSBC 1996, c 443. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96443_01

''Supreme Court Civil Rules'', BC Reg 168/2009. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00

=== Other Important Statutes ===

''Apology Act'', SBC 2006, c 19. Website: http://www.bclaws.ca/Recon/document/ID/freeside/00_06019_01

''Bank Act'', SC 1991, c 46. Website: https://laws-lois.justice.gc.ca/eng/acts/B-1.01/page-1.html

''Bankruptcy and Insolvency Act'', RSC 1985, c B-3. Website: https://laws-lois.justice.gc.ca/eng/acts/B-3/page-1.html

''Court Jurisdiction and Proceedings Transfer Act'', SBC 2003, c 28. Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/03028_01

''Crown Proceeding Act'', RSBC 1996, c 89. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96089_01

''Employment Standards Act'', RSBC 1996, c 113. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96113_01

''Evidence Act'', RSBC l996, c 124. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96124_01

''Insurance (Vehicle) Act'', RSBC 1996, c 231. Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96231_01

''Law and Equity Act", RSBC 1996, c 253. Website: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96253_01

''Limitation Act'', SBC 2012, c 13. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_12013_01

''Local Government Act'', RSBC 1996, c 323. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/r15001_00

''Motor Vehicle Act'', RSBC 1996, c 318. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/96318_00

''Negligence Act'', RSBC 1996, c 333. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/96333_01

''Occupier’s Liability Act'', RSBC 1996, c337. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/96337_01

''Personal Property Security Act'', RSBC 1996, c 359. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96359_01

''Privacy Act'', RSBC 1996, c 373. Website: http://www.bclaws.ca/Recon/document/ID/freeside/00_96373_01

''Real Estate Services Act'', SBC 2004, c 42. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/04042_01

''Residential Tenancy Act'', SBC 2002, c 78. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_02078_01

''Sale of Goods Act'', RSBC 1996, c 410. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96410_01

''Strata Property Act'', SBC 1998, c 43. Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/98043_01

''Wills, Estates and Succession Act'', SBC 2009, c 13. Website: http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01

== 2. Books ==

Bullen, Leake, Jacob, and Goldrein. ''Bullen and Leake and Jacob’s Precedents of Pleadings'', 15th ed. (London: Sweet and Maxwell, 2004).

Burdett, E. (Ed.). ''Small Claims Act and Rules—Annotated''. (Vancouver, B.C.: The Continuing Legal Education Society of British Columbia, Dec 2014).

Celap, M. and Larmondin, P.J. ''Small Claims Court for the Everyday Canadian''. (North Vancouver, B.C.: Self-Counsel Press, 2000).

Fraser, Horn and Griffen. ''The Conduct of Civil Litigation in British Columbia''. 2nd ed. (Markham: Butterworths, 2007).

Keating, M. ''Small Claims Court Guide for British Columbia''. (North Vancouver, B.C.: Self-Counsel Press, 1992).

Martinson, D.J. (Manual Coordinator). ''Small Claims Court—1994''. (Vancouver, B.C.: The Continuing Society of British Columbia, April 1994).

Mauet, Casswell, and MacDonald. ''Fundamentals of Trial Techniques'' 2d Canadian ed. (Toronto: Little Brown, 1995).

McLachlin and Taylor, ''British Columbia Court Forms''. (Markham, Ont.: LexisNexis Canada, 2005).

Moore Publishing. (Ed.) ''Small Claims Practice Manual'', 3rd Ed. (Richmond, B.C.: Moore Publishing Ltd, 1999).

UBC Law Review Society. (Eds.) ''Table of Statutory Limitations for the Province of British Columbia, Revised and Consolidated''. (Vancouver, B.C.: University of British Columbia Law Review Publication, 2006).

Vogt, J. (Ed.). ''Provincial Court Small Claims Handbook''. (Vancouver, B.C.: The Continuing Legal Education Society of British Columbia, January 1997).

== 3. Websites ==

'''British Columbia Court of Appeal and Supreme Court Judgment Database'''
Website: https://www.bccourts.ca/search_judgments.aspx

'''CanLII''' - Caselaw and legislation database.
Website: https://www.canlii.org/en/

'''Civil Resolution Tribunal'''
Website: https://civilresolutionbc.ca/

'''Civil Resolution Tribunal (Solutions Explorer)'''
Website: https://civilresolutionbc.ca/solution-explorer/

'''Civil Resolution Tribunal Fees'''
Website: https://civilresolutionbc.ca/resources/crt-fees/

'''Provincial Court Judgment Database'''
Website: http://www.provincialcourt.bc.ca/judgments-decisions
* Contains selected decisions from 1999 to the present.

'''Provincial Courthouses Directory'''
Website: https://smallclaimsbc.ca/court-locations
* Contains Small Claims Court locations
* Note: www.smallclaimsbc.ca is run by the Justice Education Society and gives information on Small Claims court. It is not run by the small claims court itself.

'''Small Claims Court'''
Website: http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims

'''Small Claims Fees'''
Website: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/261_93_05b

'''Small Claims Forms'''
Website: http://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms

'''Small Claims Pilot Project'''
Website: http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/pilot

== 4. Other Resources ==

=== UBC Law Library ===
*Most of the books listed above are available in the Law Library. The ''Small Claims Acts and Rules Annotated'' and the ''Provincial Court Small Claims Handbook'', published by the Continuing Legal Education Society (CLE), are recent publications written by Small Claims Court judges. They include the Act, Rules, and copies of all of the forms. Students can access an online edition of the ''Provincial Court Small Claims Handbook'' on the [http://law.library.ubc.ca/ UBC Law Library website].

=== Court Registry ===
*The Small Claims Court registry staff does not give legal advice, but they are experienced with the rules and procedures and are helpful. See [[Small_Claims_Registries_(20:App_A) | Appendix A: Small Claims Registries]].

=== Online Help Guide Small Claims BC ===
*https://smallclaimsbc.ca/ is a website run by Justice Education Society (JES) with guidelines for small claims processes from start to finish

=== DIAL-A-LAW ===
*DIAL-A-LAW ((604) 687-4680 or 1-800-565-5297) is a library of pre-recorded messages on a variety of legal topics available by telephone 24 hours a day, seven days a week. Lawyers under the supervision of the Canadian Bar Association, BC Branch, prepare the tapes. Several tapes deal with Small Claims Court. The content of the tapes is also available online: http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts

=== Company Search ===

To search for a '''provincially''' regulated company, the client may request a company or society search in person:

'''Surrey Board of Trade'''

{{ResourcesLSLAP_addressphone
| address = 101 – 14439 104th Ave Surrey, BC V3R 1M1
| phone = (604) 581-7130 Toll-free: 1-866-848-7130
}}

'''Small Business B.C.'''

{{ResourcesLSLAP_addressphone
| address = 54 - 601 West Cordova St Vancouver, BC V6B 1G1
| phone = (604) 775-5525 Toll-free in B.C.: 1-800-667-2272
}}

'''BC Registry Services'''

{{ResourcesLSLAP_addressphone
| address = 940 Blanshard Street Victoria, BC V8W 2H3
| phone = (250) 387-7848 Vancouver: (604) 660-2421 Toll-free in B.C.: 1-877-526-1526
}}

The client may also write to:

{| class="wikitable"
| style="font-weight: bold;" | Registrar of Companies
|-
| P.O. Box 9431
Station Provincial Government

Victoria, BC V8W 9V3
|}

For more information about searching for provincial companies, refer to:
*http://smallbusinessbc.ca/services/
*http://www.bcregistryservices.gov.bc.ca/
*http://www.bconline.gov.bc.ca (online feature now available by opening a new account).

Partnerships and non-profit societies are also registered in the company directory and would show up in a search. In cases that involve franchises, it is important to do a company search to see how the other party is registered; it may be possible to sue the parent company and the individual who owns the franchise rights. The search costs $10, and cheques and/or money orders should be made payable to the Minister of Finance at:

BC Registries and Online Services 
Courier: 200 - 940 Blanshard Street, Victoria, BC V8W 3E6 
Mail: PO Box 9431 Stn Prov Govt, Victoria, BC V8W 9V3

'''If Unincorporated:'''

{{ResourcesLSLAP
| address = City of Vancouver Licence Office 515 West 10th Ave Vancouver, BC V5Z 4A8
| phone = (604) 873-7611
| online = [http://vancouver.ca/doing-business/licenses-and-permits.aspx Website]
}}

To search for a '''federally''' regulated company, refer to:

{{ResourcesLSLAP
| address = Industry Canada C.D. Howe Building 235 Queen Street Ottawa, Ontario K1A 0H5
| online = [http://www.ic.gc.ca Website]
}}

A collection of useful company directories can be found on the Industry Canada website under the “Programs and Services” heading. Federal corporations can be searched free of charge online.

:'''NOTE:''' If the defendant is a business, it may be worth checking if that defendant has declared bankruptcy. To do so contact Industry Canada’s Head Office of the Superintendent of Bankruptcy at (613) 941-2863 for free.

=== Translation and Support Services ===

To find support services and resources, including agencies and people that can provide translation services, please visit:

'''MOSAIC''' (Personal/Legal Translation Services)

{{ResourcesLSLAP
| address = 5575 Boundary Road Vancouver, BC V5L 2Y7
| phone = (604) 254-0469 Toll-free: 1-877-475-6777 Fax: (604) 254-2321 Toll-free fax: 1-877-254-2321
| online = [http://www.mosaicbc.com/ Website]
}}

'''Society of Translators and Interpreters of B.C.'''

{{ResourcesLSLAP_phoneonline
| address = Suite 400, 1501 West Broadway Vancouver, BC V6J 4Z6
| phone = (604) 684-2940 Fax: (604) 684-2947
| online = [http://www.stibc.org Website]
}}

'''DIVERSEcity'''

{{ResourcesLSLAP_phoneonline
| address = 13455 76 Avenue Surrey, BC, V3W 2W3
| phone = (604) 597-0205 Fax: (604) 597-4299
| online = [http://www.dcrs.ca Website]
}}

'''WelcomeBC'''

{{ResourcesLSLAP_phoneonline
| phone = (604) 660-2421 Toll Free: 1-800-663-7867
| online = [http://www.welcomebc.ca/home.aspx Website]
}}

'''OPTIONS'''

Guildford Location
{{ResourcesLSLAP_phoneonline
| address = 9815 – 140th street, Carole Wahl Building Surrey, BC V4T 4M4
| phone = (604) 584-5811 Fax: (604) 584-7628
| online = [http://www.options.bc.ca/ Website]
}}

Newton Location
{{ResourcesLSLAP_phoneonline
| address = 13520 – 78th avenue Surrey, BC V3W 8J6
| phone = (604) 596-4321 Fax: (604) 572-7413
| online = [http://www.options.bc.ca/ Website]
}}

'''S.U.C.C.E.S.S.''' Translation & Interpretation

{{ResourcesLSLAP_phoneonline
| address = 28 West Pender Street Vancouver, BC
| phone = (604)-408-7274 ext 2042
| online = [http://www.successbc.ca/ Website]
}}

'''Westcoast Association of Visual Language Interpreters'''

{{ResourcesLSLAP_online
| online = [http://www.wavli.com/ Website]
}}

'''Citizenship and Immigration Canada'''

{{ResourcesLSLAP_phoneonline
| phone = 1-888-242-2100
| online = [http://www.cic.gc.ca/english/index-can.asp Website]
}}

'''Affiliation of Multicultural Societies and Service Agencies of B.C.'''

{{ResourcesLSLAP_phoneonline
| phone = (604) 718-2780 1-888-355-5560 Fax: (604) 298-0747
| online = [http://www.amssa.org/ Website]
}}

'''Immigrant Services Society of B.C.'''

Head Office
{{ResourcesLSLAP_phoneonline
| address = 2610 Victoria Drive Vancouver, BC V4N 44L2
| phone = (604) 684-2561 Fax: (604) 684-2266
| online = [http://www.issbc.org Website]
}}

Vancouver (Terminal) Location
{{ResourcesLSLAP_phoneonline
| address = #601-333 Terminal Ave. Vancouver, BC V6A 4C1
| phone = (604) 684-2561 Fax: (604) 684-2266
| online = [http://www.issbc.org Website]
}}

{{LSLAP Manual Navbox|type=chapters15-23}}

Introduction to Small Claims (20:I)

2023-09-19T18:07:26Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}

Most people with legal claims under $35,000 are not lawyers and do not have the benefit of legal representation. It can be challenging to choose how to resolve a dispute and how much to claim. While this guide primarily focuses on the Small Claims Court, it briefly reviews other options for resolving disputes, including the Civil Resolution Tribunal (CRT) for Small Claims up to $5,000 in British Columbia. On April 1, 2019, the CRT’s jurisdiction expanded to include certain claims about motor vehicle accidents, including liability and damages claims up to $50,000, minor injury determinations, and accident benefits. This chapter of the manual only covers small claims at provincial court and the CRT’s small claims jurisdiction, not the accident claims jurisdiction. The jurisdiction for motor vehicles accidents is complicated.

If you are a party to a small claims action or proceeding, take the time to read this guide in its entirety. If you fail to comply with the rules, the process may be delayed, your claim or defence may be weakened, and you may be liable to pay costs and penalties to the other party. Reading this guide will help you be more prepared and minimize confusion.

This guide is meant to explain the general Small Claims Court process; it is not legal advice. Read the guide along with the Small Claims Court Rules and the Civil Resolution Tribunal Rules and obtain legal advice where necessary.

Directions for in-person proceedings and filings for small claims court (i.e., claims above $5,000) were significantly affected by the ongoing COVID-19 pandemic; however, many of the restrictions have since been removed. Consult the Provincial Court of BC website for up-to-date COVID-19 related notices, directions, and information. As of the time of writing, the following protocols apply to appearances:

* As of July 18th, 2022, BC Provincial court’s operations moved away from telephone/Teams audioconferences as the default method of appearance. Some appearances continue to be remote. For the default method of attendance for each appearance, see https://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters/chief-judge-practice-directions and Appendix “A” of NP 28: https://www.provincialcourt.bc.ca/downloads/Practice%20Directions/NP28.pdf

* For small claims trials, including Rule 9.1 simplified trials, and Rule 9.2 summary trials, and Rule 13 default hearings, the default method of hearing and appearance will be in-person, unless a judge otherwise orders or directs.

For the latest updates, we recommend you contact the court registry or visit: https://www.provincialcourt.bc.ca/. The CRT is fully functional and remained so throughout the pandemic.

{{LSLAP Manual Navbox|type=chapters15-23}}

Marriage (3:III)

2023-09-14T22:56:06Z

Clicklaw Editor: /* 1. General */

{{REVIEWED LSLAP | date= July 12, 2023}}
{{LSLAP Manual TOC|expanded = family}}

== III. Marriage ==

Marriage creates a legal relationship between two people, giving each certain legal rights and obligations. A legal marriage must comply with certain legal requirements. Therefore, not all marriages are legally recognized.

=== 1. Legal Requirements and Barriers ===

To be legally recognized or considered “valid”, a marriage must meet several legal requirements. Failure to meet these requirements may render the marriage void ab initio (void from the beginning). In other circumstances, such as sham marriages or marriages in which one party did not consent or did so under duress, the marriage may be voidable, meaning the marriage is valid until an order is made by the Court to annul the marriage.

==== a) Sex ====

In the past, spouses had to be of opposite sexes. This has been found to be unconstitutional (see [http://canlii.ca/t/1jdhv ''Reference re Same Sex Marriage'', [2004<nowiki>]</nowiki> SCR 698, [2004<nowiki>]</nowiki>, SCJNo 75]), and same-sex couples can now marry in every province and territory with the passing of Bill C-38 in the House of Commons, and subsequent passing in the Senate. Bill C-38 received Royal Assent on July 20, 2005 becoming the [http://canlii.ca/t/7w02 ''Civil Marriage Act'', SC 2005, c 33].

==== b) Relatedness ====

The federal [http://canlii.ca/t/7vq2 ''Marriage (Prohibited Degrees) Act'', 1990, c 46], bars marriage between lineal relatives, including half-siblings and adopted siblings.

==== c) Marital Status ====

Both spouses must be unmarried at the time of the marriage.

==== d) Age ====

Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act'', RSBC 1996, c7, s 1]). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of their parents (see the [http://canlii.ca/t/52pxh ''Marriage Act'', RSBC 1996, c 282, s 28]). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s 29). However, a marriage is not automatically invalid if the requirements of sections 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as spouses for some time).

==== e) Mental Capacity ====

At the time of the ceremony, both parties must be capable of understanding the nature of the ceremony and the rights and responsibilities involved in marriage.

==== f) Residency ====

The ''Civil Marriage Act'', SC 2005, c 33 was passed in 2014. With this new act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.

==== g) Foreign Marriages ====

The common-law rule is that the formalities of marriage – i.e. who can marry, who can perform weddings – are those of the law where the marriage took place, while the legal capacity of each party is governed by the law of the place where they live.

==== h) Sham Marriages ====

When parties marry solely for some purpose such as tax benefits or immigration status, the marriage may be voidable for lack of intent. However, the marriage may not be void for lack of intent alone, and courts may find the marriage valid and binding when the parties consented to the union (for example, see [http://canlii.ca/t/26v81 ''Grewal v Kaur'', 2009 Carswell Ont 7511, 84 Imm LR (3d) 227 (Ont SCJ)]. Sham marriages are uncommon.

==== i) Customary Marriage ====

The law recognizes traditional customary marriages of Aboriginal people in some circumstances where the marriage meets the criteria of English common law.

== B. Common-Law Relationships ==

=== 1. General ===

Common law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common-law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (See [http://canlii.ca/t/1dz3n ''Takacs v. Gallo'' (1998), 157 D.L.R. (4th) 623] for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; see [http://canlii.ca/t/g87vw ''Matteucci v Greenberg'', 2014 BCSC 1434]; [http://canlii.ca/t/fx5b2 ''Trudeau v Panter'', 2013 BCSC 706] that merely living together does not mean a relationship is marriage-like).

Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see [http://canlii.ca/t/g7cp6 ''CAM v MDQ'', 2014 BCPC 110] regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship. Someone separating within two years of ''FLA'' coming into force is a spouse ([http://canlii.ca/t/g2gfj ''Meservy v Field'', 2013 BCSC 2378]).

See [[Family Law Glossary (3:App A) | Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

Remember that a common-law relationship is not a legal marriage. Nevertheless, where legal rights and obligations are conferred on common-law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

=== 2. Estate Considerations ===

==== a) Wills, Estates and Succession Act (which came into force March 31, 2014) [WESA] ====

''WESA'' is available online at CanLII: https://canlii.ca/t/55nwv

Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminates the relationship (s 2(2)(b)).

If two or more persons are entitled to a spousal share of an intestate estate (estate for which the deceased has not left a will), they may agree on how to portion the share. If they cannot agree, a court will determine how to portion the spousal share between them.

If two or more persons are eligible to apply to be given priority as a spouse in the division of an intestate estate, they may agree on who is to apply. If they cannot agree, the Court can make a decision.

==== b) Canada Pension Plan Act, RSC 1985, c C-8 ====

Available online at: hhttps://laws-lois.justice.gc.ca/eng/acts/c-8/index.html

Common-law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office.

==== c) Workers’ Compensation Act, RSBC 1996, c 492 ====

Available online at: https://canlii.ca/t/55qlz

A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient.

==== d) Employment and Assistance Act, SBC 2002, c 40 ====

Available online at: https://canlii.ca/t/5571q

A common-law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1). Common law relationships are dealt with as marriages, and as single-family units where there are children.

== C. Marriage and Cohabitation Agreements ==

=== 1. General ===

Marriage agreements, sometimes colloquially referred to as pre-nuptial agreements, are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute.

Those interested in drawing up marriage, cohabitation, or pre-nuptial contracts on their own can be directed to the self-help kit. However, contracts drawn up using self-help kits are often overturned in Court. Independent legal advice is extremely important to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a cohabitation or marriage agreement are strongly encouraged to seek the advice of a lawyer.

=== 2. Legislation: Family Law Act [FLA] ===

The new ''FLA'' attempts to increase the enforceability of marriage and cohabitation agreements, and to provide clearer guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6).

Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if:
*a) Spouses fail to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
*b) One spouse takes improper advantage of another’s vulnerability;
*c) One spouse does not understand the nature or consequence of the agreement; and/or
*d) Other circumstances that would cause, under common law, all or part of the contract to be voidable.

The above concerns are often addressed by having the parties obtain independent legal advice.

Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement significantly unfair after considering these factors:
*a) The length of time that has passed since the agreement was made;
*b) The intention of the spouses, in making the agreement, to achieve certainty; and/or
*c) The degree to which the spouses relied on the terms of the agreement.

The ''FLA'' is drafted to make it harder for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (See [http://canlii.ca/t/g6t11 ''Thomson v Young'', [2014<nowiki>]</nowiki> CarswellBC 1287 (BCSC)]).

The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached ([http://canlii.ca/t/g0jhk ''Asselin v Roy'', 2013 BCSC 1681]).

Section 1 of the ''FLA'' provides a definition of “Written Agreement” as an agreement written and signed by all parties. Written agreements should also be witnessed by someone over the age of 19 to address potential evidentiary issues at a later date.

=== 3. Substance of Contract ===

The main part of the agreement usually deals with the division of property and debt in the event of a relationship breakdown. The agreement may provide for management and/or ownership of family property during a marriage or cohabitation and/or when the relationship ends. The parties may also specify that neither party is responsible for debts of the other incurred either before or during the relationship.

While it was once against public policy to contract in anticipation of future separation, section 92 of the ''FLA'' explicitly anticipates such considerations in a marriage contract. Under the ''FLA'', spouses can agree on how to divide family property, and what debts or items are eligible for division.

Section 93 of the ''FLA'' states that agreements respecting property division can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement.

According to section 93(4) and (5) of the ''FLA'', the Court will only set aside an agreement on property under these sections “if the division agreed to would be ‘substantially different’ from the division that the Court would order and ‘significantly unfair’ to one of the spouses”.

==== a) Parenting Arrangements ====

Parenting arrangements are generally never in cohabitation or marriage agreements.

Parenting arrangements are covered by section 44 of the ''FLA''. Please note that an agreement for contact is not an agreement for “parenting arrangements” and will not be enforced under this section.

Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)).

''FLA'' section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)), a concept discussed at length later in this chapter.

Section 58 of the ''FLA'' outlines guidelines for agreements regarding contact with children. The ''FLA'' emphasizes the importance of the "best interests" test, upgrading it from the “paramount” consideration to the “only” consideration. For more information on Parenting Time, see [[Parenting Time, Guardianship, and Access (3:XI) |Section XI: Parenting Time, Guardianship, and Access]].

==== b) Child Support ====

Per section 148 of the ''FLA'', an agreement respecting child support is binding only if the agreement is made after separation, or when the parties are about to separate, for the purpose of being effective on separation. It would thus not be binding if it is in a marriage/cohabitation agreement.

Courts can override or vary any such terms that are inconsistent with the [http://canlii.ca/t/80mh ''Federal Child Support Guidelines''] ([http://canlii.ca/t/g09dm ''Young v Young'', 2013 BCSC 1574]) or with section 150 of the ''FLA'' [''Determining Child Support'']. Section 150 states that the amount of child support is to be determined by the ''Federal Child Support Guidelines'' ([http://canlii.ca/t/g6907 ''Thibault v White'', 2014 BCSC 497]). These guidelines have not been changed by the new ''FLA'' and old court decisions interpreting the guidelines continue to apply ([http://canlii.ca/t/fxnqv ''SML v RXR'', 2013 BCPC 123]).

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and step-parents (See ''B (C) v B (M)'', [2014] CarswellBC 1212 (BCPC)). It is also important to note that any term purporting to exclude support obligations is likely to be found invalid on public policy grounds. The Court will seldom uphold an amount lower than the guidelines, even if the parties agree on it, unless there is an appropriate reason to approve it, such as some other arrangement that directly benefits the child. It is important to note that the Court may refuse an application for a Divorce Order if the Court is not satisfied that appropriate arrangements have been made for the support of the parties’ children. See [[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]].

==== c) Spousal Support ====

The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as if an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s 164 of the ''FLA'').See [[Spousal and Child Support (3:X) | Section X: Spousal and Child Support]].

==== d) Void Conditions ====

Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating that one spouse shall do all the cooking is a contract for personal services; therefore, it is not enforceable. A breach of such an agreement cannot be grounds for divorce.

:'''NOTE:''' Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See [http://canlii.ca/t/1d921 ''Clarke v Clarke'' (1991), 31 R.F.L. (3d) 383 (BCCA)].

:'''NOTE:''' Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted later, the terms of the Agreement continue to apply unless expressly stated otherwise. This is more applicable to Separation Agreements.

{{LSLAP Manual Navbox|type=chapters1-7}}

The WCB Fair Practices Office (7:XVI)

2023-09-12T20:16:01Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

The WCB has a Fair Practices Officer (formerly “Chief Complaints Officer”) who has been assigned to deal with issues of alleged unfairness related to the WCA. A claimant who has a complaint about a decision must first pursue all available routes of appeal. The Fair Practices Officer may investigate a complaint after all routes of appeal are exhausted. Individuals or groups with complaints about the fairness of WCB decisions, recommendations, actions, procedures, practices, or regulations may contact the WCB Complaints Officer by phone, fax, mail, or in person.

The WCB Fair Practices Officer should not be confused with the BC Ombudsperson, who still has authority to investigate complaints against the WCB. The BC Ombudsperson’s policy is to suggest that all complaints go first to the WCB Fair Practices Officer, but a worker may ask that the provincial Ombudsperson intervene immediately if the Fair Practices Officer is unable to resolve the problem. Advocates are beginning to make more complaints to the BC Ombudsperson recently, and students can insist that this be done if the complaint process seems ineffective. See [[Introduction to Public Complaints (5:I)|'''Chapter 5: Public Complaints Procedures.''']]

{{LSLAP Manual Navbox|type=chapters1-7}}

Assessments of Employers for Workers' Compensation (7:XV)

2023-09-12T20:15:17Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

The theory behind the workers’ compensation system is that the risk of loss through occupational disease or injury resulting from the workplace should be borne by the industry as a cost of doing business. The WCA is administered by the WCB, which is an independent administrative agency created by the provincial government. The program is funded by compulsory assessments on employers, which make up the Accident Fund. These assessments must be paid by the employer and cannot be deducted from the employee’s pay (WCA, s. 118 [Former Act, s. 14]). The Board gets preferential treatment in its power to collect from an employer. An employee whose employer is subject to the WCA is covered by the WCA regardless of whether or not the employer pays premiums.

Industries are divided into classes and sub-classes. The total assessments for each class are fixed according to the principles of collective liability. The Board is to collect sufficient money to cover the past and estimated future costs of all the claims from workers in each sub-class. Each employer then pays its share, based on the size of its payroll and adjusted for the number of claims against the employer under the Board’s “experience rating” scheme. One negative effect of the experience rating system is that employers obviously have an economic interest in contesting their workers’ claims. This makes the system more adversarial, which might be seen to contradict the principles of Workers’ Compensation.

Some self-employed contractors are considered employers under the ''Act'' and are therefore assessed as such. These self-employed workers can purchase “personal optional protection” (“POP”) to cover their own risk of injury, in addition to the assessments they are required to pay to cover their risk as employers. This arrangement is common in the logging, transportation, and construction industries.

{{LSLAP Manual Navbox|type=chapters1-7}}

Health and Safety Regulations in the Workplace (7:XIV)

2023-09-12T20:14:32Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

The WCB is also responsible for enacting and enforcing health and safety regulations under Part 2 of the ''Act'' [Former Act,Part 3] through WCB’s ''Occupational Health and Safety Regulation'', BC Reg 296/97 (OHS). These regulations can be found [https://www.worksafebc.com/en/law-policy/occupational-health-safety/searchable-ohs-regulation/ohs-regulation online]. Workers or employers interested in the regulations can be referred to the Board’s Health and Safety Department. The date of enactment should always be checked to determine which version was in effect at the time of injury.

== A. A Worker May Refuse Unsafe Work ==

Under the existing OHS, Part 2, a worker may refuse work that is unsafe. The worker must not carry out any work process if they have reasonable cause to believe that it would create an undue hazard to the health and safety of any person.

The right to refuse continues until the employer has taken remedial action to the satisfaction of the worker, or an officer has investigated the matter and advised the worker to return to work.

A worker who has exercised their right to refuse unsafe work must immediately report the refusal and the reasons for it to their supervisor or to the employer. The worker must remain available at the workplace during normal working hours until the investigation is complete. The employer may give the worker different duties to perform until the matter is resolved, and it may assign another worker to the job in question if the risk is specific to the worker (such as a person with a bad back being told to lift heavy boxes, or an untrained person being told to operate equipment).

== B. Prohibition Against Discriminatory Action ==

Section 48 of the WCA [Former Act, s. 151] states that an employer or union must not take or threaten any retaliatory action against a worker for exercising any of their rights under Part 2 of the ''Act'' [Former Act, Part 3]. A non-exhaustive list of such discriminatory actions is provided in s. 47 of the ''Act'' [Former Act, s. 150]. This list includes: suspension, layoff or dismissal; demotion; reduction in wages; transfer of duties or of location; coercion or intimidation; and the imposition of any discipline, reprimand, or penalty.

Note that the “bare filing of a claim,” that is, filing a claim that is a request for compensation only and does not allege OHS violations, does not engage the protection of s. 48 of the Act (WCAT2015-01946).

Complaints should be made in writing to the Board within the time limits set out in s. 49 of the ''Act'' [Former Act, s. 152]. Section 49(4) of the ''Act'' [Former Act, s. 152(2)] places the burden of proving that the alleged discriminatory action did not occur on the employer or union as applicable. The Board has been given a wide range of remedies under s. 50 of the ''Act'' [Former Act, s. 153]. It is important to note that this section is not for human rights complaints, but only for retaliation against a worker for exercising the rights provided by the WCB system.

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Appeals in Worker's Compensation Claims (7:XIII)

2023-09-12T20:13:15Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

If the worker (or the employer) disagrees with a Board decision, they may appeal the decision to the Review Division (“'''RD'''”) '''within 90 days''' of the Board’s decision. The RD is a review body internal to the Board. Links to RD material, including RD appeal forms, are available on the Board website ([http://www.worksafebc.com/en/review-appeal www.worksafebc.com/en/review-appeal]). The RD must issue a decision '''within 180 days''' of the appeal being filed. The RD decision may then be appealed to an independent tribunal, the Workers’ Compensation Appeal Tribunal (“'''WCAT'''”) '''within 30 days''' of the RD decision. WCAT appeal forms are available on the WCAT website: [http://www.wcat.bc.ca www.wcat.bc.ca].

Section 123(1) of the ''Act'' [Former Act, s. 96(4)] does allow the Board to “reconsider” '''any''' past decision, on its own initiative, but s. 123(2) of the ''Act'' [Former Act, s. 96(5)] prohibits it from doing so if a decision is more than '''75 days old''', unless there has been fraud or misrepresentation (such as when video evidence may show that the worker is less disabled than claimed) or if there is a clear error or omission. The Board interprets this to mean that the reconsideration '''must be completed''', not just initiated, by the 75th day.

Please note that once a request for a review has been filed, the CM is no longer allowed to proceed with a reconsideration.

== A. Internal Review: Workers’ Compensation Review Decision ==

A worker, a deceased worker's dependant, or an employer may request a review of any of the following decisions of the Board:

* a decision respecting a compensation or rehabilitation matter (e.g., denial of benefits, or quantum of benefits);
* a decision levying payment by the employer for failure to comply with the statute;
* a decision respecting an occupational health or safety matter; or
* a decision respecting an application to reopen a matter because of a recurrence of injury or significant change in a compensable medical condition.

The Review Division may also reconsider its own decisions in some cases. It can only undertake such a reconsideration during the first '''23 days''' after the decision is made, and only if no appeal has yet been filed to WCAT. Once a reconsideration is directed by the Chief Review Officer, the Review Division can change a decision on the basis of new evidence that didn’t exist or couldn’t have been presented previously with “due diligence” on the part of the applicant.

Once the period for directing a reconsideration has passed, the matter must be appealed to WCAT. For decisions that cannot be appealed to WCAT, like vocational rehabilitation issues and many pension amounts, there will be no way for anyone in the system to change an incorrect decision based on new evidence, even if it could not possibly have been presented earlier and shows conclusively that the decision was wrong. The matter must be taken to judicial review.

=== 1. Appeal Procedure: Workers’ Compensation Review Decision ===

A complete account of the review process goes beyond the scope of this chapter. A good starting point in preparing a review of the Board’s decision is to go to [http://www.worksafebc.com www.worksafebc.com] and look for the “Manage a Claim” section found under the “Claims” menu. Follow the link under the heading “If you disagree with a claim decision.” There is a Policy and Procedures Manual that describes the process in detail, as well as provides the necessary forms and applications. Limitations as to what kinds of decisions can be appealed, and what persons can appeal them, are clearly stated within this section.

To request a review, the worker must complete and submit a two-page Request for Review form (available online). This form may be submitted by mail or by fax. See [[Checklist for Workers' Compensation Review Division Appeals (7:App G)|'''Appendix G: Checklist for Review Division Appeals''']].

== B: Appeal to Workers’ Compensation Appeal Tribunal (WCAT) ==

A worker, a deceased worker’s dependant, or an employer may appeal most decisions of the Review Division to WCAT. The following classes of decisions may '''not''' be appealed to WCAT (WCA, s. 288 [Former Act, s. 239] and ''Workers Compensation Act Appeal Regulations'', BC Reg 321/2002):

* a response to a workers complaint respecting prohibited action or failure to pay wages (Act, s. 50 [Former Act, s. 153]);
* decisions respecting vocational rehabilitation (Act, s. 155 [Former Act, s. 16]);
* amount of a functional pension if the possible range is 5% or less, and commuting a pension into a lump sum payment (WCA, ss. 195, 230 and 231 [Former Act, ss. 23 and 35]);
* decisions applying procedural time limits specified by the Board under s. 338 of the Act [Former Act, s. 96(8)];
* decisions refusing to allow an extension of time to file a request for review (Act, s. 270(2) [Former Act, s. 96.2(4)]);
* decisions relating to the conduct and procedural policies implemented by the Review Division for the internal review (Act, ss. 272(2) to (5) and (8) [Former Act, s. 96.4(2) to (5) and (7)]);
* orders by the chief review officer as to whether or not to suspend the operation of a decision pending completion of the review (Act, s. 270(3) [Former Act, s. 96.2(5)]);
* decisions about whether or not to refer a decision back to the Board following completion of the Review Division hearing (Act, s. 272(9)(b) [Former Act, s. 96.4(8)(b)]); or
* decisions respecting the conduct of a review in respect of any matter that cannot be appealed to WCAT under s. 288(2)(b)–(e) of the Act [Former Act, s. 239(2)(b)–(e)].

As an administrative tribunal, WCAT is subject to the expectations of procedural fairness common to all such bodies (i.e., an appellant’s right to be heard, right to a decision from an unbiased decision maker, right to a decision from the person who hears the case, and a right to reasons for the decision). As an independent body, WCAT is not bound by any WCB findings and has exclusive jurisdiction to make any findings of fact it deems relevant to the appeal (pre-revision WCA s. 254 as interpreted in [https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca377/2015bcca377.html?autocompleteStr=Preast%2520v%2520Workers%25E2%2580%2599%2520Compensation%2520Appeal%2520Tribunal%252C%25202015%2520BCCA%2520377&autocompletePos=1 ''Preast v Workers’ Compensation Appeal Tribunal'', 2015 BCCA 377] – this likely applies to its revised equivalent, the current s. 308). Additionally, WCAT is not bound by its own previous decisions unless departing from them is clearly irrational ([https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc133/2016bcsc133.html?autocompleteStr=Macrae%2520v%2520Workers%25E2%2580%2599%2520Compensation%2520Appeal%2520Tribunal%252C%25202016%2520BCSC%2520133&autocompletePos=1 ''Macrae v Workers’ Compensation Appeal Tribunal'', 2016 BCSC 133]).

WCAT’s ''Manual of Rules of Practice and Procedure'' (MRPP) is accessible online at [http://www.wcat.bc.ca www.wcat.bc.ca], as are appeal forms, guidelines, and information about filing appeals.

=== 1. Appeal Procedure: Workers’ Compensation Appeal Tribunal ===

The best starting point to prepare an appeal to WCAT is to go to the website: [http://www.wcat.bc.ca www.wcat.bc.ca]. The “Resources” section provides access to various appeal forms, as well as an info sheet with further information on the appeals process. The WCAT site also contains a detailed manual. Parties applying for reconsideration must write to the Tribunal Counsel Office. WCAT will not accept applications for reconsideration by telephone. After WCAT makes a decision to allow an appeal, WCB implements it into its decision. Note that WCAT can reimburse workers for the cost of acquiring medical reports that are reasonably useful to the hearing.

=== 2. Clarifications, Corrections, or Missed Issues ===

WCAT may correct accidental errors or omissions (such as typographical or numerical) if the appellate requests corrections. The appellate should request clerical corrections as soon as possible and WCAT aims to have them amended within 90 days. WCAT may '''clarify''' their decision if it is not clear. The appellate must request clarification in writing '''within 90 days''' of the date the decision was served, and the panel will decide if clarification is necessary. If WCAT did not '''decide''' on an issue in the appeal, the appellate must request this in writing to the Tribunal Counsel Office. If the panel that made the decision agrees that they did not decide on an issue in the appeal, then they will complete the decision by writing an addendum to the decision.

=== 3. Reconsideration of WCAT Decisions ===

WCAT may reconsider a final decision for very limited reasons after its reconsideration powers were considered by both the BCCA and the SCC in the [https://www.canlii.org/en/ca/scc/doc/2016/2016scc25/2016scc25.html?autocompleteStr=Fraser%2520Health%2520Authority%2520v%2520Workers%2520Compensation%2520Appeal%2520Tribunal%252C%25202016%2520SCC%252025&autocompletePos=1 ''Fraser Health Authority''] case, supra.

Under the WCA, a WCAT panel may change the outcome of a WCAT decision if there is new evidence. In addition, WCAT may still reconsider a WCAT decision under common law grounds if there is procedural unfairness or a true '''jurisdictional error'''.

:'''Note''': A “true jurisdictional error” is an argument that should be used with caution, as the SCC has ceased recognizing jurisdictional questions as a separate category of questions separate from any other type of question on judicial review. See [https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do ''Canada (Minister of Citizenship and Immigration) v. Vavilov'', 2019 SCC 65], at paras 65–68.

On these grounds, WCAT may rehear all or part of the appeal and come to a different conclusion. However, WCAT '''cannot''' change the outcome of a WCAT decision because it is incorrect, unreasonable, or patently unreasonable. In this respect, the WCAT decision is final, reviewable only by a court on judicial review, with a time limit to apply for judicial review of '''60 days''' under the ''Administrative Tribunal Act''.

Information regarding reconsideration of WCAT decisions is available on the PostDecision Information Guide on the WCAT website. There is '''no time limit''' on applying for reconsideration. To apply for reconsideration, a worker may fill out the Application for Reconsideration form and send it in to the Tribunal Counsel Office. A worker can also apply for reconsideration by writing a letter to the Tribunal Counsel Office explaining how they meet the grounds for reconsideration.

WCAT makes a '''jurisdictional error''' if it:

* decided on something it had no power to decide (e.g., if WCAT tried to make a binding decision on a residential tenancy issue when it only has authority to make decisions on workers’ compensation issues);
* failed to decide on something it was supposed to decide (e.g., a worker properly appealed a decision and WCAT refused or failed to make a decision);
* was procedurally unfair (e.g., WCAT was unfair in its decision-making process, such as refusing to allow a worker to make submissions for an appeal).

Section 310(3) of the WCA [Former Act, s. 256(3)] allows for a party to a completed appeal to apply for reconsideration of a decision based on new '''evidence''' which:

# is substantial and material to the decision, and
# did not exist at the time of the appeal hearing or did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered.

If you apply for reconsideration based on new evidence, '''you must explain''':

* why the new evidence is substantial (i.e., how it has weight and supports a different conclusion);
* how it is material (i.e., how it is relevant to the decision);
* whether or not the evidence previously existed; and
* if it did exist previously, why you did not discover (and submit) it at the time of the original hearing.

A claimant can only apply once for reconsideration on each ground, so it is important that they are ready. This can be done at the same time or separate times for each ground. If applying for reconsideration of evidence, include the new evidence in the application. You will not be able to re-apply multiple times for any new evidence that might become available in the future.

The first stage of reconsideration results in a formal written decision, issued by a WCAT panel, determining whether there are grounds for reconsideration. If the panel concludes that there are no grounds for reconsideration, WCAT will take no further action on the matter. If a panel decides that there are grounds for reconsideration, the original decision will then be found void (in whole or in part) and the application will proceed to the second stage at which a WCAT panel will hear the appeal once again. WCAT will decide whether the second stage will be conducted by oral hearing or written submission.

WCAT has the authority to reconsider both WCAT and the former Appeal Division decisions. WCAT does not, however, have the authority to reconsider decisions by the former Review Board or the current Review Division. Objections to those decisions will be treated as appeals or applications for extensions of time to appeal. Additionally, WCAT cannot reconsider its own decisions for unreasonableness, patent unreasonableness, or error ([https://www.canlii.org/en/ca/scc/doc/2016/2016scc25/2016scc25.html?autocompleteStr=Fraser%2520Health%2520Authority%2520v%2520Workers%2520Compensation%2520Appeal%2520Tribunal%252C%25202016%2520SCC%252025&autocompletePos=1 ''Fraser Health''], supra).

In view of the finality of these provisions, especially where a decision has not been appealed, any worker who is not completely satisfied with a decision should request a review by the Review Division and, if allowed, an appeal to WCAT. This will preserve a residual right to present new evidence in the future, even if the appeal is unsuccessful.

WCAT decisions are accessible on the website under “prepare your case,” which is listed under “appeal a decision.” To view previous WCAT decisions made on applications for reconsideration, you can select “[https://www.wcat.bc.ca/home/search-past-decisions/ Search past appeal decisions]” under “review decisions for appeals that are similar.”

== C. Judicial Review (JR) ==

A party may apply for judicial review at the same time that they apply for a reconsideration of a decision from WCAT. A party must apply for judicial review of a WCAT decision by the British Columbia Supreme Court '''within 60 days''' of the date on which a decision is issued. Under certain circumstances, the court may extend the time for applying. Due to clear language in the ''Administrative Tribunal Act'', Judicial Review of WCAT decisions are held to the standard of patent unreasonableness on most questions (constitutional issues and questions of so-called true jurisdiction are exceptions). This is the highest level of judicial deference and limits the court's ability to interfere unless the decision was “openly, evidently, clearly wrong” ([https://www.canlii.org/en/ca/scc/doc/1997/1997canlii385/1997canlii385.html?autocompleteStr=Canada%2520(Director%2520of%2520Investigation%2520and%2520Research)%2520v%2520Southam%2520Inc.%252C%2520%255B1997%255D%25201%2520S.C.R.%2520748&autocompletePos=1 ''Canada (Director of Investigation and Research) v Southam Inc.'', [1997<nowiki>]</nowiki> 1 S.C.R. 748]; [https://www.canlii.org/en/ca/scc/doc/2016/2016scc25/2016scc25.html?autocompleteStr=Fraser%2520Health%2520Authority%2520v%2520Workers%2520Compensation%2520Appeal%2520Tribunal%252C%25202016%2520SCC%252025&autocompletePos=1 ''Fraser Health''], supra).

'''Possible judicial review cases should be referred to lawyers, as it is very difficult to file and conduct a judicial review case without a lawyer’s assistance.''' See [[Introduction to Public Complaints (5:I)|'''Chapter 5: Public Complaints Procedures''']] for more information about judicial review.

Note that if Judicial Review and reconsideration are both possible, it is advisable for the worker to file their paperwork for Judicial Review within the 60-day time limit and then apply for reconsideration. This ensures that they will still be able to pursue Judicial Review if their reconsideration is denied.

According to [https://www.canlii.org/en/bc/bcca/doc/2017/2017bcca403/2017bcca403.html?autocompleteStr=Denton%2520v%2520British%2520Columbia%2520(Workers%25E2%2580%2599%2520Compensation%2520Appeal%2520Tribunal)%252C%25202017%2520BCCA%252040&autocompletePos=1 ''Denton v British Columbia (Workers’ Compensation Appeal Tribunal)'', 2017 BCCA 40], where an appeal raises constitutional issues, those issues must be raised prior to the JR stage at the British Columbia Supreme Court. Both the Review Division and WCAT have the authority to hear constitutional issues.

== D. Access to Files ==

Under the ''Freedom of Information and Protection of Privacy Act'', RSBC 1996, c 165 (FIPPA), all workers have the right to receive a copy of their file. Employers have the right to obtain a copy of the Board’s file if an appeal is pending or if a decision is made. The ''Act'', however, limits an employer’s ability to use this information in non-employment related issues. An employer, for example, may not use the information contained in the worker’s file for disciplinary purposes.

A worker’s WCB claim file that is disclosed for purposes of an appeal or a Freedom of Information request should contain all of the information pertaining to the Board’s decision, as well as copies of any decisions regarding the claim.

Prior to May 2009, a file was divided into various sections such as Claims, Medical, Accounts, and Memo. Usually, the papers were filed in chronological order. Files are organized differently under the CMS data management system. Now, the preferred method of disclosure is by way of an encrypted .pdf file on a CD. The first disclosure will be a complete copy of the file, not just an update.

Overall, the adoption of electronic (e-file) rather than paper files has reduced administrative delays due to files being in use by other departments at the WCB or WCAT, but it has also decreased the detailed information explaining how decisions were reached, as handwritten notes and other documents are sometimes omitted. A request for disclosure under the FIPPA usually results in a more thorough search for such records and is occasionally advisable in cases where all information is needed. At times, the Board may not disclose all of the relevant evidence in its possession. Some of the missing information may be helpful for appeals, such as the actual observations of the Board’s staff during a functional evaluation, rather than just a final report.

{{LSLAP Manual Navbox|type=chapters1-7}}

Workers' Compensation Claim Benefits (7:XI)

2023-09-12T20:10:11Z

Clicklaw Editor: /* 1. Recurrence or Deterioration and Wage Rates */

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

Once a claim has been accepted by the Board, the process then moves to a determination of what benefits should be paid to the injured worker.

Many RSCM II chapters apply to the adjudication of claim benefits. The most important chapters can be summarized as follows:

* Chapter 5 – Wage-Loss Benefits
* Chapter 6 – Permanent Disability Benefits
* Chapter 8 – Compensation on the Death of a Worker
* Chapter 10 – Health Care; and
* Chapter 11 – Vocational Rehabilitation Services

== A. Overview: Worker Disability and Compensation Benefits ==

Of the 100,000 workers injured on the job in BC every year, about half suffer minor or inconvenient injuries and return to their pre-injury employment in quick order. Most of these claims are accepted by the Board for health care benefits only (medical treatment, medication, etc.).

Of those workers whose injuries are more serious, there are several common profiles of disability and recovery. After a worker makes an application for a temporary disability, the Board determines whether the worker is totally temporarily disabled and, if so, pays full wage-loss benefits under Section 191 of the WCA [Former Act, s. 29]. If the worker is only partially temporarily disabled, i.e., they can work some hours or some duties, the Board will pay partial wage loss under Section 192 of the WCA [Former Act, s. 30].

The following examples are to illustrate common compensation benefits and scenarios for disability:

* The worker suffers a broken wrist in their dominant hand and cannot perform their job duties as a result. Their doctor recommends a certain number of weeks to recover after which they are cleared to return to work, full duties. The worker makes an application for compensation. If their claim is accepted, the Board sets a short-term wage rate on their claim (based on their average earnings) and the worker is paid temporary wage-loss benefits at this rate for their days of lost work. The Board also covers any health care costs such as treatment or medication. If there are no permanent medical consequences to this injury and the worker returns to work full duties, the Board issues a decision that the injury is “resolved,” and their claim is closed. The worker is not referred for any other benefits such as Disability Awards or Vocational Rehabilitation.
* The worker suffers a more serious injury to their hand (e.g., a crush injury). If their claim is accepted, they again receive temporary wage loss for their time away from work. However, after 10 weeks, the Board issues a new long-term wage rate based on a more complex formula in law and policy. At a discretionary point, the Board considers that the worker’s condition is no longer “temporary” and must make one of the following decisions about the worker’s medical condition. Either:

:(a) their injury has “resolved” with no permanent impairment and they can return to work and perform full duties. In this case (as above), the Board will issue a “resolve” decision ending their temporary wage-loss benefits and their file will be closed; or
:(b) their injury is not fully resolved, and they are left with some permanent functional impairment. In this case, the Board will issue a “plateau decision,” setting a date at which it considers that the worker’s condition is no longer temporary, but it has reached a medical “plateau” (that is, the condition will not significantly change in the next year). This “plateau” decision also ends temporary wage-loss benefits on the plateau date, but will also refer the worker to Disability Awards to assess the nature and severity of this permanent impairment. In a separate decision, the Disability Awards will rate their impairment according to a schedule and award the worker Permanent Functional Impairment pension in a “Permanent Functional Impairment Decision.” The Permanent Functional Impairment pension is awarded regardless of whether the worker returns to work or not, as it is compensation for the permanent physical impairment, not direct compensation for lost wages.

The plateau decision also sets out whether the Board thinks that the worker can return to their pre-injury job, performing full duties, with the impairment. If the worker can return to their pre-injury work, the Board does not need to retrain him and there is no referral made to vocational rehabilitation.

However, if the Board considers that the worker cannot return to full duties with their impairment, the “plateau decision” will state this and the worker will be referred to vocational rehabilitation for further help with employment.

The vocational rehabilitation process is set out below and goes through five phases:

* '''Phase one''': Tries to have the worker return to the same job with the same employer.
* '''Phase two''': If unable to return to the same employer, works with the worker and employer to modify the job or identify job opportunities within the same company.
* '''Phase three''': If unable to return to the same company, tries to help identify suitable job options related to the worker’s experience and skills.
* '''Phase four''': If the worker is unable to return to the suitable work in the same or related industry, tries to help the worker to identify options in other industries.
* '''Phase five''': If the worker needs additional skills in order to return to suitable work, may cover the cost of training to help develop skills.

The first phase is to see if the employer can or will accommodate the worker and their impairment. If there is no accommodation and the worker does not have a job to return to, vocational rehabilitation goes through further phases to assesses what vocational rehabilitation assistance the Board should provide to help the worker become employable, given their permanent injury. Vocational rehabilitation benefits are discretionary but typically include a vocational rehabilitation plan for the worker to re-train and/or have a job search and wage-loss benefits for this period of vocational rehabilitation time. If successful, vocational rehabilitation results in the injured worker successfully adapting to employment with a permanent injury.

It is possible that vocational rehabilitation is not successful or that a seriously injured worker is simply too disabled to ever be competitively employable.

== B. Short-Term and Long-Term Average Earnings and Wage Rates ==

When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All wage-loss related benefits (e.g., loss of earnings, permanent functional disability, and temporary wage loss) are paid according to these rates. If you or your client believe that the benefits do not accurately reflect the pre-injury income, it is vital that you try to correct this as soon as possible.

At the beginning of the claim, the Board sets a short-term wage rate. After 10 weeks, if the worker is still on benefits, the Board sets a long-term wage rate. Both the short-term wage rate and longterm wage rate are set at 90% of net earnings, but the calculation of these earnings are different (in most cases) for the two wage rates.

A worker’s short-term and long-term wage rates are based on a determination of “average earnings” for the worker. This determination is a complicated and fact-specific process. There is an entire chapter of the RSCM II devoted to policies surrounding the determination of a worker’s average earnings (RSCM II Chapter 9 – Average Earnings). See below for further details.

The general rule for determining a worker’s short-term average earnings is to take the worker’s earnings as of the date of the injury. For example, if a worker makes $100 per day at the date of the injury, their average earnings will be set at $100 per day. However, this is not an appropriate measure for workers who do not work regular hours. Workers with variable earnings, with more than one job, and several other specific circumstances, will have their short-term average earnings determined in respect of a certain period of time (e.g., over three months prior to the accident) rather than in respect of the date of the accident. (See RSCM II, Policies #64.00–65.05.)

The general rule for determining a worker’s long-term average earnings is to obtain the worker’s earning and tax status for the 12 months preceding the injury and base the average earnings for the worker on that information.

For both short-term and long-term average earnings, there are exceptions to the above general rules. The exceptions apply workers with a casual pattern of employment, self-employed workers, workers with no earnings, volunteer workers, volunteer firefighters, workers in catholic institutions, emergency services workers, apprentices, workers employed for less than 12 months, and workers in “exceptional circumstances” (see RSCM II, Policies # 67.00 – 67.60).

For example, where the Board decides that a worker has a casual pattern of employment, the short-term average earnings will be based on that worker’s earnings over the immediately preceding 12 months of employment. Essentially, this means there is no “short-term” wage rate review, only the “long-term” wage rate. The result is that a “casual worker” who is earning a good wage at the time of the accident will likely be eligible for less compensation during the initial payment period than their counterpart in a “permanent” job. Where the “casual worker” designation has been made in the short-term wage rate decision but is not correct, this may be an important appeal issue.

Note that Practice Directive #C9-9 currently describes a two-step investigation procedure to determine whether a worker's pattern of employment is casual in nature. If the job at the time of injury is scheduled to last for three months or longer, the worker will not be considered a casual worker. If the job is scheduled to last for less than three months, the worker may be considered a casual worker if they have a history of short-term jobs (less than three months in length) with significant absences from employment between them (greater than the time spent employed). However, as Practice Directives are updated and changed on a regular basis, the electronic version should be consulted.

Another example is a “new” worker, defined as when the worker was permanently employed by the employer for less than 12 months before the injury. For this type of worker, section 217 of the WCA [Former Act, s. 33.3] allows the average earnings to be calculated based on what a person of similar status employed in the same type and classification of employment would earn in 12 months. However, section 217 is not applicable where the worker’s employment is deemed casual or temporary.

Under section 218 of the Act [Former Act, s. 33.4], the Board may also determine average earnings differently in “exceptional” circumstances, if the one-year average would be “inequitable.” This provision does not apply to cases of “casual” workers or to “new” permanent workers as described above. Practice Directive #C9-12 states that an exceptional case is one that is “truly extraordinary,” “unusual,” or “irregular,” such that “the worker’s circumstances in the year prior to the injury fail to provide any meaningful measure of their employment history.” Examples might include a non-compensable illness or injury, or maternity/paternity obligations. Under this exception, an officer has discretion to seek a long-term average earnings figure that better reflects the worker’s real income loss, possibly by excluding a significant atypical disruption (i.e., one lasting more than six weeks) or basing the worker’s “average earnings” on a longer or shorter period of time.

Under WCA s. 208(4) [Former Act, s. 33(3.2)], EI benefits are included in the calculation of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an occupation or industry that results in recurring seasonal or recurring temporary interruptions of work.” For a seasonal worker, this is an important distinction. For example, consider a worker injured at work in their first week after returning from a six-month layoff. If this worker were designated as a “casual worker,” the Board would simply calculate their earnings over the last year (including the period of the long layoff, but ''without'' counting EI payments) to arrive at the “average earnings” over the oneyear period before the injury. This figure would set both their short-term wage rate and long-term wage rate, and the only argument for a higher rate would be through the exceptional circumstances covered by section 218 of the ''Act''. However, if the worker is found to be in a “highly seasonal” occupation, their EI benefits would add to the calculations of their “average earnings,” and greatly increase their long-term wage rate. In addition, their short-term wage rate (for the first 10 weeks) would be set in the usual manner as being their wages at the time of injury.

Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on their '''combined''' earnings at both jobs, up to the statutory maximum. This applies even if the worker’s other job is not otherwise protected by the WCA (RSCM II Policy #65.02).

In addition to determining the appropriate period of time over which to “average” earnings, the Board will also consider what income should or should not be included in that average. These policies are set out at RSCM II Policies #68.00–68.90, and include topics such as overtime, termination pay, salary increases, benefit plans, strike pay, fishers, and others.

Note also that the WCA places a cap on wage rates that is set out at Policy #69.00 of the RSCM II.

Once the appropriate averaging period and included income amounts have been determined and averaged, deductions are applied so that the worker is receiving wage rates based on their net (or take-home) pay, rather than their gross pay. To calculate the worker’s average net earnings, the Board deducts probable EI premiums, probable CPP contributions, and probable income tax. These amounts are estimated, not calculated specifically for the worker (see RSCM II, Policy #71.00).

To do this, the Board establishes a schedule of deductions that apply to short-term average net earnings and long-term average net earnings (see RSCM II, Policies #71.10 and 71.20). For short-term average net earnings, the board applies the scheduled amount of CPP and EI deductions according to the worker’s average earnings. The Board will then deduct income tax based on the following credits: the basic personal amounts multiplied by 1.5, and the credits for CPP and EI contributions.

This will mean that individuals who have dependents or other significant tax credits will end up with a net average earnings amount that may not accurately approximate their actual net earnings. However, this is only an issue for the short-term rate.

For long-term average earnings, the Board applies formulas that reflect federal and provincial tax rates and the level of CPP and EI contributions for the immediately preceding calendar year. CPP and EI contributions are determined in a similar manner as in the short-term calculation, and do not necessarily reflect the actual CPP and EI contributions deducted from the worker. However, in estimating tax deductions, the Board will apply the basic personal amounts, EI and CPP credits, and spousal/dependent and/or caregiver credits.

In addition to Chapter 9 of the RSCM II, there are currently 11 practice directives that apply to the calculation of a worker’s average earnings and average net earnings. Rather than summarize this complexity, it is best to recognize that the Board’s long-term wage rate decision is based on an “average earnings” decision, and that the “average earnings” decision is important to review on its particular facts.

Wage rates are established based on the worker’s short-term or long-term average net earnings. The worker receives a wage rate based on 90% of their average net earnings. So, once the short-term or long-term average net earnings have been calculated as above, the wage rate paid to the worker will be 90% of that amount.

Once the long-term wage rate is set, the Board uses this long-term wage rate figure to calculate the amount of any awarded WCB benefits, including pensions, on that worker’s claim, for the life of the claim, except in the case of “re-openings” (see below).

Finally, for ongoing benefits, such as pensions, while the initial amount is determined on the basis of the long-term wage rate, the benefit itself is adjusted annually according to inflation, at a rate 1- percent less than the actual inflation rate with a 4-percent cap on inflation adjustments, regardless of whether the actual inflation rate is higher. This applies to all workers, including those injured before June 30, 2002.

=== 1. Recurrence or Deterioration and Wage Rates ===

A claim may be “re-opened” if a worker suffers a new period of temporary disability and/or an increased degree of permanent disability from a recurrence or deterioration of a previously accepted condition.

Under s. 229(1) of the ''Act'' [Former Act, s. 35.1(8), a recurrence of an injury is treated as a new injury for any new period of temporary disability. In addition, if the re-opening is more than 3 years after the initial injury, the Board may reset the long-term wage rate for the purpose of calculating additional benefits under the re-opening.

The applicable policy on re-setting long-term wage rates for re-openings over 3 years is Policy #70.20 of the RSCM II. This policy is complex, and it is best to consult this policy in light of the particular facts of each case. This policy affects all workers with long-term disabilities, where their condition recurs or deteriorates.

The re-opening provisions also have particular significance if the worker was injured prior to June 30, 2002, where the long-term wage rate was calculated as 75% of gross earnings and the definition of “average earnings” was different. This worker’s re-opening benefits would be calculated under the new policy provisions (90% of net average earnings).

It should be noted that a “recurrence” must be distinguished from a “deterioration.” In [https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc722/2006bcsc722.html?autocompleteStr=Cowburn%2520v%2520Worker%25E2%2580%2599s%2520Compensation%2520Board%2520of%2520British%2520Columbia%252C%25202006%2520BCSC%2520722&autocompletePos=1 ''Cowburn v Worker’s Compensation Board of British Columbia'', 2006 BCSC 722], the court found that it was patently unreasonable to treat a deterioration of a worker’s disability as a recurrence of an injury. Accordingly, when a worker’s permanent disability that began before June 30, 2002 becomes worse, the increased benefits are based on the older provisions that were in force when the disability first arose (such as pension entitlement). However, a new applicable wage rate may still have to be determined under policy #70.20.

== C. Temporary Wage-Loss Benefits ==

The WCA does not define “disability,” although it uses this term throughout the ''Act''. Section 191(1) of the Act [Former Act, s. 29(1)] states that if a worker has a temporary total disability (“'''TTD'''”), the Board must pay full temporary wage-loss benefits (calculated according to the steps above). Section 192 of the ''Act'' [Former Act, s. 30] states that if a worker has a temporary partial disability (“'''TPD'''”), the Board must pay the difference between the worker’s average net earnings before the injury and either their average net earnings after the injury or the average net earnings in some deemed “suitable” occupation.

If a worker has an injury but can perform the full duties of the pre-injury job, the claim is accepted for health care benefits only (see below). If the injury is such that the worker cannot perform full duties, the Board makes an entitlement decision on an accepted claim regarding additional benefits, especially wage loss. For most claims, the Board finds that there is some type of temporary disability:

* Temporary Total Disability: not working at all – temporary wage-loss benefits paid under s. 191 of the Act [Former Act, s. 29] (see RSCM II, Policy #34.10);
* Temporary Partial Disability: working part-time at a suitable occupation or deemed suitable occupation, and paid partial temporary wage-loss benefits under s. 192 of the Act [Former Act, s. 30] (See RSCM II, Policy #35.10); or
* Temporary Disability with Light Duties: working full-time in suitable light duties as per RSCM II Policy #34.11. In this case, the Board usually does not pay the worker any temporary wage-loss benefits, but the worker’s other benefit entitlement (such as health care) is adjudicated under s. 192 of the Act. Policy #34.11 applies to any adjudication of these light duties, including where the worker refuses light duties on the grounds that they are unreasonable.

:'''NOTE''': Light duties are meant to be a temporary arrangement during a period of temporary disability. Even though no temporary wage-loss benefit is paid to a worker, it is still an accepted period of “disability” under the ''Act''. During this period, a worker is entitled not only to health care benefits, but also to a decision regarding the outcome of the accepted condition. All periods of “light duty” should conclude with a formal “resolve” or “plateau” decision.

There are a number of RSCM II policies that apply to temporary wage-loss benefits as set out in Chapter 5 – Wage-Loss Benefits. Some key issues covered by those policies include:

* a worker who, while already permanently disabled, suffers a new work injury or relapse (#34.12);
* the minimum level of compensation payable for TTD and TPD wage-loss benefits (#34.20 and #35.23);
* starting date for benefit payments (#34.30);
* strikes or lay-offs (#34.32); and
* vacation or termination pay (#34.41 and 34.42).

A temporary disability ceases when the worker’s medical condition either resolves entirely or is not expected to change significantly in the next 12 months. At this point, the medical condition is said to have “plateaued” and is considered permanent (see RSCM II, Policy #34.54). In either case, the Board ceases to pay further temporary wage-loss benefits under ss. 191 or 192 of the ''Act'' [Former Act, s. 29 or 30] at this point.

== D. Health Care Benefits ==

Health care benefits are payable under ss. 156–161 of the ''Act'' [Former Act, s. 21] for the period of the worker’s disability, and thereafter to “cure and relieve from the effects of the injury or alleviate those effects.” Chapter 10 of the RSCM II greatly expands the Board’s regulation and control of particular health care benefits including all forms of treatment, medical investigation with specialists, medical aids, and medications. As noted above, if a worker has an impairment but can perform their full pre-injury job, the claim is accepted for health care benefits only (as long as there is a short episode of disability: see RSCM II, Policy #33.00).

Once an injured worker has reached the “resolve/plateau” point of their injury, they then receive a permanent disability assessment. This may be an issue for workers who are able to return to work with permanent injuries, especially in accommodated positions. Such a worker may be suffering from the effects of their injury but are not considered “disabled.” They are entitled to ongoing treatment under ss. 156–161 of the ''Act''. Where a worker is denied but disagrees with the result, they may appeal to obtain such benefits.

The Board must pay for necessary medical treatment, including physicians and hospital bills, physiotherapy, drugs, artificial limbs, hearing aids, and special transportation. Allowances for personal care and for structural alterations to the home may also be paid to paraplegics and other severely disabled workers. Practice directive #C10-1 addresses pain medication, sedatives, and hypnotics. Compensation for prescribed opioids and other potentially addictive medications are generally limited to four weeks coverage

WorkSafeBC adjudicates coverage for cannabis in the same manner as it does other requests for health care. Payment for cannabis may be approved where the evidence supports that it is reasonably necessary to alleviate the effects of a compensable condition (Practice Directive #C10-5).

The Board has the right to supervise a worker’s treatment (Act, ss. 156-161 [Former Act, s. 21]) and to authorize any surgery. If a worker decides to undergo surgery or other treatment that is not authorized by the Board, the costs may not be paid, and if the injury is worsened by the treatment, benefits may be cut off or reduced. The Board usually agrees to pay for surgery recommended by the worker’s own doctor, but the doctor should ask for the Board Advisor’s approval. The Board often refuses to pay for drugs or physiotherapy considered unnecessary by its advisors. Medical Aid decisions can be appealed.

== E. Income Continuity Benefits ==

Although classified as vocational rehabilitation benefits (described below), income continuity benefits are payments to provide interim support for the worker after temporary wage-loss benefits are terminated at plateau, but before the amount of a permanent disability pension is determined. A worker’s advocate should always request these benefits as they are often the only source of income that a worker will have between the time the worker’s condition stabilizes and the time the pension benefits are assessed. These are short-term, temporary benefits.

If a worker refuses employment or to participate in a Board issued vocational rehabilitation plan, they may be refused income-continuity benefits. See Item C11-89.10 of the RCSM II for more information regarding the assessment of income continuity benefits.

== F. Vocational Rehabilitation Benefits ==

The Board usually assesses whether a worker needs assistance to return to work at or near the end of their temporary disability. If the worker has a permanent impairment and is not able to safely return to work without assistance, they are referred to Vocational Rehabilitation.

If a worker is struggling or unsafe near the end of the period of wage loss, an advocate should review the file to ensure a referral to vocational rehabilitation is made. If there is no referral, the advocate may make a direct request to the Case Manager and/or appeal the “resolve” or “plateau” decision on the basis that these decisions do not contain a vocational rehabilitation referral, when one is needed. Items C11-85.00 and C11-86.00 of the RSCM II set out the principles, goals, and eligibility criteria for vocational rehabilitation benefits.

Once a vocational rehabilitation referral is made, the Board may provide a large variety of vocational rehabilitation services to injured workers. These are discretionary benefits under s. 155 of the ''Act'' [Former Act, s. 16], governed by the policy set out in Chapter 11 of the RSCM II. Generally, the extent of vocational rehabilitation services depends on the nature of the worker’s disability.

The policy requires that the assigned Vocational Rehabilitation Consultant consult with the worker and issue a written vocational rehabilitation plan identifying a suitable occupational goal and the vocational rehabilitation services required.

In identifying a suitable vocational rehabilitation plan, the vocational rehabilitation consultant works through five vocational rehabilitation phases, set out in RSCM II, Items C11-85.00 to C11-91.00. In fatal cases, a surviving spouse may be eligible for retraining.

In brief, the phases are:

* '''Phase One''': The vocational rehabilitation consultant will make an effort to assist the worker to return to the same job with the same employer (the “accident employer”). This may require some phased-in work programs such as a gradual return to work or work conditioning.
* '''Phase Two''': If the worker cannot return to the same job, the vocational rehabilitation consultant works with the accident employer to make worksite accommodations and job modifications, or to provide alternative in-service placement, with a view to finding the worker a new position within the accident employer’s business.
* '''Phase Three''': If the employer is unable or unwilling to accommodate the worker, the vocational rehabilitation consultant identifies suitable occupational options in the same or related industry. This may require the worker to obtain additional skills or training or to be supported in periods of job search.
* '''Phase Four''': If the worker is unable to return to employment in the same or related industry, the vocational rehabilitation consultant explores opportunities in all industries, with emphasis placed on the worker’s transferable skills, aptitudes, and interests.
* '''Phase Five''': If the worker’s existing skills are insufficient, the vocational rehabilitation consultant may utilize additional training programs to help the worker acquire new skills, and may also assist the worker in a job search once training is complete.

The particular vocational rehabilitation benefits which are authorized for the worker are detailed in the formal vocational rehabilitation plan, which should be provided to the worker. The worker’s vocational rehabilitation plan is first published as a document, discussed with the worker, and then is set out in a formal appealable decision.

Vocational rehabilitation services can include:

* monthly compensation (in the same amount as wage-loss benefits) to support a worker during a rehabilitation program;
* payment of tuition, books, and other costs of the course itself;
* employability assessments;
* a job search allowance (also in the same amount as wage-loss benefits) to support the worker while looking for suitable employment if they cannot return to the pre-injury job; and
* a training on the job allowance or wage subsidy to encourage an employer to allow the worker to learn new employment skills or gain experience in a new field.

In practice, the Board will only issue one vocational rehabilitation plan and ask the worker to agree to it. The plan must be reasonable. If the worker thinks a vocational rehabilitation plan is not reasonable, they should appeal the vocational rehabilitation decision setting out the vocational rehabilitation plan and ask for a new plan, being as specific as possible as to why the vocational rehabilitation plan is unreasonable, and if possible, what a reasonable vocational rehabilitation plan may be.

If a worker is cooperating with vocational rehabilitation re-training, they should continue to receive benefits at the full wage-loss rate. If a worker is appealing a vocational rehabilitation plan as unreasonable, the worker may wish to keep cooperating with the challenged vocational rehabilitation plan during the appeal period in order to continue receiving benefits.

Vocational rehabilitation benefits, under a formal vocational rehabilitation plan, may be terminated for reasons set out in Item C11-88.00 of the RSCM II. These reasons include if the worker is not cooperating, if they withdraw for personal reasons, if they refuse suitable employment, or if they are prevented from participating by non-compensable medical, psycho-social, or financial problems. If the worker believes that the Board’s reasons for terminating vocational rehabilitation benefits are inaccurate or wrong, the termination decision should be appealed. This is particularly important if the worker is failing in vocational rehabilitation due to some aspect of their medical condition.

At the end of the vocational rehabilitation process, the vocational rehabilitation consultant issues a decision about the worker’s future earning capacity in a suitable occupation, and whether vocational rehabilitation has restored it to near its pre-injury level. Based on this decision, the Board then determines whether the worker should be considered for a loss of earnings pension.

'''Only the WCB’s Review Division can review rehabilitation decisions; The Review Division decisions on vocational rehabilitation cannot be appealed to the Workers’ Compensation Appeal Tribunal (WCA, s. 288(2) [Former Act, s. 230(2)]).'''

While the Board routinely relies on the vocational rehabilitation consultant’s decision regarding the worker’s employability, WCAT may not consider these vocational rehabilitation decisions as binding on them when adjudicating a loss of earnings pension issue on appeal. For example, a vocational rehabilitation consultant may find that a worker can adapt to working full-time in a particular occupation. If the worker disagrees about this decision, the worker may raise this issue and provide evidence about disability in their appeal of a denial of a loss of earnings pension, both at the Review Division and WCAT. WCAT does, on occasion, make decisions that essentially overturn a Review Division finding as to the employability of a particular worker. However, on judicial review, this may lead to difficulties as it can be argued that WCAT’s decision was made without jurisdiction.

:'''NOTE''': Many difficulties in this area arise from different concepts of disability and employability. The Board tends to assess a worker’s permanent disability in terms of impairment and to limit its assessment of impairment to “medical restrictions and limitations” (“R&Ls”),i.e., specific activities which the worker cannot do or should not do at all because of potential harm. R&Ls may or may not include other aspects of limited ability such as tolerance or endurance (such as an inability to sit for more than 10 minutes) which are key elements of work function. Also, disabled workers often face discrimination and other barriers to employment. Court decisions have been clear that vocational rehabilitation processes must address the whole worker, including any pre-existing disabilities or factors affecting employment ([https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1209/2011bcsc1209.html?autocompleteStr=2011%2520BCSC%25201209&autocompletePos=1 ''Young v WCAT'', 2011 BCSC 1209]), but this remains a contentious area and one that the Board does not consider part of the “compensable” condition

== G. Permanent Disability Pensions ==

Once a worker’s condition has stabilized or “plateaued,” i.e., is not likely to get significantly better or worse in the next 12 months, temporary wage-loss benefits will cease. If the worker continues to have some disability, they will be assessed for a permanent disability pension. A disability pension is possible if WCB determines that the worker has been left with a permanent disability.

A case manager will determine which conditions or injuries are permanent and refer the worker for assessment. Decisions not to refer a worker at all or to exclude certain injuries or conditions are appealable to the Review Division and, if necessary, to WCAT.

A WCB “pension” is how the Board compensates an injured worker for a permanent disability. There are two possible methods for calculating a pension – compensation for permanent functional impairment, or compensation for loss of earnings (detailed below). If a permanent partial disability is accepted, WorkSafeBC will consider '''both''' methods and select the method which will provide the '''larger award'''.

Workers who also qualify for Canadian Pension Plan (CPP) disability benefits will have one-half of those benefits deducted from their WCB pensions (this could amount to as much as $577 per month, half of the $1153 maximum currently payable by CPP). This deduction represents the employer’s share of the benefits paid for the same disability as the WCB claim. If a CPP pension is partly based on non-compensable disabilities, no deduction will be made for that portion of the CPP (See RSCM II, Item C6-36.10).

=== 1. Permanent or Partial Total Disability Benefits ===

When the Board determines that a worker has a permanent functional impairment, the Board must determine whether the functional impairment is a Permanent Total Disability (“'''PTD'''”) or aPermanentPartial Disability (“'''PPD'''”). Sometimes, this will be obvious, such as in cases of paraplegia or blindness. In other cases, the Board must conduct an assessment to determine the degree of impairment. If the impairment is 100%, the worker has a PTD. If it is anything less than 100%, the worker has a PPD. This is an important distinction, as PTD and PPD benefits are calculated under different sections of the ''Act'' and have different minimum payable amounts.

There are two methods used to calculate a worker’s degree of impairment: the functional impairment method – often referred to as the loss of function method (“'''LOF'''”) – or, the loss of earnings method (“'''LOE'''”).

The Board will consider both methods and will use the method that provides the highest award to the worker (Act, s. 195–196 [Former Act, s. 23]).

=== 2. Loss of Function Method ===

The LOF method compares the worker’s degree of physical impairment to that of a totally disabled person. The percentage of impairment is usually based on the RSCM’s Permanent Disability Evaluation Schedule (PDES). It is important to note that this is an objective measure, i.e., the amputation of a thumb would result in the same degree of impairment for a carpenter as for an accountant under the LOF method, even though it may be a far more disabling injury for the carpenter.

Generally, only disabilities that could reduce earning capacity receive compensation, and there are no payments for pain and suffering or loss of enjoyment of life. The Board’s policy manual contains detailed schedules of percentage of impairment for different types of disabilities. Types not listed are estimated, and there is usually some degree of discretion in the process.

Item C6-39.00 of the RSCM II says that the PDES is meant to be a guideline and not a rigid formula. The WCB is free to apply other variables in arriving at a final award, but they must relate to degree of impairment and not social or economic factors, or rules established in other jurisdictions. In practice, the PDES is applied with little discretion.

Note that loss of function awards for chronic pain are capped at 2.5% per area of pain (RSCM II, Item C6-39.10).

As stated above, if the LOF method leads to a finding that the worker is 100% disabled, they will be paid PTD benefits pursuant to s. 194 of the ''Act'' [Former Act, s. 22]. If the LOF method leads to a finding that the worker is less than 100% disabled, they will be paid PPD benefits pursuant to s. 195–196 of the ''Act'' [Former Act, s. 23].

Note that even if a worker is found to be 100% unemployable pursuant to the LOE method described below (i.e., their loss of earnings is complete), it does not necessarily make them 100% functionally disabled, because the LOE method may incorporate personal information about the worker (such as a criminal history) that makes the worker unemployable even though the injury did not cause a 100% functional impairment. As such, a 100% unemployable worker will still be paid benefits pursuant to s. 192 of the ''Act'' [Former Act, s. 30(2)].

=== 3. Loss of Earnings Method ===

The LOE method compares the long-term wage rate that a worker was able to earn per year before the injury to what the worker is able to earn after the injury, based on occupations that are suitable for and reasonably available to that worker. Unlike the objective LOF method, the subjective LOE method takes into account the specific worker. I.e., the LOE method would likely find that the loss of earnings related to an amputated thumb is greater for the carpenter than it is for the accountant, because the accountant can likely return to their pre-injury job, but the carpenter cannot.

Where workers are unable to replace their pre-injury earnings, the WCB often “deems” them capable of earning significantly more post-injury than they are actually earning or can earn following an injury. For example, a worker who cannot return to a pre-injury job that paid $4000 per month may find new employment for $2000 per month. Instead of accepting the worker’s own experience, the Board may decide that, over the long term, the worker can find a different kind of job that pays $3000 per month, and calculate the benefits accordingly. Instead of getting a loss of earnings pension representing the actual $2000 per month the worker is losing, they would receive a pension based on the $1000 the Board “deems” them to be losing.

Workers may disagree with Board decisions. Common situations are that the worker believes the Board has underestimated the extent of physical or psychological limitations they have due to their injury and/or pre-injury background, or underestimate the demands of the deemed occupations the Board says they can perform. Workers may also disagree with the assessment of what they are capable of earning over the long term in the deemed occupations, therein deeming them capable of theoretical earnings that exceed what is reasonably suitable and available for them. If a worker appeals a loss of earning decision, then they should provide evidence of why the decision should be changed.

== H. Benefits After Age 65 ==

Item C6-41.00 of the RSCM II states that payments for permanent disability pensions end at age 65 unless the WCB is satisfied that the worker would have retired at a later date. WCA s. 201(3) states that a determination as to whether a worker would have worked passed the age of 65 can be made by the Board after the individual reaches the age of 63. Note that this change was introduced in 2021 and, before that time, retirement age was assessed as of the date of the injury, regardless of the age of the worker.

At age 63, the worker is asked to provide independent verifiable evidence that they had plans to work beyond age 65. Elements that make up a plan would include a concrete pathway towards continued employment, as well as a financial need to remain in the workforce. This evidence can include the following:

* Names of the employer or employers the worker intends to work for after age 65, along with confirmation from the employer;
* A description of the type of employment the worker is going to perform, along with evidence showing the worker actually has the capacity to perform the work;
* Evidence from other professionals that it is normal to continue work beyond 65 in that profession. This would include retirement age set by unions; and
* Financial obligations of the worker or family, such as a mortgage or other debts.

== I. Benefits in Fatality Cases ==

When a worker is killed as a result of a workplace injury, dependants of that worker can apply to the Board for benefits. Dependants include family members that are dependent on the worker’s earnings, as well as a spouse, child, or parent that had a reasonable expectation of pecuniary benefit from the continued life of the worker (see RSCM II, Item C8-53.00).

A child eligible for compensation includes a child less than 19 years of age, a child of any age who had, at the date of the worker’s death, a physical or mental disability that resulted in the child being incapable of earning, and a child less than 25 years of age who attends a school.

Spousal benefits are not lost upon re-marriage, and survivors’ pensions are not terminated when the worker would have reached age 65 (see WCA, s. 168, as well as s. 225 for death before July 1, 1974; [Former Act, s. 19.1]).

Where death results from a compensable injury or industrial disease, the surviving dependents may receive lump-sum payments or monthly pensions based on the deceased worker’s earnings. These pensions cannot exceed the statutory maximum and are adjusted in accordance with changes in the Consumer Price Index. The amount of the pension for spouses without dependent children depends on the surviving spouse’s age (WCA, s. 170 [Former Act, s. 17(3)(d)]).

A separated spouse may receive benefits based on the amount of support the deceased worker would likely have contributed had they survived (s. 178; previously 17(9)). A common-law spouse is entitled to benefits after three years of cohabitation or after one year if there are children. However, compensation may not be paid, or may be reduced, if there is a separated spouse as well.

Benefits in fatality cases can be complex, particularly if any apportionment between dependants is required. Chapter 8 – Compensation on the Death of a Worker of the RSCM II should be consulted.

== J. Suspension of Benefits ==

Benefits may be suspended if:

* a worker persists in unsanitary or injurious practices, which tend to '''prevent or slow recovery''';
* a worker refuses to submit to medical or surgical treatment, which, in the opinion of the WCB, is '''reasonably essential''' in promoting recovery;
* a worker fails to attend a medical examination arranged by the Board; or
* a worker is in prison, in which case benefits will cease, or be paid to their dependents.

The Board may also divert compensation from a worker for the benefit of their dependents if the worker is not supporting them.

Under s. 153 of the WCA [Former Act, s. 57.1], the Board may withhold or reduce benefits for any period the worker does not provide the requested information (unless the Board finds that it was unclear in communicating the requirement, or erroneously concluded that the worker was being uncooperative). However, such benefits will be paid when the worker provides the necessary information.

== K. Emergency Assistance ==

Many workers need immediate income if they are waiting to be accepted, or their benefits have been disallowed or terminated. They should consider alternate sources: social assistance, which may provide a crisis grant for immediate temporary relief or longer-term relief if a decision is being appealed, EI sickness benefits, CPP disability pensions, any plans available through their place of work or union, ICBC (if an automobile was involved), or private disability insurance.

== L. “Resolved/Plateau” Decision Letters ==

There are other key decisions in a worker’s claim including the initial decision to accept or deny a claim and any vocational rehabilitation or pension decision. Additionally, it is important to note the decision that is issued at the end of a period of temporary disability. This decision, referred to as a “resolved/plateau” decision, usually includes several key decisions, each of which may be appealed. Briefly, the decisions usually embedded in the “resolve/plateau” decision include:

=== 1. Has the Worker’s Injury/Occupational Disease Stabilized? ===

The first key issue is an accurate medical assessment of the worker’s compensable condition at the critical point of a “resolve/plateau” decision. As noted above, if a work injury or Occupational Disease has resolved entirely, the Board issues a “resolve” decision and the claim file is closed. If the injury has only stabilized, then the Board issues (or should issue) a “plateau” decision. If the injury has not yet stabilized, the Board should continue to treat it as a temporary disability with temporary benefits (wage-loss and/or health care benefits).

An appealable matter arises if the Board issues a “resolve” decision but the worker or the medical evidence indicates that there are ongoing effects, conditions, or impairments from the injury (e.g., chronic pain). In this case, both the medical evidence and the Board’s adjudication should be assessed. The medical evidence should be assessed to determine if the compensable conditions are still temporarily disabling (i.e., the worker is not able to fully return to pre-injury work) so that the worker continues to be entitled to temporary ongoing benefits, or if the compensable conditions have reached a “plateau” as defined by RSCM II Policy #34.54 and the worker is entitled to a referral to Disability Awards and (sometimes) Vocational Rehabilitation.

The issue of “fully resolved” vs. having reached a plateau is a medical issue. “Fully resolved” means that there is no permanent or ongoing residue or impairment from the injury. If the claim is concluded on the basis that the compensable condition has “fully resolved,” then no further benefits flow and it will be very difficult to reopen the claim later. If the injury is not fully resolved medically,the file should not be closed. Just because a worker returns to pre-injury employment (with no disability so no wage loss), it does not mean that the injury is “fully resolved”; The injury may have stabilized into a permanent impairment that is not disabling. If the worker is issued a “resolve” letter and there are ongoing medical issues or symptoms, the “resolve” decision should be appealed.

If the condition has not resolved but you are unsure whether it is still a temporary or permanent disability, RSCM II Policy #34.54 gives the criteria for making a determination between temporary and permanent conditions in this context. Basically, the policy states that a medical condition is “stabilized” when there is little potential for improvement or where any changes are in keeping with the normal fluctuations for that condition. Most doctors know the term “plateau” in this sense, and the worker’s GP may well address this matter in the last report on the claim file (found in the medical section).

=== 2. Plateau Date ===

If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of “stabilizing,” “maximum medical recovery” (MMR) or “plateau.” You can assess whether this date is appropriate by considering:

* Have all the compensable conditions been considered?
* Is it appropriate given the criteria in RSCM II Policy #34.54 and the medical evidence?

'''Example''': If further treatment (physiotherapy or surgery) is likely to make a significant change in the worker’s condition within three months, then the condition should continue to be temporarily disabling and the worker should get temporary wage-loss benefits until then.

=== 3. Which Permanent Conditions are Accepted or Denied? ===

In the plateau decision letter, the Case Manager sets out which exact conditions are accepted as permanent. These permanent conditions may be somewhat different than those originally accepted on the claim. For example, if a worker falls and suffers multiple injuries, some of the injuries are likely to fully resolve (e.g., sprains) while others can potentially leave a residual impairment (e.g., broken leg which mostly heals but leaves the worker with a limp). Other injuries will leave a very significant permanent impairment (e.g., mild brain injury). It is also possible that the worker has developed additional conditions during the temporary period (e.g., infections, psychological conditions, chronic pain, addiction, etc.).

Typically, as a worker nears plateau, the Case Manager refers the claim to a Board Medical Advisor (BMA) to assess whether the worker has reached plateau, and to determine the likely plateau date and what permanent conditions should (and should not) be accepted on the claim. The BMA assessment may or may not be explicitly referenced in the plateau decision. The complete BMA opinion can be found as a “Clinical Opinion” in the medical section of the claim file.

=== 4. Accepted and Denied Conditions ===

It is '''very''' important to carefully assess which conditions are accepted and denied as permanent on the claim, as these conditions will likely govern all future benefits. All plateau decisions should include a referral to Disability Awards for assessment of the permanent disability.

The plateau decision may also set out why certain medical conditions are denied as compensable permanent conditions. For example, if the Board finds that the identified conditions have resolved and the worker disagrees, this is a very important appeal. Sometimes the medical evidence on the claim file is sufficient to establish that the condition has not resolved; If not, the worker will likely need additional medical evidence.

Another common reason for denying permanent conditions is that the Board considers that the conditions pre-existed the injury, and were not permanently aggravated by the injury, even if there was a temporary aggravation. There are two distinct types of pre-existing conditions:

* The pre-existing condition or disease was '''non-deteriorating''':
: As set out in RSCM II Item C3-16.00 for injury and Item C4-25.20 for Occupational Disease, if the post-plateau condition is not significantly worse than before the injury, then the condition was not permanently aggravated by the work injury/Occupational Disease. This is an issue for which medical records are important.

* The pre-existing condition or disease was '''deteriorating''':
: If the worker had a pre-existing deteriorating condition, the test is whether the work injury “accelerated, activated, or advanced” the condition more quickly than would have occurred in the absence of the work injury (RSCM II Item C3-16.00). The Board commonly denies permanent disability on the basis that it arises from a natural degeneration of a pre-existing condition such as degenerative disc disease or osteoarthritis.

=== 5. Missing Conditions ===

The plateau decision (accepted and denied conditions) may not fully encompass the medical conditions which are noted by the worker or by the medical practitioners. This is best seen by comparing the decision letter with the medical evidence. If the decision is silent on a medical condition, you can ask for a new or additional decision from a case manager. Alternatively, if you are appealing the plateau decision on other grounds, in the appeal you can ask for a remedy that additional conditions be accepted on the claim.

=== 6. Can the Worker Return to the Pre-Injury Job? ===

A case manager’s decision that a worker can return to their pre-injury job is considered to be a finding of fact and not an appealable decision. In the context of a plateau decision, this return-to-work finding means that the Board considers that the accepted permanent conditions do not impair or disable the worker from their pre-injury job.

If this is not the case, this is a very important issue to challenge. Since an appeal of a plateau decision often involves seeking additional temporary wage-loss benefits, a new plateau date, additional permanent conditions, etc., the return-to-work finding of fact can be addressed in the context of these additional issues.

However, if there are no other issues in the plateau decision other than this return-to-work finding, the plateau decision should be appealed on the grounds that the worker cannot return to their pre-injury job and is entitled to additional vocational rehabilitation benefits. Framing the appeal issue in this way ensures that the Review Division has an entitlement decision to address.

=== 7. Referral to Vocational Rehabilitation ===

If the Board finds that the worker cannot return to their pre-injury job, then the case manager will most often refer the case to vocational rehabilitation for vocational rehabilitation benefits.

{{LSLAP Manual Navbox|type=chapters1-7}}

Workers' Compensation Claim Benefits (7:XI)

2023-09-12T20:07:36Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

Once a claim has been accepted by the Board, the process then moves to a determination of what benefits should be paid to the injured worker.

Many RSCM II chapters apply to the adjudication of claim benefits. The most important chapters can be summarized as follows:

* Chapter 5 – Wage-Loss Benefits
* Chapter 6 – Permanent Disability Benefits
* Chapter 8 – Compensation on the Death of a Worker
* Chapter 10 – Health Care; and
* Chapter 11 – Vocational Rehabilitation Services

== A. Overview: Worker Disability and Compensation Benefits ==

Of the 100,000 workers injured on the job in BC every year, about half suffer minor or inconvenient injuries and return to their pre-injury employment in quick order. Most of these claims are accepted by the Board for health care benefits only (medical treatment, medication, etc.).

Of those workers whose injuries are more serious, there are several common profiles of disability and recovery. After a worker makes an application for a temporary disability, the Board determines whether the worker is totally temporarily disabled and, if so, pays full wage-loss benefits under Section 191 of the WCA [Former Act, s. 29]. If the worker is only partially temporarily disabled, i.e., they can work some hours or some duties, the Board will pay partial wage loss under Section 192 of the WCA [Former Act, s. 30].

The following examples are to illustrate common compensation benefits and scenarios for disability:

* The worker suffers a broken wrist in their dominant hand and cannot perform their job duties as a result. Their doctor recommends a certain number of weeks to recover after which they are cleared to return to work, full duties. The worker makes an application for compensation. If their claim is accepted, the Board sets a short-term wage rate on their claim (based on their average earnings) and the worker is paid temporary wage-loss benefits at this rate for their days of lost work. The Board also covers any health care costs such as treatment or medication. If there are no permanent medical consequences to this injury and the worker returns to work full duties, the Board issues a decision that the injury is “resolved,” and their claim is closed. The worker is not referred for any other benefits such as Disability Awards or Vocational Rehabilitation.
* The worker suffers a more serious injury to their hand (e.g., a crush injury). If their claim is accepted, they again receive temporary wage loss for their time away from work. However, after 10 weeks, the Board issues a new long-term wage rate based on a more complex formula in law and policy. At a discretionary point, the Board considers that the worker’s condition is no longer “temporary” and must make one of the following decisions about the worker’s medical condition. Either:

:(a) their injury has “resolved” with no permanent impairment and they can return to work and perform full duties. In this case (as above), the Board will issue a “resolve” decision ending their temporary wage-loss benefits and their file will be closed; or
:(b) their injury is not fully resolved, and they are left with some permanent functional impairment. In this case, the Board will issue a “plateau decision,” setting a date at which it considers that the worker’s condition is no longer temporary, but it has reached a medical “plateau” (that is, the condition will not significantly change in the next year). This “plateau” decision also ends temporary wage-loss benefits on the plateau date, but will also refer the worker to Disability Awards to assess the nature and severity of this permanent impairment. In a separate decision, the Disability Awards will rate their impairment according to a schedule and award the worker Permanent Functional Impairment pension in a “Permanent Functional Impairment Decision.” The Permanent Functional Impairment pension is awarded regardless of whether the worker returns to work or not, as it is compensation for the permanent physical impairment, not direct compensation for lost wages.

The plateau decision also sets out whether the Board thinks that the worker can return to their pre-injury job, performing full duties, with the impairment. If the worker can return to their pre-injury work, the Board does not need to retrain him and there is no referral made to vocational rehabilitation.

However, if the Board considers that the worker cannot return to full duties with their impairment, the “plateau decision” will state this and the worker will be referred to vocational rehabilitation for further help with employment.

The vocational rehabilitation process is set out below and goes through five phases:

* '''Phase one''': Tries to have the worker return to the same job with the same employer.
* '''Phase two''': If unable to return to the same employer, works with the worker and employer to modify the job or identify job opportunities within the same company.
* '''Phase three''': If unable to return to the same company, tries to help identify suitable job options related to the worker’s experience and skills.
* '''Phase four''': If the worker is unable to return to the suitable work in the same or related industry, tries to help the worker to identify options in other industries.
* '''Phase five''': If the worker needs additional skills in order to return to suitable work, may cover the cost of training to help develop skills.

The first phase is to see if the employer can or will accommodate the worker and their impairment. If there is no accommodation and the worker does not have a job to return to, vocational rehabilitation goes through further phases to assesses what vocational rehabilitation assistance the Board should provide to help the worker become employable, given their permanent injury. Vocational rehabilitation benefits are discretionary but typically include a vocational rehabilitation plan for the worker to re-train and/or have a job search and wage-loss benefits for this period of vocational rehabilitation time. If successful, vocational rehabilitation results in the injured worker successfully adapting to employment with a permanent injury.

It is possible that vocational rehabilitation is not successful or that a seriously injured worker is simply too disabled to ever be competitively employable.

== B. Short-Term and Long-Term Average Earnings and Wage Rates ==

When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All wage-loss related benefits (e.g., loss of earnings, permanent functional disability, and temporary wage loss) are paid according to these rates. If you or your client believe that the benefits do not accurately reflect the pre-injury income, it is vital that you try to correct this as soon as possible.

At the beginning of the claim, the Board sets a short-term wage rate. After 10 weeks, if the worker is still on benefits, the Board sets a long-term wage rate. Both the short-term wage rate and longterm wage rate are set at 90% of net earnings, but the calculation of these earnings are different (in most cases) for the two wage rates.

A worker’s short-term and long-term wage rates are based on a determination of “average earnings” for the worker. This determination is a complicated and fact-specific process. There is an entire chapter of the RSCM II devoted to policies surrounding the determination of a worker’s average earnings (RSCM II Chapter 9 – Average Earnings). See below for further details.

The general rule for determining a worker’s short-term average earnings is to take the worker’s earnings as of the date of the injury. For example, if a worker makes $100 per day at the date of the injury, their average earnings will be set at $100 per day. However, this is not an appropriate measure for workers who do not work regular hours. Workers with variable earnings, with more than one job, and several other specific circumstances, will have their short-term average earnings determined in respect of a certain period of time (e.g., over three months prior to the accident) rather than in respect of the date of the accident. (See RSCM II, Policies #64.00–65.05.)

The general rule for determining a worker’s long-term average earnings is to obtain the worker’s earning and tax status for the 12 months preceding the injury and base the average earnings for the worker on that information.

For both short-term and long-term average earnings, there are exceptions to the above general rules. The exceptions apply workers with a casual pattern of employment, self-employed workers, workers with no earnings, volunteer workers, volunteer firefighters, workers in catholic institutions, emergency services workers, apprentices, workers employed for less than 12 months, and workers in “exceptional circumstances” (see RSCM II, Policies # 67.00 – 67.60).

For example, where the Board decides that a worker has a casual pattern of employment, the short-term average earnings will be based on that worker’s earnings over the immediately preceding 12 months of employment. Essentially, this means there is no “short-term” wage rate review, only the “long-term” wage rate. The result is that a “casual worker” who is earning a good wage at the time of the accident will likely be eligible for less compensation during the initial payment period than their counterpart in a “permanent” job. Where the “casual worker” designation has been made in the short-term wage rate decision but is not correct, this may be an important appeal issue.

Note that Practice Directive #C9-9 currently describes a two-step investigation procedure to determine whether a worker's pattern of employment is casual in nature. If the job at the time of injury is scheduled to last for three months or longer, the worker will not be considered a casual worker. If the job is scheduled to last for less than three months, the worker may be considered a casual worker if they have a history of short-term jobs (less than three months in length) with significant absences from employment between them (greater than the time spent employed). However, as Practice Directives are updated and changed on a regular basis, the electronic version should be consulted.

Another example is a “new” worker, defined as when the worker was permanently employed by the employer for less than 12 months before the injury. For this type of worker, section 217 of the WCA [Former Act, s. 33.3] allows the average earnings to be calculated based on what a person of similar status employed in the same type and classification of employment would earn in 12 months. However, section 217 is not applicable where the worker’s employment is deemed casual or temporary.

Under section 218 of the Act [Former Act, s. 33.4], the Board may also determine average earnings differently in “exceptional” circumstances, if the one-year average would be “inequitable.” This provision does not apply to cases of “casual” workers or to “new” permanent workers as described above. Practice Directive #C9-12 states that an exceptional case is one that is “truly extraordinary,” “unusual,” or “irregular,” such that “the worker’s circumstances in the year prior to the injury fail to provide any meaningful measure of their employment history.” Examples might include a non-compensable illness or injury, or maternity/paternity obligations. Under this exception, an officer has discretion to seek a long-term average earnings figure that better reflects the worker’s real income loss, possibly by excluding a significant atypical disruption (i.e., one lasting more than six weeks) or basing the worker’s “average earnings” on a longer or shorter period of time.

Under WCA s. 208(4) [Former Act, s. 33(3.2)], EI benefits are included in the calculation of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an occupation or industry that results in recurring seasonal or recurring temporary interruptions of work.” For a seasonal worker, this is an important distinction. For example, consider a worker injured at work in their first week after returning from a six-month layoff. If this worker were designated as a “casual worker,” the Board would simply calculate their earnings over the last year (including the period of the long layoff, but ''without'' counting EI payments) to arrive at the “average earnings” over the oneyear period before the injury. This figure would set both their short-term wage rate and long-term wage rate, and the only argument for a higher rate would be through the exceptional circumstances covered by section 218 of the ''Act''. However, if the worker is found to be in a “highly seasonal” occupation, their EI benefits would add to the calculations of their “average earnings,” and greatly increase their long-term wage rate. In addition, their short-term wage rate (for the first 10 weeks) would be set in the usual manner as being their wages at the time of injury.

Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on their '''combined''' earnings at both jobs, up to the statutory maximum. This applies even if the worker’s other job is not otherwise protected by the WCA (RSCM II Policy #65.02).

In addition to determining the appropriate period of time over which to “average” earnings, the Board will also consider what income should or should not be included in that average. These policies are set out at RSCM II Policies #68.00–68.90, and include topics such as overtime, termination pay, salary increases, benefit plans, strike pay, fishers, and others.

Note also that the WCA places a cap on wage rates that is set out at Policy #69.00 of the RSCM II.

Once the appropriate averaging period and included income amounts have been determined and averaged, deductions are applied so that the worker is receiving wage rates based on their net (or take-home) pay, rather than their gross pay. To calculate the worker’s average net earnings, the Board deducts probable EI premiums, probable CPP contributions, and probable income tax. These amounts are estimated, not calculated specifically for the worker (see RSCM II, Policy #71.00).

To do this, the Board establishes a schedule of deductions that apply to short-term average net earnings and long-term average net earnings (see RSCM II, Policies #71.10 and 71.20). For short-term average net earnings, the board applies the scheduled amount of CPP and EI deductions according to the worker’s average earnings. The Board will then deduct income tax based on the following credits: the basic personal amounts multiplied by 1.5, and the credits for CPP and EI contributions.

This will mean that individuals who have dependents or other significant tax credits will end up with a net average earnings amount that may not accurately approximate their actual net earnings. However, this is only an issue for the short-term rate.

For long-term average earnings, the Board applies formulas that reflect federal and provincial tax rates and the level of CPP and EI contributions for the immediately preceding calendar year. CPP and EI contributions are determined in a similar manner as in the short-term calculation, and do not necessarily reflect the actual CPP and EI contributions deducted from the worker. However, in estimating tax deductions, the Board will apply the basic personal amounts, EI and CPP credits, and spousal/dependent and/or caregiver credits.

In addition to Chapter 9 of the RSCM II, there are currently 11 practice directives that apply to the calculation of a worker’s average earnings and average net earnings. Rather than summarize this complexity, it is best to recognize that the Board’s long-term wage rate decision is based on an “average earnings” decision, and that the “average earnings” decision is important to review on its particular facts.

Wage rates are established based on the worker’s short-term or long-term average net earnings. The worker receives a wage rate based on 90% of their average net earnings. So, once the short-term or long-term average net earnings have been calculated as above, the wage rate paid to the worker will be 90% of that amount.

Once the long-term wage rate is set, the Board uses this long-term wage rate figure to calculate the amount of any awarded WCB benefits, including pensions, on that worker’s claim, for the life of the claim, except in the case of “re-openings” (see below).

Finally, for ongoing benefits, such as pensions, while the initial amount is determined on the basis of the long-term wage rate, the benefit itself is adjusted annually according to inflation, at a rate 1- percent less than the actual inflation rate with a 4-percent cap on inflation adjustments, regardless of whether the actual inflation rate is higher. This applies to all workers, including those injured before June 30, 2002.

==== 1. Recurrence or Deterioration and Wage Rates ====

A claim may be “re-opened” if a worker suffers a new period of temporary disability and/or an increased degree of permanent disability from a recurrence or deterioration of a previously accepted condition.

Under s. 229(1) of the ''Act'' [Former Act, s. 35.1(8), a recurrence of an injury is treated as a new injury for any new period of temporary disability. In addition, if the re-opening is more than 3 years after the initial injury, the Board may reset the long-term wage rate for the purpose of calculating additional benefits under the re-opening.

The applicable policy on re-setting long-term wage rates for re-openings over 3 years is Policy #70.20 of the RSCM II. This policy is complex, and it is best to consult this policy in light of the particular facts of each case. This policy affects all workers with long-term disabilities, where their condition recurs or deteriorates.

The re-opening provisions also have particular significance if the worker was injured prior to June 30, 2002, where the long-term wage rate was calculated as 75% of gross earnings and the definition of “average earnings” was different. This worker’s re-opening benefits would be calculated under the new policy provisions (90% of net average earnings).

It should be noted that a “recurrence” must be distinguished from a “deterioration.” In [https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc722/2006bcsc722.html?autocompleteStr=Cowburn%2520v%2520Worker%25E2%2580%2599s%2520Compensation%2520Board%2520of%2520British%2520Columbia%252C%25202006%2520BCSC%2520722&autocompletePos=1 ''Cowburn v Worker’s Compensation Board of British Columbia'', 2006 BCSC 722], the court found that it was patently unreasonable to treat a deterioration of a worker’s disability as a recurrence of an injury. Accordingly, when a worker’s permanent disability that began before June 30, 2002 becomes worse, the increased benefits are based on the older provisions that were in force when the disability first arose (such as pension entitlement). However, a new applicable wage rate may still have to be determined under policy #70.20.

== C. Temporary Wage-Loss Benefits ==

The WCA does not define “disability,” although it uses this term throughout the ''Act''. Section 191(1) of the Act [Former Act, s. 29(1)] states that if a worker has a temporary total disability (“'''TTD'''”), the Board must pay full temporary wage-loss benefits (calculated according to the steps above). Section 192 of the ''Act'' [Former Act, s. 30] states that if a worker has a temporary partial disability (“'''TPD'''”), the Board must pay the difference between the worker’s average net earnings before the injury and either their average net earnings after the injury or the average net earnings in some deemed “suitable” occupation.

If a worker has an injury but can perform the full duties of the pre-injury job, the claim is accepted for health care benefits only (see below). If the injury is such that the worker cannot perform full duties, the Board makes an entitlement decision on an accepted claim regarding additional benefits, especially wage loss. For most claims, the Board finds that there is some type of temporary disability:

* Temporary Total Disability: not working at all – temporary wage-loss benefits paid under s. 191 of the Act [Former Act, s. 29] (see RSCM II, Policy #34.10);
* Temporary Partial Disability: working part-time at a suitable occupation or deemed suitable occupation, and paid partial temporary wage-loss benefits under s. 192 of the Act [Former Act, s. 30] (See RSCM II, Policy #35.10); or
* Temporary Disability with Light Duties: working full-time in suitable light duties as per RSCM II Policy #34.11. In this case, the Board usually does not pay the worker any temporary wage-loss benefits, but the worker’s other benefit entitlement (such as health care) is adjudicated under s. 192 of the Act. Policy #34.11 applies to any adjudication of these light duties, including where the worker refuses light duties on the grounds that they are unreasonable.

:'''NOTE''': Light duties are meant to be a temporary arrangement during a period of temporary disability. Even though no temporary wage-loss benefit is paid to a worker, it is still an accepted period of “disability” under the ''Act''. During this period, a worker is entitled not only to health care benefits, but also to a decision regarding the outcome of the accepted condition. All periods of “light duty” should conclude with a formal “resolve” or “plateau” decision.

There are a number of RSCM II policies that apply to temporary wage-loss benefits as set out in Chapter 5 – Wage-Loss Benefits. Some key issues covered by those policies include:

* a worker who, while already permanently disabled, suffers a new work injury or relapse (#34.12);
* the minimum level of compensation payable for TTD and TPD wage-loss benefits (#34.20 and #35.23);
* starting date for benefit payments (#34.30);
* strikes or lay-offs (#34.32); and
* vacation or termination pay (#34.41 and 34.42).

A temporary disability ceases when the worker’s medical condition either resolves entirely or is not expected to change significantly in the next 12 months. At this point, the medical condition is said to have “plateaued” and is considered permanent (see RSCM II, Policy #34.54). In either case, the Board ceases to pay further temporary wage-loss benefits under ss. 191 or 192 of the ''Act'' [Former Act, s. 29 or 30] at this point.

== D. Health Care Benefits ==

Health care benefits are payable under ss. 156–161 of the ''Act'' [Former Act, s. 21] for the period of the worker’s disability, and thereafter to “cure and relieve from the effects of the injury or alleviate those effects.” Chapter 10 of the RSCM II greatly expands the Board’s regulation and control of particular health care benefits including all forms of treatment, medical investigation with specialists, medical aids, and medications. As noted above, if a worker has an impairment but can perform their full pre-injury job, the claim is accepted for health care benefits only (as long as there is a short episode of disability: see RSCM II, Policy #33.00).

Once an injured worker has reached the “resolve/plateau” point of their injury, they then receive a permanent disability assessment. This may be an issue for workers who are able to return to work with permanent injuries, especially in accommodated positions. Such a worker may be suffering from the effects of their injury but are not considered “disabled.” They are entitled to ongoing treatment under ss. 156–161 of the ''Act''. Where a worker is denied but disagrees with the result, they may appeal to obtain such benefits.

The Board must pay for necessary medical treatment, including physicians and hospital bills, physiotherapy, drugs, artificial limbs, hearing aids, and special transportation. Allowances for personal care and for structural alterations to the home may also be paid to paraplegics and other severely disabled workers. Practice directive #C10-1 addresses pain medication, sedatives, and hypnotics. Compensation for prescribed opioids and other potentially addictive medications are generally limited to four weeks coverage

WorkSafeBC adjudicates coverage for cannabis in the same manner as it does other requests for health care. Payment for cannabis may be approved where the evidence supports that it is reasonably necessary to alleviate the effects of a compensable condition (Practice Directive #C10-5).

The Board has the right to supervise a worker’s treatment (Act, ss. 156-161 [Former Act, s. 21]) and to authorize any surgery. If a worker decides to undergo surgery or other treatment that is not authorized by the Board, the costs may not be paid, and if the injury is worsened by the treatment, benefits may be cut off or reduced. The Board usually agrees to pay for surgery recommended by the worker’s own doctor, but the doctor should ask for the Board Advisor’s approval. The Board often refuses to pay for drugs or physiotherapy considered unnecessary by its advisors. Medical Aid decisions can be appealed.

== E. Income Continuity Benefits ==

Although classified as vocational rehabilitation benefits (described below), income continuity benefits are payments to provide interim support for the worker after temporary wage-loss benefits are terminated at plateau, but before the amount of a permanent disability pension is determined. A worker’s advocate should always request these benefits as they are often the only source of income that a worker will have between the time the worker’s condition stabilizes and the time the pension benefits are assessed. These are short-term, temporary benefits.

If a worker refuses employment or to participate in a Board issued vocational rehabilitation plan, they may be refused income-continuity benefits. See Item C11-89.10 of the RCSM II for more information regarding the assessment of income continuity benefits.

== F. Vocational Rehabilitation Benefits ==

The Board usually assesses whether a worker needs assistance to return to work at or near the end of their temporary disability. If the worker has a permanent impairment and is not able to safely return to work without assistance, they are referred to Vocational Rehabilitation.

If a worker is struggling or unsafe near the end of the period of wage loss, an advocate should review the file to ensure a referral to vocational rehabilitation is made. If there is no referral, the advocate may make a direct request to the Case Manager and/or appeal the “resolve” or “plateau” decision on the basis that these decisions do not contain a vocational rehabilitation referral, when one is needed. Items C11-85.00 and C11-86.00 of the RSCM II set out the principles, goals, and eligibility criteria for vocational rehabilitation benefits.

Once a vocational rehabilitation referral is made, the Board may provide a large variety of vocational rehabilitation services to injured workers. These are discretionary benefits under s. 155 of the ''Act'' [Former Act, s. 16], governed by the policy set out in Chapter 11 of the RSCM II. Generally, the extent of vocational rehabilitation services depends on the nature of the worker’s disability.

The policy requires that the assigned Vocational Rehabilitation Consultant consult with the worker and issue a written vocational rehabilitation plan identifying a suitable occupational goal and the vocational rehabilitation services required.

In identifying a suitable vocational rehabilitation plan, the vocational rehabilitation consultant works through five vocational rehabilitation phases, set out in RSCM II, Items C11-85.00 to C11-91.00. In fatal cases, a surviving spouse may be eligible for retraining.

In brief, the phases are:

* '''Phase One''': The vocational rehabilitation consultant will make an effort to assist the worker to return to the same job with the same employer (the “accident employer”). This may require some phased-in work programs such as a gradual return to work or work conditioning.
* '''Phase Two''': If the worker cannot return to the same job, the vocational rehabilitation consultant works with the accident employer to make worksite accommodations and job modifications, or to provide alternative in-service placement, with a view to finding the worker a new position within the accident employer’s business.
* '''Phase Three''': If the employer is unable or unwilling to accommodate the worker, the vocational rehabilitation consultant identifies suitable occupational options in the same or related industry. This may require the worker to obtain additional skills or training or to be supported in periods of job search.
* '''Phase Four''': If the worker is unable to return to employment in the same or related industry, the vocational rehabilitation consultant explores opportunities in all industries, with emphasis placed on the worker’s transferable skills, aptitudes, and interests.
* '''Phase Five''': If the worker’s existing skills are insufficient, the vocational rehabilitation consultant may utilize additional training programs to help the worker acquire new skills, and may also assist the worker in a job search once training is complete.

The particular vocational rehabilitation benefits which are authorized for the worker are detailed in the formal vocational rehabilitation plan, which should be provided to the worker. The worker’s vocational rehabilitation plan is first published as a document, discussed with the worker, and then is set out in a formal appealable decision.

Vocational rehabilitation services can include:

* monthly compensation (in the same amount as wage-loss benefits) to support a worker during a rehabilitation program;
* payment of tuition, books, and other costs of the course itself;
* employability assessments;
* a job search allowance (also in the same amount as wage-loss benefits) to support the worker while looking for suitable employment if they cannot return to the pre-injury job; and
* a training on the job allowance or wage subsidy to encourage an employer to allow the worker to learn new employment skills or gain experience in a new field.

In practice, the Board will only issue one vocational rehabilitation plan and ask the worker to agree to it. The plan must be reasonable. If the worker thinks a vocational rehabilitation plan is not reasonable, they should appeal the vocational rehabilitation decision setting out the vocational rehabilitation plan and ask for a new plan, being as specific as possible as to why the vocational rehabilitation plan is unreasonable, and if possible, what a reasonable vocational rehabilitation plan may be.

If a worker is cooperating with vocational rehabilitation re-training, they should continue to receive benefits at the full wage-loss rate. If a worker is appealing a vocational rehabilitation plan as unreasonable, the worker may wish to keep cooperating with the challenged vocational rehabilitation plan during the appeal period in order to continue receiving benefits.

Vocational rehabilitation benefits, under a formal vocational rehabilitation plan, may be terminated for reasons set out in Item C11-88.00 of the RSCM II. These reasons include if the worker is not cooperating, if they withdraw for personal reasons, if they refuse suitable employment, or if they are prevented from participating by non-compensable medical, psycho-social, or financial problems. If the worker believes that the Board’s reasons for terminating vocational rehabilitation benefits are inaccurate or wrong, the termination decision should be appealed. This is particularly important if the worker is failing in vocational rehabilitation due to some aspect of their medical condition.

At the end of the vocational rehabilitation process, the vocational rehabilitation consultant issues a decision about the worker’s future earning capacity in a suitable occupation, and whether vocational rehabilitation has restored it to near its pre-injury level. Based on this decision, the Board then determines whether the worker should be considered for a loss of earnings pension.

'''Only the WCB’s Review Division can review rehabilitation decisions; The Review Division decisions on vocational rehabilitation cannot be appealed to the Workers’ Compensation Appeal Tribunal (WCA, s. 288(2) [Former Act, s. 230(2)]).'''

While the Board routinely relies on the vocational rehabilitation consultant’s decision regarding the worker’s employability, WCAT may not consider these vocational rehabilitation decisions as binding on them when adjudicating a loss of earnings pension issue on appeal. For example, a vocational rehabilitation consultant may find that a worker can adapt to working full-time in a particular occupation. If the worker disagrees about this decision, the worker may raise this issue and provide evidence about disability in their appeal of a denial of a loss of earnings pension, both at the Review Division and WCAT. WCAT does, on occasion, make decisions that essentially overturn a Review Division finding as to the employability of a particular worker. However, on judicial review, this may lead to difficulties as it can be argued that WCAT’s decision was made without jurisdiction.

:'''NOTE''': Many difficulties in this area arise from different concepts of disability and employability. The Board tends to assess a worker’s permanent disability in terms of impairment and to limit its assessment of impairment to “medical restrictions and limitations” (“R&Ls”),i.e., specific activities which the worker cannot do or should not do at all because of potential harm. R&Ls may or may not include other aspects of limited ability such as tolerance or endurance (such as an inability to sit for more than 10 minutes) which are key elements of work function. Also, disabled workers often face discrimination and other barriers to employment. Court decisions have been clear that vocational rehabilitation processes must address the whole worker, including any pre-existing disabilities or factors affecting employment ([https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1209/2011bcsc1209.html?autocompleteStr=2011%2520BCSC%25201209&autocompletePos=1 ''Young v WCAT'', 2011 BCSC 1209]), but this remains a contentious area and one that the Board does not consider part of the “compensable” condition

== G. Permanent Disability Pensions ==

Once a worker’s condition has stabilized or “plateaued,” i.e., is not likely to get significantly better or worse in the next 12 months, temporary wage-loss benefits will cease. If the worker continues to have some disability, they will be assessed for a permanent disability pension. A disability pension is possible if WCB determines that the worker has been left with a permanent disability.

A case manager will determine which conditions or injuries are permanent and refer the worker for assessment. Decisions not to refer a worker at all or to exclude certain injuries or conditions are appealable to the Review Division and, if necessary, to WCAT.

A WCB “pension” is how the Board compensates an injured worker for a permanent disability. There are two possible methods for calculating a pension – compensation for permanent functional impairment, or compensation for loss of earnings (detailed below). If a permanent partial disability is accepted, WorkSafeBC will consider '''both''' methods and select the method which will provide the '''larger award'''.

Workers who also qualify for Canadian Pension Plan (CPP) disability benefits will have one-half of those benefits deducted from their WCB pensions (this could amount to as much as $577 per month, half of the $1153 maximum currently payable by CPP). This deduction represents the employer’s share of the benefits paid for the same disability as the WCB claim. If a CPP pension is partly based on non-compensable disabilities, no deduction will be made for that portion of the CPP (See RSCM II, Item C6-36.10).

=== 1. Permanent or Partial Total Disability Benefits ===

When the Board determines that a worker has a permanent functional impairment, the Board must determine whether the functional impairment is a Permanent Total Disability (“'''PTD'''”) or aPermanentPartial Disability (“'''PPD'''”). Sometimes, this will be obvious, such as in cases of paraplegia or blindness. In other cases, the Board must conduct an assessment to determine the degree of impairment. If the impairment is 100%, the worker has a PTD. If it is anything less than 100%, the worker has a PPD. This is an important distinction, as PTD and PPD benefits are calculated under different sections of the ''Act'' and have different minimum payable amounts.

There are two methods used to calculate a worker’s degree of impairment: the functional impairment method – often referred to as the loss of function method (“'''LOF'''”) – or, the loss of earnings method (“'''LOE'''”).

The Board will consider both methods and will use the method that provides the highest award to the worker (Act, s. 195–196 [Former Act, s. 23]).

=== 2. Loss of Function Method ===

The LOF method compares the worker’s degree of physical impairment to that of a totally disabled person. The percentage of impairment is usually based on the RSCM’s Permanent Disability Evaluation Schedule (PDES). It is important to note that this is an objective measure, i.e., the amputation of a thumb would result in the same degree of impairment for a carpenter as for an accountant under the LOF method, even though it may be a far more disabling injury for the carpenter.

Generally, only disabilities that could reduce earning capacity receive compensation, and there are no payments for pain and suffering or loss of enjoyment of life. The Board’s policy manual contains detailed schedules of percentage of impairment for different types of disabilities. Types not listed are estimated, and there is usually some degree of discretion in the process.

Item C6-39.00 of the RSCM II says that the PDES is meant to be a guideline and not a rigid formula. The WCB is free to apply other variables in arriving at a final award, but they must relate to degree of impairment and not social or economic factors, or rules established in other jurisdictions. In practice, the PDES is applied with little discretion.

Note that loss of function awards for chronic pain are capped at 2.5% per area of pain (RSCM II, Item C6-39.10).

As stated above, if the LOF method leads to a finding that the worker is 100% disabled, they will be paid PTD benefits pursuant to s. 194 of the ''Act'' [Former Act, s. 22]. If the LOF method leads to a finding that the worker is less than 100% disabled, they will be paid PPD benefits pursuant to s. 195–196 of the ''Act'' [Former Act, s. 23].

Note that even if a worker is found to be 100% unemployable pursuant to the LOE method described below (i.e., their loss of earnings is complete), it does not necessarily make them 100% functionally disabled, because the LOE method may incorporate personal information about the worker (such as a criminal history) that makes the worker unemployable even though the injury did not cause a 100% functional impairment. As such, a 100% unemployable worker will still be paid benefits pursuant to s. 192 of the ''Act'' [Former Act, s. 30(2)].

=== 3. Loss of Earnings Method ===

The LOE method compares the long-term wage rate that a worker was able to earn per year before the injury to what the worker is able to earn after the injury, based on occupations that are suitable for and reasonably available to that worker. Unlike the objective LOF method, the subjective LOE method takes into account the specific worker. I.e., the LOE method would likely find that the loss of earnings related to an amputated thumb is greater for the carpenter than it is for the accountant, because the accountant can likely return to their pre-injury job, but the carpenter cannot.

Where workers are unable to replace their pre-injury earnings, the WCB often “deems” them capable of earning significantly more post-injury than they are actually earning or can earn following an injury. For example, a worker who cannot return to a pre-injury job that paid $4000 per month may find new employment for $2000 per month. Instead of accepting the worker’s own experience, the Board may decide that, over the long term, the worker can find a different kind of job that pays $3000 per month, and calculate the benefits accordingly. Instead of getting a loss of earnings pension representing the actual $2000 per month the worker is losing, they would receive a pension based on the $1000 the Board “deems” them to be losing.

Workers may disagree with Board decisions. Common situations are that the worker believes the Board has underestimated the extent of physical or psychological limitations they have due to their injury and/or pre-injury background, or underestimate the demands of the deemed occupations the Board says they can perform. Workers may also disagree with the assessment of what they are capable of earning over the long term in the deemed occupations, therein deeming them capable of theoretical earnings that exceed what is reasonably suitable and available for them. If a worker appeals a loss of earning decision, then they should provide evidence of why the decision should be changed.

== H. Benefits After Age 65 ==

Item C6-41.00 of the RSCM II states that payments for permanent disability pensions end at age 65 unless the WCB is satisfied that the worker would have retired at a later date. WCA s. 201(3) states that a determination as to whether a worker would have worked passed the age of 65 can be made by the Board after the individual reaches the age of 63. Note that this change was introduced in 2021 and, before that time, retirement age was assessed as of the date of the injury, regardless of the age of the worker.

At age 63, the worker is asked to provide independent verifiable evidence that they had plans to work beyond age 65. Elements that make up a plan would include a concrete pathway towards continued employment, as well as a financial need to remain in the workforce. This evidence can include the following:

* Names of the employer or employers the worker intends to work for after age 65, along with confirmation from the employer;
* A description of the type of employment the worker is going to perform, along with evidence showing the worker actually has the capacity to perform the work;
* Evidence from other professionals that it is normal to continue work beyond 65 in that profession. This would include retirement age set by unions; and
* Financial obligations of the worker or family, such as a mortgage or other debts.

== I. Benefits in Fatality Cases ==

When a worker is killed as a result of a workplace injury, dependants of that worker can apply to the Board for benefits. Dependants include family members that are dependent on the worker’s earnings, as well as a spouse, child, or parent that had a reasonable expectation of pecuniary benefit from the continued life of the worker (see RSCM II, Item C8-53.00).

A child eligible for compensation includes a child less than 19 years of age, a child of any age who had, at the date of the worker’s death, a physical or mental disability that resulted in the child being incapable of earning, and a child less than 25 years of age who attends a school.

Spousal benefits are not lost upon re-marriage, and survivors’ pensions are not terminated when the worker would have reached age 65 (see WCA, s. 168, as well as s. 225 for death before July 1, 1974; [Former Act, s. 19.1]).

Where death results from a compensable injury or industrial disease, the surviving dependents may receive lump-sum payments or monthly pensions based on the deceased worker’s earnings. These pensions cannot exceed the statutory maximum and are adjusted in accordance with changes in the Consumer Price Index. The amount of the pension for spouses without dependent children depends on the surviving spouse’s age (WCA, s. 170 [Former Act, s. 17(3)(d)]).

A separated spouse may receive benefits based on the amount of support the deceased worker would likely have contributed had they survived (s. 178; previously 17(9)). A common-law spouse is entitled to benefits after three years of cohabitation or after one year if there are children. However, compensation may not be paid, or may be reduced, if there is a separated spouse as well.

Benefits in fatality cases can be complex, particularly if any apportionment between dependants is required. Chapter 8 – Compensation on the Death of a Worker of the RSCM II should be consulted.

== J. Suspension of Benefits ==

Benefits may be suspended if:

* a worker persists in unsanitary or injurious practices, which tend to '''prevent or slow recovery''';
* a worker refuses to submit to medical or surgical treatment, which, in the opinion of the WCB, is '''reasonably essential''' in promoting recovery;
* a worker fails to attend a medical examination arranged by the Board; or
* a worker is in prison, in which case benefits will cease, or be paid to their dependents.

The Board may also divert compensation from a worker for the benefit of their dependents if the worker is not supporting them.

Under s. 153 of the WCA [Former Act, s. 57.1], the Board may withhold or reduce benefits for any period the worker does not provide the requested information (unless the Board finds that it was unclear in communicating the requirement, or erroneously concluded that the worker was being uncooperative). However, such benefits will be paid when the worker provides the necessary information.

== K. Emergency Assistance ==

Many workers need immediate income if they are waiting to be accepted, or their benefits have been disallowed or terminated. They should consider alternate sources: social assistance, which may provide a crisis grant for immediate temporary relief or longer-term relief if a decision is being appealed, EI sickness benefits, CPP disability pensions, any plans available through their place of work or union, ICBC (if an automobile was involved), or private disability insurance.

== L. “Resolved/Plateau” Decision Letters ==

There are other key decisions in a worker’s claim including the initial decision to accept or deny a claim and any vocational rehabilitation or pension decision. Additionally, it is important to note the decision that is issued at the end of a period of temporary disability. This decision, referred to as a “resolved/plateau” decision, usually includes several key decisions, each of which may be appealed. Briefly, the decisions usually embedded in the “resolve/plateau” decision include:

=== 1. Has the Worker’s Injury/Occupational Disease Stabilized? ===

The first key issue is an accurate medical assessment of the worker’s compensable condition at the critical point of a “resolve/plateau” decision. As noted above, if a work injury or Occupational Disease has resolved entirely, the Board issues a “resolve” decision and the claim file is closed. If the injury has only stabilized, then the Board issues (or should issue) a “plateau” decision. If the injury has not yet stabilized, the Board should continue to treat it as a temporary disability with temporary benefits (wage-loss and/or health care benefits).

An appealable matter arises if the Board issues a “resolve” decision but the worker or the medical evidence indicates that there are ongoing effects, conditions, or impairments from the injury (e.g., chronic pain). In this case, both the medical evidence and the Board’s adjudication should be assessed. The medical evidence should be assessed to determine if the compensable conditions are still temporarily disabling (i.e., the worker is not able to fully return to pre-injury work) so that the worker continues to be entitled to temporary ongoing benefits, or if the compensable conditions have reached a “plateau” as defined by RSCM II Policy #34.54 and the worker is entitled to a referral to Disability Awards and (sometimes) Vocational Rehabilitation.

The issue of “fully resolved” vs. having reached a plateau is a medical issue. “Fully resolved” means that there is no permanent or ongoing residue or impairment from the injury. If the claim is concluded on the basis that the compensable condition has “fully resolved,” then no further benefits flow and it will be very difficult to reopen the claim later. If the injury is not fully resolved medically,the file should not be closed. Just because a worker returns to pre-injury employment (with no disability so no wage loss), it does not mean that the injury is “fully resolved”; The injury may have stabilized into a permanent impairment that is not disabling. If the worker is issued a “resolve” letter and there are ongoing medical issues or symptoms, the “resolve” decision should be appealed.

If the condition has not resolved but you are unsure whether it is still a temporary or permanent disability, RSCM II Policy #34.54 gives the criteria for making a determination between temporary and permanent conditions in this context. Basically, the policy states that a medical condition is “stabilized” when there is little potential for improvement or where any changes are in keeping with the normal fluctuations for that condition. Most doctors know the term “plateau” in this sense, and the worker’s GP may well address this matter in the last report on the claim file (found in the medical section).

=== 2. Plateau Date ===

If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of “stabilizing,” “maximum medical recovery” (MMR) or “plateau.” You can assess whether this date is appropriate by considering:

* Have all the compensable conditions been considered?
* Is it appropriate given the criteria in RSCM II Policy #34.54 and the medical evidence?

'''Example''': If further treatment (physiotherapy or surgery) is likely to make a significant change in the worker’s condition within three months, then the condition should continue to be temporarily disabling and the worker should get temporary wage-loss benefits until then.

=== 3. Which Permanent Conditions are Accepted or Denied? ===

In the plateau decision letter, the Case Manager sets out which exact conditions are accepted as permanent. These permanent conditions may be somewhat different than those originally accepted on the claim. For example, if a worker falls and suffers multiple injuries, some of the injuries are likely to fully resolve (e.g., sprains) while others can potentially leave a residual impairment (e.g., broken leg which mostly heals but leaves the worker with a limp). Other injuries will leave a very significant permanent impairment (e.g., mild brain injury). It is also possible that the worker has developed additional conditions during the temporary period (e.g., infections, psychological conditions, chronic pain, addiction, etc.).

Typically, as a worker nears plateau, the Case Manager refers the claim to a Board Medical Advisor (BMA) to assess whether the worker has reached plateau, and to determine the likely plateau date and what permanent conditions should (and should not) be accepted on the claim. The BMA assessment may or may not be explicitly referenced in the plateau decision. The complete BMA opinion can be found as a “Clinical Opinion” in the medical section of the claim file.

=== 4. Accepted and Denied Conditions ===

It is '''very''' important to carefully assess which conditions are accepted and denied as permanent on the claim, as these conditions will likely govern all future benefits. All plateau decisions should include a referral to Disability Awards for assessment of the permanent disability.

The plateau decision may also set out why certain medical conditions are denied as compensable permanent conditions. For example, if the Board finds that the identified conditions have resolved and the worker disagrees, this is a very important appeal. Sometimes the medical evidence on the claim file is sufficient to establish that the condition has not resolved; If not, the worker will likely need additional medical evidence.

Another common reason for denying permanent conditions is that the Board considers that the conditions pre-existed the injury, and were not permanently aggravated by the injury, even if there was a temporary aggravation. There are two distinct types of pre-existing conditions:

* The pre-existing condition or disease was '''non-deteriorating''':
: As set out in RSCM II Item C3-16.00 for injury and Item C4-25.20 for Occupational Disease, if the post-plateau condition is not significantly worse than before the injury, then the condition was not permanently aggravated by the work injury/Occupational Disease. This is an issue for which medical records are important.

* The pre-existing condition or disease was '''deteriorating''':
: If the worker had a pre-existing deteriorating condition, the test is whether the work injury “accelerated, activated, or advanced” the condition more quickly than would have occurred in the absence of the work injury (RSCM II Item C3-16.00). The Board commonly denies permanent disability on the basis that it arises from a natural degeneration of a pre-existing condition such as degenerative disc disease or osteoarthritis.

=== 5. Missing Conditions ===

The plateau decision (accepted and denied conditions) may not fully encompass the medical conditions which are noted by the worker or by the medical practitioners. This is best seen by comparing the decision letter with the medical evidence. If the decision is silent on a medical condition, you can ask for a new or additional decision from a case manager. Alternatively, if you are appealing the plateau decision on other grounds, in the appeal you can ask for a remedy that additional conditions be accepted on the claim.

=== 6. Can the Worker Return to the Pre-Injury Job? ===

A case manager’s decision that a worker can return to their pre-injury job is considered to be a finding of fact and not an appealable decision. In the context of a plateau decision, this return-to-work finding means that the Board considers that the accepted permanent conditions do not impair or disable the worker from their pre-injury job.

If this is not the case, this is a very important issue to challenge. Since an appeal of a plateau decision often involves seeking additional temporary wage-loss benefits, a new plateau date, additional permanent conditions, etc., the return-to-work finding of fact can be addressed in the context of these additional issues.

However, if there are no other issues in the plateau decision other than this return-to-work finding, the plateau decision should be appealed on the grounds that the worker cannot return to their pre-injury job and is entitled to additional vocational rehabilitation benefits. Framing the appeal issue in this way ensures that the Review Division has an entitlement decision to address.

=== 7. Referral to Vocational Rehabilitation ===

If the Board finds that the worker cannot return to their pre-injury job, then the case manager will most often refer the case to vocational rehabilitation for vocational rehabilitation benefits.

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Workers' Compensation Claim Benefits (7:XI)

2023-09-12T20:02:29Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
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Once a claim has been accepted by the Board, the process then moves to a determination of what benefits should be paid to the injured worker.

Many RSCM II chapters apply to the adjudication of claim benefits. The most important chapters can be summarized as follows:

* Chapter 5 – Wage-Loss Benefits
* Chapter 6 – Permanent Disability Benefits
* Chapter 8 – Compensation on the Death of a Worker
* Chapter 10 – Health Care; and
* Chapter 11 – Vocational Rehabilitation Services

== A. Overview: Worker Disability and Compensation Benefits ==

Of the 100,000 workers injured on the job in BC every year, about half suffer minor or inconvenient injuries and return to their pre-injury employment in quick order. Most of these claims are accepted by the Board for health care benefits only (medical treatment, medication, etc.).

Of those workers whose injuries are more serious, there are several common profiles of disability and recovery. After a worker makes an application for a temporary disability, the Board determines whether the worker is totally temporarily disabled and, if so, pays full wage-loss benefits under Section 191 of the WCA [Former Act, s. 29]. If the worker is only partially temporarily disabled, i.e., they can work some hours or some duties, the Board will pay partial wage loss under Section 192 of the WCA [Former Act, s. 30].

The following examples are to illustrate common compensation benefits and scenarios for disability:

* The worker suffers a broken wrist in their dominant hand and cannot perform their job duties as a result. Their doctor recommends a certain number of weeks to recover after which they are cleared to return to work, full duties. The worker makes an application for compensation. If their claim is accepted, the Board sets a short-term wage rate on their claim (based on their average earnings) and the worker is paid temporary wage-loss benefits at this rate for their days of lost work. The Board also covers any health care costs such as treatment or medication. If there are no permanent medical consequences to this injury and the worker returns to work full duties, the Board issues a decision that the injury is “resolved,” and their claim is closed. The worker is not referred for any other benefits such as Disability Awards or Vocational Rehabilitation.
* The worker suffers a more serious injury to their hand (e.g., a crush injury). If their claim is accepted, they again receive temporary wage loss for their time away from work. However, after 10 weeks, the Board issues a new long-term wage rate based on a more complex formula in law and policy. At a discretionary point, the Board considers that the worker’s condition is no longer “temporary” and must make one of the following decisions about the worker’s medical condition. Either:

:(a) their injury has “resolved” with no permanent impairment and they can return to work and perform full duties. In this case (as above), the Board will issue a “resolve” decision ending their temporary wage-loss benefits and their file will be closed; or
:(b) their injury is not fully resolved, and they are left with some permanent functional impairment. In this case, the Board will issue a “plateau decision,” setting a date at which it considers that the worker’s condition is no longer temporary, but it has reached a medical “plateau” (that is, the condition will not significantly change in the next year). This “plateau” decision also ends temporary wage-loss benefits on the plateau date, but will also refer the worker to Disability Awards to assess the nature and severity of this permanent impairment. In a separate decision, the Disability Awards will rate their impairment according to a schedule and award the worker Permanent Functional Impairment pension in a “Permanent Functional Impairment Decision.” The Permanent Functional Impairment pension is awarded regardless of whether the worker returns to work or not, as it is compensation for the permanent physical impairment, not direct compensation for lost wages.

The plateau decision also sets out whether the Board thinks that the worker can return to their pre-injury job, performing full duties, with the impairment. If the worker can return to their pre-injury work, the Board does not need to retrain him and there is no referral made to vocational rehabilitation.

However, if the Board considers that the worker cannot return to full duties with their impairment, the “plateau decision” will state this and the worker will be referred to vocational rehabilitation for further help with employment.

The vocational rehabilitation process is set out below and goes through five phases:

* '''Phase one''': Tries to have the worker return to the same job with the same employer.
* '''Phase two''': If unable to return to the same employer, works with the worker and employer to modify the job or identify job opportunities within the same company.
* '''Phase three''': If unable to return to the same company, tries to help identify suitable job options related to the worker’s experience and skills.
* '''Phase four''': If the worker is unable to return to the suitable work in the same or related industry, tries to help the worker to identify options in other industries.
* '''Phase five''': If the worker needs additional skills in order to return to suitable work, may cover the cost of training to help develop skills.

The first phase is to see if the employer can or will accommodate the worker and their impairment. If there is no accommodation and the worker does not have a job to return to, vocational rehabilitation goes through further phases to assesses what vocational rehabilitation assistance the Board should provide to help the worker become employable, given their permanent injury. Vocational rehabilitation benefits are discretionary but typically include a vocational rehabilitation plan for the worker to re-train and/or have a job search and wage-loss benefits for this period of vocational rehabilitation time. If successful, vocational rehabilitation results in the injured worker successfully adapting to employment with a permanent injury.

It is possible that vocational rehabilitation is not successful or that a seriously injured worker is simply too disabled to ever be competitively employable.

== B. Short-Term and Long-Term Average Earnings and Wage Rates ==

When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All wage-loss related benefits (e.g., loss of earnings, permanent functional disability, and temporary wage loss) are paid according to these rates. If you or your client believe that the benefits do not accurately reflect the pre-injury income, it is vital that you try to correct this as soon as possible.

At the beginning of the claim, the Board sets a short-term wage rate. After 10 weeks, if the worker is still on benefits, the Board sets a long-term wage rate. Both the short-term wage rate and longterm wage rate are set at 90% of net earnings, but the calculation of these earnings are different (in most cases) for the two wage rates.

A worker’s short-term and long-term wage rates are based on a determination of “average earnings” for the worker. This determination is a complicated and fact-specific process. There is an entire chapter of the RSCM II devoted to policies surrounding the determination of a worker’s average earnings (RSCM II Chapter 9 – Average Earnings). See below for further details.

The general rule for determining a worker’s short-term average earnings is to take the worker’s earnings as of the date of the injury. For example, if a worker makes $100 per day at the date of the injury, their average earnings will be set at $100 per day. However, this is not an appropriate measure for workers who do not work regular hours. Workers with variable earnings, with more than one job, and several other specific circumstances, will have their short-term average earnings determined in respect of a certain period of time (e.g., over three months prior to the accident) rather than in respect of the date of the accident. (See RSCM II, Policies #64.00–65.05.)

The general rule for determining a worker’s long-term average earnings is to obtain the worker’s earning and tax status for the 12 months preceding the injury and base the average earnings for the worker on that information.

For both short-term and long-term average earnings, there are exceptions to the above general rules. The exceptions apply workers with a casual pattern of employment, self-employed workers, workers with no earnings, volunteer workers, volunteer firefighters, workers in catholic institutions, emergency services workers, apprentices, workers employed for less than 12 months, and workers in “exceptional circumstances” (see RSCM II, Policies # 67.00 – 67.60).

For example, where the Board decides that a worker has a casual pattern of employment, the short-term average earnings will be based on that worker’s earnings over the immediately preceding 12 months of employment. Essentially, this means there is no “short-term” wage rate review, only the “long-term” wage rate. The result is that a “casual worker” who is earning a good wage at the time of the accident will likely be eligible for less compensation during the initial payment period than their counterpart in a “permanent” job. Where the “casual worker” designation has been made in the short-term wage rate decision but is not correct, this may be an important appeal issue.

Note that Practice Directive #C9-9 currently describes a two-step investigation procedure to determine whether a worker's pattern of employment is casual in nature. If the job at the time of injury is scheduled to last for three months or longer, the worker will not be considered a casual worker. If the job is scheduled to last for less than three months, the worker may be considered a casual worker if they have a history of short-term jobs (less than three months in length) with significant absences from employment between them (greater than the time spent employed). However, as Practice Directives are updated and changed on a regular basis, the electronic version should be consulted.

Another example is a “new” worker, defined as when the worker was permanently employed by the employer for less than 12 months before the injury. For this type of worker, section 217 of the WCA [Former Act, s. 33.3] allows the average earnings to be calculated based on what a person of similar status employed in the same type and classification of employment would earn in 12 months. However, section 217 is not applicable where the worker’s employment is deemed casual or temporary.

Under section 218 of the Act [Former Act, s. 33.4], the Board may also determine average earnings differently in “exceptional” circumstances, if the one-year average would be “inequitable.” This provision does not apply to cases of “casual” workers or to “new” permanent workers as described above. Practice Directive #C9-12 states that an exceptional case is one that is “truly extraordinary,” “unusual,” or “irregular,” such that “the worker’s circumstances in the year prior to the injury fail to provide any meaningful measure of their employment history.” Examples might include a non-compensable illness or injury, or maternity/paternity obligations. Under this exception, an officer has discretion to seek a long-term average earnings figure that better reflects the worker’s real income loss, possibly by excluding a significant atypical disruption (i.e., one lasting more than six weeks) or basing the worker’s “average earnings” on a longer or shorter period of time.

Under WCA s. 208(4) [Former Act, s. 33(3.2)], EI benefits are included in the calculation of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an occupation or industry that results in recurring seasonal or recurring temporary interruptions of work.” For a seasonal worker, this is an important distinction. For example, consider a worker injured at work in their first week after returning from a six-month layoff. If this worker were designated as a “casual worker,” the Board would simply calculate their earnings over the last year (including the period of the long layoff, but ''without'' counting EI payments) to arrive at the “average earnings” over the oneyear period before the injury. This figure would set both their short-term wage rate and long-term wage rate, and the only argument for a higher rate would be through the exceptional circumstances covered by section 218 of the ''Act''. However, if the worker is found to be in a “highly seasonal” occupation, their EI benefits would add to the calculations of their “average earnings,” and greatly increase their long-term wage rate. In addition, their short-term wage rate (for the first 10 weeks) would be set in the usual manner as being their wages at the time of injury.

Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on their '''combined''' earnings at both jobs, up to the statutory maximum. This applies even if the worker’s other job is not otherwise protected by the WCA (RSCM II Policy #65.02).

In addition to determining the appropriate period of time over which to “average” earnings, the Board will also consider what income should or should not be included in that average. These policies are set out at RSCM II Policies #68.00–68.90, and include topics such as overtime, termination pay, salary increases, benefit plans, strike pay, fishers, and others.

Note also that the WCA places a cap on wage rates that is set out at Policy #69.00 of the RSCM II.

Once the appropriate averaging period and included income amounts have been determined and averaged, deductions are applied so that the worker is receiving wage rates based on their net (or take-home) pay, rather than their gross pay. To calculate the worker’s average net earnings, the Board deducts probable EI premiums, probable CPP contributions, and probable income tax. These amounts are estimated, not calculated specifically for the worker (see RSCM II, Policy #71.00).

To do this, the Board establishes a schedule of deductions that apply to short-term average net earnings and long-term average net earnings (see RSCM II, Policies #71.10 and 71.20). For short-term average net earnings, the board applies the scheduled amount of CPP and EI deductions according to the worker’s average earnings. The Board will then deduct income tax based on the following credits: the basic personal amounts multiplied by 1.5, and the credits for CPP and EI contributions.

This will mean that individuals who have dependents or other significant tax credits will end up with a net average earnings amount that may not accurately approximate their actual net earnings. However, this is only an issue for the short-term rate.

For long-term average earnings, the Board applies formulas that reflect federal and provincial tax rates and the level of CPP and EI contributions for the immediately preceding calendar year. CPP and EI contributions are determined in a similar manner as in the short-term calculation, and do not necessarily reflect the actual CPP and EI contributions deducted from the worker. However, in estimating tax deductions, the Board will apply the basic personal amounts, EI and CPP credits, and spousal/dependent and/or caregiver credits.

In addition to Chapter 9 of the RSCM II, there are currently 11 practice directives that apply to the calculation of a worker’s average earnings and average net earnings. Rather than summarize this complexity, it is best to recognize that the Board’s long-term wage rate decision is based on an “average earnings” decision, and that the “average earnings” decision is important to review on its particular facts.

Wage rates are established based on the worker’s short-term or long-term average net earnings. The worker receives a wage rate based on 90% of their average net earnings. So, once the short-term or long-term average net earnings have been calculated as above, the wage rate paid to the worker will be 90% of that amount.

Once the long-term wage rate is set, the Board uses this long-term wage rate figure to calculate the amount of any awarded WCB benefits, including pensions, on that worker’s claim, for the life of the claim, except in the case of “re-openings” (see below).

Finally, for ongoing benefits, such as pensions, while the initial amount is determined on the basis of the long-term wage rate, the benefit itself is adjusted annually according to inflation, at a rate 1- percent less than the actual inflation rate with a 4-percent cap on inflation adjustments, regardless of whether the actual inflation rate is higher. This applies to all workers, including those injured before June 30, 2002.

==== 1. Recurrence or Deterioration and Wage Rates ====

A claim may be “re-opened” if a worker suffers a new period of temporary disability and/or an increased degree of permanent disability from a recurrence or deterioration of a previously accepted condition.

Under s. 229(1) of the ''Act'' [Former Act, s. 35.1(8), a recurrence of an injury is treated as a new injury for any new period of temporary disability. In addition, if the re-opening is more than 3 years after the initial injury, the Board may reset the long-term wage rate for the purpose of calculating additional benefits under the re-opening.

The applicable policy on re-setting long-term wage rates for re-openings over 3 years is Policy #70.20 of the RSCM II. This policy is complex, and it is best to consult this policy in light of the particular facts of each case. This policy affects all workers with long-term disabilities, where their condition recurs or deteriorates.

The re-opening provisions also have particular significance if the worker was injured prior to June 30, 2002, where the long-term wage rate was calculated as 75% of gross earnings and the definition of “average earnings” was different. This worker’s re-opening benefits would be calculated under the new policy provisions (90% of net average earnings).

It should be noted that a “recurrence” must be distinguished from a “deterioration.” In [https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc722/2006bcsc722.html?autocompleteStr=Cowburn%2520v%2520Worker%25E2%2580%2599s%2520Compensation%2520Board%2520of%2520British%2520Columbia%252C%25202006%2520BCSC%2520722&autocompletePos=1 ''Cowburn v Worker’s Compensation Board of British Columbia'', 2006 BCSC 722], the court found that it was patently unreasonable to treat a deterioration of a worker’s disability as a recurrence of an injury. Accordingly, when a worker’s permanent disability that began before June 30, 2002 becomes worse, the increased benefits are based on the older provisions that were in force when the disability first arose (such as pension entitlement). However, a new applicable wage rate may still have to be determined under policy #70.20.

== C. Temporary Wage-Loss Benefits ==

The WCA does not define “disability,” although it uses this term throughout the ''Act''. Section 191(1) of the Act [Former Act, s. 29(1)] states that if a worker has a temporary total disability (“'''TTD'''”), the Board must pay full temporary wage-loss benefits (calculated according to the steps above). Section 192 of the ''Act'' [Former Act, s. 30] states that if a worker has a temporary partial disability (“'''TPD'''”), the Board must pay the difference between the worker’s average net earnings before the injury and either their average net earnings after the injury or the average net earnings in some deemed “suitable” occupation.

If a worker has an injury but can perform the full duties of the pre-injury job, the claim is accepted for health care benefits only (see below). If the injury is such that the worker cannot perform full duties, the Board makes an entitlement decision on an accepted claim regarding additional benefits, especially wage loss. For most claims, the Board finds that there is some type of temporary disability:

* Temporary Total Disability: not working at all – temporary wage-loss benefits paid under s. 191 of the Act [Former Act, s. 29] (see RSCM II, Policy #34.10);

* Temporary Partial Disability: working part-time at a suitable occupation or deemed suitable occupation, and paid partial temporary wage-loss benefits under s. 192 of the Act [Former Act, s. 30] (See RSCM II, Policy #35.10); or

* Temporary Disability with Light Duties: working full-time in suitable light duties as per RSCM II Policy #34.11. In this case, the Board usually does not pay the worker any temporary wage-loss benefits, but the worker’s other benefit entitlement (such as health care) is adjudicated under s. 192 of the Act. Policy #34.11 applies to any adjudication of these light duties, including where the worker refuses light duties on the grounds that they are unreasonable.

:'''NOTE''': Light duties are meant to be a temporary arrangement during a period of temporary disability. Even though no temporary wage-loss benefit is paid to a worker, it is still an accepted period of “disability” under the ''Act''. During this period, a worker is entitled not only to health care benefits, but also to a decision regarding the outcome of the accepted condition. All periods of “light duty” should conclude with a formal “resolve” or “plateau” decision.

There are a number of RSCM II policies that apply to temporary wage-loss benefits as set out in Chapter 5 – Wage-Loss Benefits. Some key issues covered by those policies include:

* a worker who, while already permanently disabled, suffers a new work injury or relapse (#34.12);

* the minimum level of compensation payable for TTD and TPD wage-loss benefits (#34.20 and #35.23);

* starting date for benefit payments (#34.30);

* strikes or lay-offs (#34.32); and

* vacation or termination pay (#34.41 and 34.42).

A temporary disability ceases when the worker’s medical condition either resolves entirely or is not expected to change significantly in the next 12 months. At this point, the medical condition is said to have “plateaued” and is considered permanent (see RSCM II, Policy #34.54). In either case, the Board ceases to pay further temporary wage-loss benefits under ss. 191 or 192 of the ''Act'' [Former Act, s. 29 or 30] at this point.

== D. Health Care Benefits ==

Health care benefits are payable under ss. 156–161 of the ''Act'' [Former Act, s. 21] for the period of the worker’s disability, and thereafter to “cure and relieve from the effects of the injury or alleviate those effects.” Chapter 10 of the RSCM II greatly expands the Board’s regulation and control of particular health care benefits including all forms of treatment, medical investigation with specialists, medical aids, and medications. As noted above, if a worker has an impairment but can perform their full pre-injury job, the claim is accepted for health care benefits only (as long as there is a short episode of disability: see RSCM II, Policy #33.00).

Once an injured worker has reached the “resolve/plateau” point of their injury, they then receive a permanent disability assessment. This may be an issue for workers who are able to return to work with permanent injuries, especially in accommodated positions. Such a worker may be suffering from the effects of their injury but are not considered “disabled.” They are entitled to ongoing treatment under ss. 156–161 of the ''Act''. Where a worker is denied but disagrees with the result, they may appeal to obtain such benefits.

The Board must pay for necessary medical treatment, including physicians and hospital bills, physiotherapy, drugs, artificial limbs, hearing aids, and special transportation. Allowances for personal care and for structural alterations to the home may also be paid to paraplegics and other severely disabled workers. Practice directive #C10-1 addresses pain medication, sedatives, and hypnotics. Compensation for prescribed opioids and other potentially addictive medications are generally limited to four weeks coverage

WorkSafeBC adjudicates coverage for cannabis in the same manner as it does other requests for health care. Payment for cannabis may be approved where the evidence supports that it is reasonably necessary to alleviate the effects of a compensable condition (Practice Directive #C10-5).

The Board has the right to supervise a worker’s treatment (Act, ss. 156-161 [Former Act, s. 21]) and to authorize any surgery. If a worker decides to undergo surgery or other treatment that is not authorized by the Board, the costs may not be paid, and if the injury is worsened by the treatment, benefits may be cut off or reduced. The Board usually agrees to pay for surgery recommended by the worker’s own doctor, but the doctor should ask for the Board Advisor’s approval. The Board often refuses to pay for drugs or physiotherapy considered unnecessary by its advisors. Medical Aid decisions can be appealed.

== E. Income Continuity Benefits ==

Although classified as vocational rehabilitation benefits (described below), income continuity benefits are payments to provide interim support for the worker after temporary wage-loss benefits are terminated at plateau, but before the amount of a permanent disability pension is determined. A worker’s advocate should always request these benefits as they are often the only source of income that a worker will have between the time the worker’s condition stabilizes and the time the pension benefits are assessed. These are short-term, temporary benefits.

If a worker refuses employment or to participate in a Board issued vocational rehabilitation plan, they may be refused income-continuity benefits. See Item C11-89.10 of the RCSM II for more information regarding the assessment of income continuity benefits.

== F. Vocational Rehabilitation Benefits ==

The Board usually assesses whether a worker needs assistance to return to work at or near the end of their temporary disability. If the worker has a permanent impairment and is not able to safely return to work without assistance, they are referred to Vocational Rehabilitation.

If a worker is struggling or unsafe near the end of the period of wage loss, an advocate should review the file to ensure a referral to vocational rehabilitation is made. If there is no referral, the advocate may make a direct request to the Case Manager and/or appeal the “resolve” or “plateau” decision on the basis that these decisions do not contain a vocational rehabilitation referral, when one is needed. Items C11-85.00 and C11-86.00 of the RSCM II set out the principles, goals, and eligibility criteria for vocational rehabilitation benefits.

Once a vocational rehabilitation referral is made, the Board may provide a large variety of vocational rehabilitation services to injured workers. These are discretionary benefits under s. 155 of the ''Act'' [Former Act, s. 16], governed by the policy set out in Chapter 11 of the RSCM II. Generally, the extent of vocational rehabilitation services depends on the nature of the worker’s disability.

The policy requires that the assigned Vocational Rehabilitation Consultant consult with the worker and issue a written vocational rehabilitation plan identifying a suitable occupational goal and the vocational rehabilitation services required.

In identifying a suitable vocational rehabilitation plan, the vocational rehabilitation consultant works through five vocational rehabilitation phases, set out in RSCM II, Items C11-85.00 to C11-91.00. In fatal cases, a surviving spouse may be eligible for retraining.

In brief, the phases are:

* '''Phase One''': The vocational rehabilitation consultant will make an effort to assist the worker to return to the same job with the same employer (the “accident employer”). This may require some phased-in work programs such as a gradual return to work or work conditioning.

* '''Phase Two''': If the worker cannot return to the same job, the vocational rehabilitation consultant works with the accident employer to make worksite accommodations and job modifications, or to provide alternative in-service placement, with a view to finding the worker a new position within the accident employer’s business.

* '''Phase Three''': If the employer is unable or unwilling to accommodate the worker, the vocational rehabilitation consultant identifies suitable occupational options in the same or related industry. This may require the worker to obtain additional skills or training or to be supported in periods of job search.

* '''Phase Four''': If the worker is unable to return to employment in the same or related industry, the vocational rehabilitation consultant explores opportunities in all industries, with emphasis placed on the worker’s transferable skills, aptitudes, and interests.

* '''Phase Five''': If the worker’s existing skills are insufficient, the vocational rehabilitation consultant may utilize additional training programs to help the worker acquire new skills, and may also assist the worker in a job search once training is complete.

The particular vocational rehabilitation benefits which are authorized for the worker are detailed in the formal vocational rehabilitation plan, which should be provided to the worker. The worker’s vocational rehabilitation plan is first published as a document, discussed with the worker, and then is set out in a formal appealable decision.

Vocational rehabilitation services can include:

* monthly compensation (in the same amount as wage-loss benefits) to support a worker during a rehabilitation program;

* payment of tuition, books, and other costs of the course itself;

* employability assessments;

* a job search allowance (also in the same amount as wage-loss benefits) to support the worker while looking for suitable employment if they cannot return to the pre-injury job; and

* a training on the job allowance or wage subsidy to encourage an employer to allow the worker to learn new employment skills or gain experience in a new field.

In practice, the Board will only issue one vocational rehabilitation plan and ask the worker to agree to it. The plan must be reasonable. If the worker thinks a vocational rehabilitation plan is not reasonable, they should appeal the vocational rehabilitation decision setting out the vocational rehabilitation plan and ask for a new plan, being as specific as possible as to why the vocational rehabilitation plan is unreasonable, and if possible, what a reasonable vocational rehabilitation plan may be.

If a worker is cooperating with vocational rehabilitation re-training, they should continue to receive benefits at the full wage-loss rate. If a worker is appealing a vocational rehabilitation plan as unreasonable, the worker may wish to keep cooperating with the challenged vocational rehabilitation plan during the appeal period in order to continue receiving benefits.

Vocational rehabilitation benefits, under a formal vocational rehabilitation plan, may be terminated for reasons set out in Item C11-88.00 of the RSCM II. These reasons include if the worker is not cooperating, if they withdraw for personal reasons, if they refuse suitable employment, or if they are prevented from participating by non-compensable medical, psycho-social, or financial problems. If the worker believes that the Board’s reasons for terminating vocational rehabilitation benefits are inaccurate or wrong, the termination decision should be appealed. This is particularly important if the worker is failing in vocational rehabilitation due to some aspect of their medical condition.

At the end of the vocational rehabilitation process, the vocational rehabilitation consultant issues a decision about the worker’s future earning capacity in a suitable occupation, and whether vocational rehabilitation has restored it to near its pre-injury level. Based on this decision, the Board then determines whether the worker should be considered for a loss of earnings pension.

'''Only the WCB’s Review Division can review rehabilitation decisions; The Review Division decisions on vocational rehabilitation cannot be appealed to the Workers’ Compensation Appeal Tribunal (WCA, s. 288(2) [Former Act, s. 230(2)]).'''

While the Board routinely relies on the vocational rehabilitation consultant’s decision regarding the worker’s employability, WCAT may not consider these vocational rehabilitation decisions as binding on them when adjudicating a loss of earnings pension issue on appeal. For example, a vocational rehabilitation consultant may find that a worker can adapt to working full-time in a particular occupation. If the worker disagrees about this decision, the worker may raise this issue and provide evidence about disability in their appeal of a denial of a loss of earnings pension, both at the Review Division and WCAT. WCAT does, on occasion, make decisions that essentially overturn a Review Division finding as to the employability of a particular worker. However, on judicial review, this may lead to difficulties as it can be argued that WCAT’s decision was made without jurisdiction.

:'''NOTE''': Many difficulties in this area arise from different concepts of disability and employability. The Board tends to assess a worker’s permanent disability in terms of impairment and to limit its assessment of impairment to “medical restrictions and limitations” (“R&Ls”),i.e., specific activities which the worker cannot do or should not do at all because of potential harm. R&Ls may or may not include other aspects of limited ability such as tolerance or endurance (such as an inability to sit for more than 10 minutes) which are key elements of work function. Also, disabled workers often face discrimination and other barriers to employment. Court decisions have been clear that vocational rehabilitation processes must address the whole worker, including any pre-existing disabilities or factors affecting employment ([https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1209/2011bcsc1209.html?autocompleteStr=2011%2520BCSC%25201209&autocompletePos=1 ''Young v WCAT'', 2011 BCSC 1209]), but this remains a contentious area and one that the Board does not consider part of the “compensable” condition

== G. Permanent Disability Pensions ==

Once a worker’s condition has stabilized or “plateaued,” i.e., is not likely to get significantly better or worse in the next 12 months, temporary wage-loss benefits will cease. If the worker continues to have some disability, they will be assessed for a permanent disability pension. A disability pension is possible if WCB determines that the worker has been left with a permanent disability.

A case manager will determine which conditions or injuries are permanent and refer the worker for assessment. Decisions not to refer a worker at all or to exclude certain injuries or conditions are appealable to the Review Division and, if necessary, to WCAT.

A WCB “pension” is how the Board compensates an injured worker for a permanent disability. There are two possible methods for calculating a pension – compensation for permanent functional impairment, or compensation for loss of earnings (detailed below). If a permanent partial disability is accepted, WorkSafeBC will consider '''both''' methods and select the method which will provide the '''larger award'''.

Workers who also qualify for Canadian Pension Plan (CPP) disability benefits will have one-half of those benefits deducted from their WCB pensions (this could amount to as much as $577 per month, half of the $1153 maximum currently payable by CPP). This deduction represents the employer’s share of the benefits paid for the same disability as the WCB claim. If a CPP pension is partly based on non-compensable disabilities, no deduction will be made for that portion of the CPP (See RSCM II, Item C6-36.10).

=== 1. Permanent or Partial Total Disability Benefits ===

When the Board determines that a worker has a permanent functional impairment, the Board must determine whether the functional impairment is a Permanent Total Disability (“'''PTD'''”) or aPermanentPartial Disability (“'''PPD'''”). Sometimes, this will be obvious, such as in cases of paraplegia or blindness. In other cases, the Board must conduct an assessment to determine the degree of impairment. If the impairment is 100%, the worker has a PTD. If it is anything less than 100%, the worker has a PPD. This is an important distinction, as PTD and PPD benefits are calculated under different sections of the ''Act'' and have different minimum payable amounts.

There are two methods used to calculate a worker’s degree of impairment: the functional impairment method – often referred to as the loss of function method (“'''LOF'''”) – or, the loss of earnings method (“'''LOE'''”).

The Board will consider both methods and will use the method that provides the highest award to the worker (Act, s. 195–196 [Former Act, s. 23]).

=== 2. Loss of Function Method ===

The LOF method compares the worker’s degree of physical impairment to that of a totally disabled person. The percentage of impairment is usually based on the RSCM’s Permanent Disability Evaluation Schedule (PDES). It is important to note that this is an objective measure, i.e., the amputation of a thumb would result in the same degree of impairment for a carpenter as for an accountant under the LOF method, even though it may be a far more disabling injury for the carpenter.

Generally, only disabilities that could reduce earning capacity receive compensation, and there are no payments for pain and suffering or loss of enjoyment of life. The Board’s policy manual contains detailed schedules of percentage of impairment for different types of disabilities. Types not listed are estimated, and there is usually some degree of discretion in the process.

Item C6-39.00 of the RSCM II says that the PDES is meant to be a guideline and not a rigid formula. The WCB is free to apply other variables in arriving at a final award, but they must relate to degree of impairment and not social or economic factors, or rules established in other jurisdictions. In practice, the PDES is applied with little discretion.

Note that loss of function awards for chronic pain are capped at 2.5% per area of pain (RSCM II, Item C6-39.10).

As stated above, if the LOF method leads to a finding that the worker is 100% disabled, they will be paid PTD benefits pursuant to s. 194 of the ''Act'' [Former Act, s. 22]. If the LOF method leads to a finding that the worker is less than 100% disabled, they will be paid PPD benefits pursuant to s. 195–196 of the ''Act'' [Former Act, s. 23].

Note that even if a worker is found to be 100% unemployable pursuant to the LOE method described below (i.e., their loss of earnings is complete), it does not necessarily make them 100% functionally disabled, because the LOE method may incorporate personal information about the worker (such as a criminal history) that makes the worker unemployable even though the injury did not cause a 100% functional impairment. As such, a 100% unemployable worker will still be paid benefits pursuant to s. 192 of the ''Act'' [Former Act, s. 30(2)].

=== 3. Loss of Earnings Method ===

The LOE method compares the long-term wage rate that a worker was able to earn per year before the injury to what the worker is able to earn after the injury, based on occupations that are suitable for and reasonably available to that worker. Unlike the objective LOF method, the subjective LOE method takes into account the specific worker. I.e., the LOE method would likely find that the loss of earnings related to an amputated thumb is greater for the carpenter than it is for the accountant, because the accountant can likely return to their pre-injury job, but the carpenter cannot.

Where workers are unable to replace their pre-injury earnings, the WCB often “deems” them capable of earning significantly more post-injury than they are actually earning or can earn following an injury. For example, a worker who cannot return to a pre-injury job that paid $4000 per month may find new employment for $2000 per month. Instead of accepting the worker’s own experience, the Board may decide that, over the long term, the worker can find a different kind of job that pays $3000 per month, and calculate the benefits accordingly. Instead of getting a loss of earnings pension representing the actual $2000 per month the worker is losing, they would receive a pension based on the $1000 the Board “deems” them to be losing.

Workers may disagree with Board decisions. Common situations are that the worker believes the Board has underestimated the extent of physical or psychological limitations they have due to their injury and/or pre-injury background, or underestimate the demands of the deemed occupations the Board says they can perform. Workers may also disagree with the assessment of what they are capable of earning over the long term in the deemed occupations, therein deeming them capable of theoretical earnings that exceed what is reasonably suitable and available for them. If a worker appeals a loss of earning decision, then they should provide evidence of why the decision should be changed.

== H. Benefits After Age 65 ==

Item C6-41.00 of the RSCM II states that payments for permanent disability pensions end at age 65 unless the WCB is satisfied that the worker would have retired at a later date. WCA s. 201(3) states that a determination as to whether a worker would have worked passed the age of 65 can be made by the Board after the individual reaches the age of 63. Note that this change was introduced in 2021 and, before that time, retirement age was assessed as of the date of the injury, regardless of the age of the worker.

At age 63, the worker is asked to provide independent verifiable evidence that they had plans to work beyond age 65. Elements that make up a plan would include a concrete pathway towards continued employment, as well as a financial need to remain in the workforce. This evidence can include the following:

* Names of the employer or employers the worker intends to work for after age 65, along with confirmation from the employer;

* A description of the type of employment the worker is going to perform, along with evidence showing the worker actually has the capacity to perform the work;

* Evidence from other professionals that it is normal to continue work beyond 65 in that profession. This would include retirement age set by unions; and

* Financial obligations of the worker or family, such as a mortgage or other debts.

== I. Benefits in Fatality Cases ==

When a worker is killed as a result of a workplace injury, dependants of that worker can apply to the Board for benefits. Dependants include family members that are dependent on the worker’s earnings, as well as a spouse, child, or parent that had a reasonable expectation of pecuniary benefit from the continued life of the worker (see RSCM II, Item C8-53.00).

A child eligible for compensation includes a child less than 19 years of age, a child of any age who had, at the date of the worker’s death, a physical or mental disability that resulted in the child being incapable of earning, and a child less than 25 years of age who attends a school.

Spousal benefits are not lost upon re-marriage, and survivors’ pensions are not terminated when the worker would have reached age 65 (see WCA, s. 168, as well as s. 225 for death before July 1, 1974; [Former Act, s. 19.1]).

Where death results from a compensable injury or industrial disease, the surviving dependents may receive lump-sum payments or monthly pensions based on the deceased worker’s earnings. These pensions cannot exceed the statutory maximum and are adjusted in accordance with changes in the Consumer Price Index. The amount of the pension for spouses without dependent children depends on the surviving spouse’s age (WCA, s. 170 [Former Act, s. 17(3)(d)]).

A separated spouse may receive benefits based on the amount of support the deceased worker would likely have contributed had they survived (s. 178; previously 17(9)). A common-law spouse is entitled to benefits after three years of cohabitation or after one year if there are children. However, compensation may not be paid, or may be reduced, if there is a separated spouse as well.

Benefits in fatality cases can be complex, particularly if any apportionment between dependants is required. Chapter 8 – Compensation on the Death of a Worker of the RSCM II should be consulted.

== J. Suspension of Benefits ==

Benefits may be suspended if:

* a worker persists in unsanitary or injurious practices, which tend to '''prevent or slow recovery''';

* a worker refuses to submit to medical or surgical treatment, which, in the opinion of the WCB, is '''reasonably essential''' in promoting recovery;

* a worker fails to attend a medical examination arranged by the Board; or

* a worker is in prison, in which case benefits will cease, or be paid to their dependents.

The Board may also divert compensation from a worker for the benefit of their dependents if the worker is not supporting them.

Under s. 153 of the WCA [Former Act, s. 57.1], the Board may withhold or reduce benefits for any period the worker does not provide the requested information (unless the Board finds that it was unclear in communicating the requirement, or erroneously concluded that the worker was being uncooperative). However, such benefits will be paid when the worker provides the necessary information.

== K. Emergency Assistance ==

Many workers need immediate income if they are waiting to be accepted, or their benefits have been disallowed or terminated. They should consider alternate sources: social assistance, which may provide a crisis grant for immediate temporary relief or longer-term relief if a decision is being appealed, EI sickness benefits, CPP disability pensions, any plans available through their place of work or union, ICBC (if an automobile was involved), or private disability insurance.

== L. “Resolved/Plateau” Decision Letters ==

There are other key decisions in a worker’s claim including the initial decision to accept or deny a claim and any vocational rehabilitation or pension decision. Additionally, it is important to note the decision that is issued at the end of a period of temporary disability. This decision, referred to as a “resolved/plateau” decision, usually includes several key decisions, each of which may be appealed. Briefly, the decisions usually embedded in the “resolve/plateau” decision include:

=== 1. Has the Worker’s Injury/Occupational Disease Stabilized? ===

The first key issue is an accurate medical assessment of the worker’s compensable condition at the critical point of a “resolve/plateau” decision. As noted above, if a work injury or Occupational Disease has resolved entirely, the Board issues a “resolve” decision and the claim file is closed. If the injury has only stabilized, then the Board issues (or should issue) a “plateau” decision. If the injury has not yet stabilized, the Board should continue to treat it as a temporary disability with temporary benefits (wage-loss and/or health care benefits).

An appealable matter arises if the Board issues a “resolve” decision but the worker or the medical evidence indicates that there are ongoing effects, conditions, or impairments from the injury (e.g., chronic pain). In this case, both the medical evidence and the Board’s adjudication should be assessed. The medical evidence should be assessed to determine if the compensable conditions are still temporarily disabling (i.e., the worker is not able to fully return to pre-injury work) so that the worker continues to be entitled to temporary ongoing benefits, or if the compensable conditions have reached a “plateau” as defined by RSCM II Policy #34.54 and the worker is entitled to a referral to Disability Awards and (sometimes) Vocational Rehabilitation.

The issue of “fully resolved” vs. having reached a plateau is a medical issue. “Fully resolved” means that there is no permanent or ongoing residue or impairment from the injury. If the claim is concluded on the basis that the compensable condition has “fully resolved,” then no further benefits flow and it will be very difficult to reopen the claim later. If the injury is not fully resolved medically,the file should not be closed. Just because a worker returns to pre-injury employment (with no disability so no wage loss), it does not mean that the injury is “fully resolved”; The injury may have stabilized into a permanent impairment that is not disabling. If the worker is issued a “resolve” letter and there are ongoing medical issues or symptoms, the “resolve” decision should be appealed.

If the condition has not resolved but you are unsure whether it is still a temporary or permanent disability, RSCM II Policy #34.54 gives the criteria for making a determination between temporary and permanent conditions in this context. Basically, the policy states that a medical condition is “stabilized” when there is little potential for improvement or where any changes are in keeping with the normal fluctuations for that condition. Most doctors know the term “plateau” in this sense, and the worker’s GP may well address this matter in the last report on the claim file (found in the medical section).

=== 2. Plateau Date ===

If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of “stabilizing,” “maximum medical recovery” (MMR) or “plateau.” You can assess whether this date is appropriate by considering:

* Have all the compensable conditions been considered?

* Is it appropriate given the criteria in RSCM II Policy #34.54 and the medical evidence?

'''Example''': If further treatment (physiotherapy or surgery) is likely to make a significant change in the worker’s condition within three months, then the condition should continue to be temporarily disabling and the worker should get temporary wage-loss benefits until then.

=== 3. Which Permanent Conditions are Accepted or Denied? ===

In the plateau decision letter, the Case Manager sets out which exact conditions are accepted as permanent. These permanent conditions may be somewhat different than those originally accepted on the claim. For example, if a worker falls and suffers multiple injuries, some of the injuries are likely to fully resolve (e.g., sprains) while others can potentially leave a residual impairment (e.g., broken leg which mostly heals but leaves the worker with a limp). Other injuries will leave a very significant permanent impairment (e.g., mild brain injury). It is also possible that the worker has developed additional conditions during the temporary period (e.g., infections, psychological conditions, chronic pain, addiction, etc.).

Typically, as a worker nears plateau, the Case Manager refers the claim to a Board Medical Advisor (BMA) to assess whether the worker has reached plateau, and to determine the likely plateau date and what permanent conditions should (and should not) be accepted on the claim. The BMA assessment may or may not be explicitly referenced in the plateau decision. The complete BMA opinion can be found as a “Clinical Opinion” in the medical section of the claim file.

=== 4. Accepted and Denied Conditions ===

It is '''very''' important to carefully assess which conditions are accepted and denied as permanent on the claim, as these conditions will likely govern all future benefits. All plateau decisions should include a referral to Disability Awards for assessment of the permanent disability.

The plateau decision may also set out why certain medical conditions are denied as compensable permanent conditions. For example, if the Board finds that the identified conditions have resolved and the worker disagrees, this is a very important appeal. Sometimes the medical evidence on the claim file is sufficient to establish that the condition has not resolved; If not, the worker will likely need additional medical evidence.

Another common reason for denying permanent conditions is that the Board considers that the conditions pre-existed the injury, and were not permanently aggravated by the injury, even if there was a temporary aggravation. There are two distinct types of pre-existing conditions:

* The pre-existing condition or disease was '''non-deteriorating''':

: As set out in RSCM II Item C3-16.00 for injury and Item C4-25.20 for Occupational Disease, if the post-plateau condition is not significantly worse than before the injury, then the condition was not permanently aggravated by the work injury/Occupational Disease. This is an issue for which medical records are important.

* The pre-existing condition or disease was '''deteriorating''':

: If the worker had a pre-existing deteriorating condition, the test is whether the work injury “accelerated, activated, or advanced” the condition more quickly than would have occurred in the absence of the work injury (RSCM II Item C3-16.00). The Board commonly denies permanent disability on the basis that it arises from a natural degeneration of a pre-existing condition such as degenerative disc disease or osteoarthritis.

=== 5. Missing Conditions ===

The plateau decision (accepted and denied conditions) may not fully encompass the medical conditions which are noted by the worker or by the medical practitioners. This is best seen by comparing the decision letter with the medical evidence. If the decision is silent on a medical condition, you can ask for a new or additional decision from a case manager. Alternatively, if you are appealing the plateau decision on other grounds, in the appeal you can ask for a remedy that additional conditions be accepted on the claim.

=== 6. Can the Worker Return to the Pre-Injury Job? ===

A case manager’s decision that a worker can return to their pre-injury job is considered to be a finding of fact and not an appealable decision. In the context of a plateau decision, this return-to-work finding means that the Board considers that the accepted permanent conditions do not impair or disable the worker from their pre-injury job.

If this is not the case, this is a very important issue to challenge. Since an appeal of a plateau decision often involves seeking additional temporary wage-loss benefits, a new plateau date, additional permanent conditions, etc., the return-to-work finding of fact can be addressed in the context of these additional issues.

However, if there are no other issues in the plateau decision other than this return-to-work finding, the plateau decision should be appealed on the grounds that the worker cannot return to their pre-injury job and is entitled to additional vocational rehabilitation benefits. Framing the appeal issue in this way ensures that the Review Division has an entitlement decision to address.

=== 7. Referral to Vocational Rehabilitation ===

If the Board finds that the worker cannot return to their pre-injury job, then the case manager will most often refer the case to vocational rehabilitation for vocational rehabilitation benefits.

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Time Limits and Procedures in Workers' Compensation (7:X)

2023-09-12T19:53:34Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

== A. Time Limits ==

As set out above, the key time limits that apply to making a claim are the '''reporting time limits''' and the '''time limits for filing a claim'''.

Injuries must be reported by workers to their employers and by employers to the Board as soon as possible. See paragraph VI.A.1 for details.

Section 151 [Former Act, s. 55] of the WCA requires that generally, a worker must apply for compensation '''within one year''' of the date of injury. Subsections 151(4) and (5), as well as section 152 [Former Act, s. 55(3.2)], provide several exceptions for when late applications may be accepted:

* If exceptional circumstances exist which precluded the worker from making an application within one year and the application is less than three years after the date of injury (WCA, s. 151(4) [Former Act, s. 55(3.1)]), the worker’s application may be accepted. If a worker’s application has been denied because of a late application, please consult Policy #93.22 of the RSCM II to assess what evidence of “exceptional circumstances” may be relevant in that case.
* Even after more than three years post-accident, the Board may still accept a claim based on “exceptional circumstances,” however the Board can only pay compensation from the date of the application forward, not from the date of the injury (WCA, s. 151(5) [Former Act, s. 55(3.1)]).
* If death or disablement is due to an occupational disease but sufficient scientific evidence did not exist at the time of the application to prove this and there is new scientific evidence regarding the occupational disease causation, the application may be accepted. However, the worker must make the application no more than three years after sufficient medical or scientific evidence became available to the board (WCA, s. 152(1) [Former Act, s. (3.2)]).
* The Board may also reconsider an old occupational disease decision that meets the subsections 152(1) and (2) criteria.

== B. Application Procedures ==

Applications to the Board must be made by submitting Form 6, which will be provided to the worker by the Board when a report is received. This form can also be [https://www.worksafebc.com/en/resources/claims/forms/application-for-compensation-and-report-of-injury-or-occupational-disease-form-6 found online]. This form can be submitted online. Workers can also call Teleclaim at 1 (888) 967-5377 from 8am to 6pm Monday to Friday.

Note that, even when submitted online, a typed or printed name is not sufficient to meet the signature requirement. The worker must either have a handwritten digital signature they can apply to the form, or they must print and sign the form before scanning and submitting. See RSCM II Policy #93.25.

Finally, the Board does have the discretion to accept and adjudicate a claim without an application in certain circumstances. See RSCM II Policy #93.23.

== C. The Case Management Process ==

Claims procedures are governed by Chapter 12 of the RSCM II. This manual will not cover all of the policies in that chapter, so it is important to review the nature of the policies in that chapter in order to be able to spot policy related issues in a case.

Once an application has been made, it moves into the case management process where initial decision makers will consider the application and decide whether to accept or reject the claim on the criteria set out above. A case manager oversees the delivery of services for the entire life of the claim. This process may also include regular multidisciplinary team meetings, clinical care planning, site visits, and a return-to-work plan, which sets out expectations surrounding medical treatment, physical rehabilitation, and a Return-to-Work option. The worker, union or other representative, the worker’s doctors, and the employer are all expected to participate.

WCB uses the Claims Management Solutions (“'''CMS'''”) System to streamline and manage the claims process more effectively and improve service to customers. The CMS System manages all data related to previous, current, and future claims and helps integrate services throughout the life cycle of a claim. It is supposed to result in faster case handling and claim payments, more support for injured workers, and less administrative work for employers and service providers. Workers can obtain real-time access to their claim file by registering online, and can authorize a representative to have access as well.

=== 1. Initial Decision-Making Process ===

Most decisions are made by frontline WCB officers. The major issues to be decided are whether the worker is covered by the WCA, whether the injury arose out of and in the course of employment, and to what benefits the worker is entitled. The most important WCB officers, and the decisions that they make, are as follows:

==== a) Entitlement Officers (EO) ====

* Accepts or rejects claims;
* Seeks and reviews required medical documentation;
* May establish initial long-term wage rates;
* Pays short-term disability benefits;
* Authorizes health care payments;
* Calculates overpayment;
* Requests refund from claimant if overpaid;
* Identifies claims requiring claim management; and
* Monitors return-to-work.

==== b) Case Manager (CM) ====

* Accepts or rejects claims;
* Approves wage-loss benefits, determines the initial wage rate, and terminates or reduces wage-loss benefits;
* Investigates and decides “long term” average earnings, which are implemented ten weeks after the injury (eight weeks for injuries before June 30, 2002);
* Approves or rejects operations or other major treatments;
* Approves workers’ expenses for WCB payments;
* Determines when to terminate wage-loss benefits because the worker’s disability is considered to have “plateaued”; and
* Generally, makes most decisions involving workers including whether to register the worker for vocational rehabilitation services and pension assessments.

==== c) Vocational Rehabilitation Consultant ====

* Works with the worker, employer, and union (if any) to get the worker back to work as soon as medically possible, perhaps to a modified job;
* Approves job retraining courses;
* Determines training allowances (usually paid at wage loss levels) and expenses for attending courses;
* Can agree to subsidize a new employer for a limited time;
* Determines “continuity of income” benefits to bridge the gap between termination of wage-loss benefits and determination of a permanent pension; and
* Assesses a worker’s long-term employability, and the earnings they are considered capable of achieving after the worker has “maximized” their earning capacity in a suitable and available job. This assessment is the core of the Disability Awards Officer’s decision concerning a Loss of Earnings pension. While the decision is made by the Officer, who can reject the recommendation of the consultant, the consultant’s assessment is a crucial step in the pension process

==== d) Disability Awards Officer ====

* Determines the degree of permanent disability on a physical impairment basis; For workers whose permanent disability is considered to have occurred on or after June 30, 2002, this will determine the pension in the great majority of cases.

These WCB employees interact considerably during initial decision processes. For example, a projected loss of earnings assessment, while made by a Disability Awards Officer, is based on a report from the Rehabilitation Officer stating which jobs are suitable and available to the worker, and what earnings can be anticipated. Throughout a claim, the Board’s salaried medical staff (doctors, psychologists etc.) may be consulted regarding medical issues. Furthermore, board medical advisors may be consulted where a second medical opinion is needed.

== D. Procedure After Application ==

The family doctor plays a crucial role in the acceptance and continuance of the worker’s claim as well as with their treatment. The WCA requires that the doctor file an initial report with the Board, as well as progress reports for each visit. Doctors are also required to give all necessary advice and assistance to a worker making an application for compensation, including furnishing proof that may be required. Some doctors are very helpful to injured workers, while others refuse to get involved in what they consider to be a legal issue. Such an attitude can be very harmful if there is a medical dispute between the Board and the worker.

The Board has extensive inquiry and investigative powers. It may require the worker to be medically examined by a WCB staff doctor or by independent consultants. WCB officers called Entitlement Officers, Case Managers, Disability Awards Officers, and Rehabilitation Consultants decide whether to accept the claim and what benefits, if any, should be paid. Although rarely used, the Board has the authority to conduct a formal inquiry at which the claimant and other witnesses are compelled to appear and be questioned. Important decisions occur at various times as a result of the interaction and correspondence between various WCB officers, the worker, the family doctor, and any specialist.

As set out above, making a claim to the Board results in obligations arising for the worker and for their healthcare professionals (see RSCM II Policies #93.26 and 95.00–95.40). A failure to provide information on the part of the worker can result in the claim being suspended (see RSCM II Policy #96.22).

If there is a delay in obtaining outside evidence, the Board may decide to make a preliminary determination and begin paying benefits while waiting for further information (see RSCM II Policy #96.21).

== E. Evidence and Investigation ==

As in any legal arena, at all stages of the Workers’ Compensation process it is vital to support claims with evidence. Often this can be especially challenging when dealing with medical issues for many reasons: for example, these issues require specialized knowledge, they often do not lend themselves to certainty even for professionals, and most injured workers have limited time and money to spend collecting evidence.

Conversely, WCB has salaried Board Medical Advisors (BMA) and WCAT is “presumed to be an expert in all matters over which it has exclusive jurisdiction” ([https://www.canlii.org/en/bc/bcca/doc/2014/2014bcca499/2014bcca499.html?autocompleteStr=2014%2520BCCA%2520499%2520&autocompletePos=1 ''Fraser Health Authority v Workers’ Compensation Appeal Tribunal'', 2014 BCCA 499 (''Fraser Health'')]). Nevertheless, WCB and WCAT are not presumed to have medical or scientific expertise and, as such, they are not permitted to ignore uncontradicted expert advice ([https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc493/2009bcsc493.html?autocompleteStr=2009%2520BCSC%2520493&autocompletePos=1 ''Page v British Columbia (Workers’ Compensation Appeal Tribunal)'', 2009 BCSC 493]), particularly in light of the “as likely as not” standard.

While it may be useful to document subjective claims of injury, pain, and limitations, workers should bring as much objective expert evidence as possible. This may include evidence from physiotherapists, massage therapists, chiropractors, and dentists in addition to a family doctor. If necessary and possible, ask to be referred to a specialist.

Also, recall that medical diagnosis and medical causation does not need to be proven to the level of scientific certainty. The finder of fact is permitted to make common sense inferences ([https://www.canlii.org/en/ca/scc/doc/1990/1990canlii70/1990canlii70.html?autocompleteStr=snell%2520v&autocompletePos=1 ''Snell v Farrell'', [1990<nowiki>]</nowiki> 2 SCR 311]; [https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1820/2012bcsc1820.html?autocompleteStr=2012%2520BCSC%25201820&autocompletePos=1 ''McKnight v Workers’ Compensation Appeal Tribunal'', 2012 BCSC 1820]).

As with all evidence in the claims process, there is no onus on the worker to prove their injury. Rather, once a claim has been made, the Board gathers the relevant evidence it needs to make a sound conclusion. However, the worker ''does'' need to provide some basic evidence of an injury to start the process. As set out above, the standard of proof is “as likely as not,” i.e., if the evidence is weighed 50/50, the tie goes to the worker. (See RSCM II, Policy #97.00.)

Workers also benefit from several evidentiary assumptions set out at RSCM II Policy #97.20. The RSCM II sets out a number of detailed policies on investigation of claims, use and weighing of evidence, and the powers that the Board has in investigating claims issues for determination. These powers are wide reaching and can be used at any stage of a claim. However, the need for extensive investigation typically occurs at the outset of a claim or when a worker seeks to have a new injury/symptom added to a claim. These policies, as well as policies governing acceptance and disclosure of information on a claim file, are set out at RSCM II Policies # 97.00–99.90, and at a number of more than 50 other policies. These policies are useful to review generally, but should always be specifically consulted when any issues around evidence/information arises on a claim file.

Also note that certain costs and expenses incurred by a worker in the course of a Board investigation/inquiry/appeal related to a claim can be reimbursed. These policies are set out at RSCM II Policies #100.00–100.83.

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Disability and Causation in Workers' Compensation (7:IX)

2023-09-12T19:22:06Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

== A. Types of Claims ==

Before a compensation claim can be accepted, the Board must find that the worker’s injury, death, or disease was disabling, and that the disability occurred as a result of employment. The WCA addresses these matters differently for different types of injuries and conditions:

* Sections 134 and 146 [Former Act, s. 5]: personal injury (physical or psychological)
* Section 135 [Former Act, s. 5.1]: psychological injury only (mental disorder)
* Section 136(1)[Former Act, s. 6(1)]): occupational disease – no presumption of work causation
* Section 137 [Former Act, s. 6(3)]: occupational disease – presumption of work causation
* Section 145 [Former Act, s. 7]: hearing loss

Detailed policies regarding each of these conditions are set out in the RSCM II. Chapter 3 sets out policies for personal and psychological injuries and compensable consequences. Chapter 4 sets out policies for all Occupational Diseases, including repetitive strain injuries and hearing loss. Students handling appeals should note that most causation disputes come down to matters of evidence, and the policies provide important guidance on what evidence is required in each case.

== B. Injury, Disease, or Both? ==

Because the statutory and policy requirements for an injury and Occupational Disease are different, it is important to consider the worker’s disability under the correct relevant category. Sometimes this is not clear.

Item C3-12.00 of the RSCM II has a helpful section on the distinction between an “injury” and a “disease.” Some conditions, like tendonitis or hearing loss, can be either an injury or a disease, depending on the circumstances of the injury. For example, hearing loss from a single occurrence like an explosion is treated as an injury, while gradual loss of hearing due to occupational noise is treated as a disease.

Sometimes, a worker is disabled by a combination of a slow-developing disease followed by a single event. The combination results in a significant disability, although neither event by itself would have been disabling. This is a difficult causation case. While the single event may not be sufficient to injure a healthy person, the worker is “working hurt,” so a minor event is sufficient to disable them. This is the compensation version of the “thin skull” victim in tort law. The Board may not accept work causation in the initial decision and deny the claim as not meeting the causal standard under WCA ss. 134 and 146 [Former Act, s. 5]. On review or appeal, the best way to address this matter is to have good evidence, preferably medical evidence, of the worker’s medical condition prior to the single event. The key for a finding of work causation under s. 134 is “causative significance.” Further, it is noted in court decisions that compensability will be denied only if personal or non-employment related factors are so dominant or exclusive that the compensable injury is not a significant causal factor (WCAT-2009-02226, affirmed by WCAT-2011-02511).

In some cases, the worker’s pre-existing condition is actually a developing Occupational Disease, such as gradual onset repetitive strain or gradual hearing loss. In these cases, you may wish to ask the Board to accept the pre-existing condition as a compensable Occupational Disease under section 136 and 137 [Former Act, s. 6]. If the Board denies this aspect as well, you may appeal this denial and join the two appeals together at the Review Division or WCAT so an appeal panel may consider the “whole worker.”

== C. Compensable Aggravation ==

For both injuries and Occupational Diseases, it is also recognized that the worker can have a preexisting condition which is aggravated or activated by the compensable injury or disease. For injuries, the relevant policy is set out in RSCM II, C3-16.00; for Occupational Diseases, the policy is set out in RSCM II, C4-25.20. It is necessary to distinguish between injuries or death resulting from employment (which are compensable), and injuries resulting from pre-existing conditions or diseases (which are not compensable). There must have been something in the employment activity or situation that had '''causative significance''' in producing the injury or death. In adjudicating these types of claims, the Board considers:

* the nature and extent of pre-existing injury;
* the nature and extent of the employment activity; and
* the degree to which the employment activity may have affected the pre-existing injury.

If the pre-existing condition meets the test for compensable aggravation, this requires an “aggravation” decision separate from a simple acceptance “decision.” For example, the Board may deny that a slip and fall was sufficient to cause a meniscus knee tear in a healthy worker; however, if the worker had pre-existing knee problems, the same claim could have a separate decision accepting an “aggravation” type injury.

If the worker has a pre-existing but non-disabling condition, and the claim is accepted, the worker’s injury is dealt with like any other claim and the whole disability is compensable.

However, if the worker has a pre-existing disabling condition and becomes further disabled in the same body part through a work injury, the Board will apply section 146 of the WCA [Former Act, s. 5(5)] or “proportionate entitlement” whereby compensation is paid only for the increase in disability, rather than the whole disability.

== D. Section 134: Personal Injury ==

Chapter 3 – Compensation for Personal Injury is the key chapter of the RSCM II that applies to s. 134 of the WCA [Former Act, s. 5]. This chapter covers the definition of a “personal injury” as well as “arising out of and in the course of employment.” It goes on to cover specific circumstances that can prevent an injury from being accepted, and specific losses and consequences that can be included in a claim.

=== 1. Did the Injury Happen at Work? ===

Under sections 134 and 146 of the WCA [Former Act, s. 5], personal injury or death must '''arise out of''' and '''in the course of''' employment in order to be compensable. It is important to check policies and WCAT decisions for qualifying factors, as they can change.

'''“Arising out of employment”''' relates to causation and means that the work must have '''causative significance''' to the injury. According to well-established jurisprudence, this means that the work does not have to be the sole or even the dominant cause of the injury; It must be only of causative significance greater than being trivial or ''de minimis'': [https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1574/2009bcsc1574.html?autocompleteStr=2009%2520BCSC%25201574&autocompletePos=1 ''Chima v Workers’ Compensation Appeal Tribunal'', 2009 BCSC 1574], [https://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc1580/2007bcsc1580.html?autocompleteStr=2007%2520BCSC%25201580&autocompletePos=1 ''Schulmeister v British Columbia (Workers’ Compensation Appeal Tribunal)'', 2007 BCSC 1580], and [https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc838/2006bcsc838.html?resultIndex=1|''Albert v British Columbia (Workers’ Compensation Appeal Tribunal)'', 2006 BCSC 838]. Not all injuries at work are caused by work, as some are naturally occurring conditions which would have happened in any event. For example, a worker with heart disease, who is working in a sedentary job, may have a heart attack at the office. There is likely nothing in the work activity which would have causative significance to this injury.

'''“In the course of employment”''' relates to the employment relationship at the time of injury. It generally refers to whether the injury or death happened at the time and place and during an activity reasonably related to the duties and expectations of the employment. Time and place are not strictly limited to the normal hours of work or the employer’s premises.

Injuries may be caused by the normal actions or movements involved in the workplace as opposed to an abnormal event. For example, injuries caused by overexertion or repetitive movements can still be grounds for compensation even when done during routine work (RSCM II, C3-12.00).

:'''NOTE''': There is a statutory presumption that if an injury is caused by an '''accident''' at work, the injury is presumed to have occurred in the course of employment (WCA s.134(3) [Former Act, s. 5(4)]). An accident can include someone else’s intentional act.

The determination of whether an injury arose out of and in the course of employment is set out in RSCM II, C3-14.00 and can be made with reference to factors such as:

* whether the injury occurred on the premises of the employer;
* whether it occurred in the process of doing something for the benefit of the employer;
* whether it occurred in the course of action taken in response to instructions from the employer;
* whether it occurred in the course of using equipment or materials supplied by the employer;
* whether the risk to which the worker was exposed was the same as the risk to which they are exposed in the normal course of production;
* whether the injury occurred during a time period for which the worker was being paid;
* whether the injury was caused by some activity of the employer or of a fellow worker;
* whether the injury occurred while the worker was performing activities that were part of their regular job duties; and
* whether the injury occurred while the worker was being supervised by the employer.

This list is not exhaustive, and alone, none of the above factors are conclusive.

RSCM II, Chapter 3 sets out further and detailed criteria for acceptance of a claim under sections 134 and 146 of the WCA [Former Act, s. 5]. Current policy states that the injury need not occur while the worker is engaged in specific productive acts, so long as it occurs within the broad circumstances of carrying out the employment duties. An injury incurred while commuting is generally not a compensable injury. However, travelling may be considered an activity in the course of employment if travel is part of the worker’s duties or if the accident occurs on the employer’s property or on a “captive road” provided and controlled by the employer, such as logging roads used by forestry workers.

If serious and willful misconduct on the part of the worker is the sole cause of the injury, no compensation is paid unless death or severe disability results.

=== 2. Secondary Conditions ===

Where the worker suffers consequences from the injury, in addition to the injury, these may be “compensable consequences.” Some common compensable consequences of injury include chronic pain and the development of psychological conditions after the initial injury (unless they arise due to the WCB process). The test for whether a secondary condition is compensable is also '''causative significance''', meaning that the initial injury does not have to be the sole or dominant cause of the secondary injury. It must only be of causative significance greater than being trivial.

As discussed above, if the worker suffered from a pre-existing condition and the injury aggravates, accelerates, or activates this condition, the resulting aggravation may also be compensable. ('''Note''': this policy is complex and should be consulted for specific details.)

The [https://www.canlii.org/en/ca/scc/doc/2000/2000scc3/2000scc3.html?autocompleteStr=Kovach%2520v%2520work&autocompletePos=1 ''Kovach v Singh (Kovach v WCB)'', [2000<nowiki>]</nowiki> SCJ No 3] decision upheld the Board’s policy that a worker who is undergoing treatment for a work injury remains in the course of employment, even if the treatment takes place long after the job itself has ended (even years after). This decision means that workers undergoing treatment for an injury or disease generally cannot sue negligent medical providers for medical malpractice.

See also RSCM II, C3-22.00–22.40.

== E. Section 136: Occupational Diseases ==

=== 1. Overview of Compensable Occupational Diseases ===

An Occupational Disease is a particular disease or medical condition which is recognized by the Board as likely or possibly caused by work, based on scientific evidence. The Board “recognizes” an Occupational Disease formally by listing it in a policy. These lists are updated as new scientific evidence becomes available. A “disease” is a broad category which includes exposures, cancers, poisons, repetitive strain injuries, hearing loss, and contagious and respiratory diseases.

To determine if a worker’s medical condition is a recognized Occupational Disease, consult the two policy provisions listing the recognized Occupational Diseases: '''Appendix 2 (RSCM II)/Schedule 1 (WCA)''', which sets out Occupational Diseases recognized as qualifying for a presumption of work causation for certain industries, and '''RSCM II, C4-25.00''', which sets out additional Occupational Diseases recognized by Regulation. Each type has different tests for work causation, which must be met if the Occupational Disease is to be accepted by the Board as compensable.

=== 2. Occupational Diseases Listed in Schedule 1 (Appendix 2 of the RSCM II) ===

Occupational Diseases listed in WCA Schedule 1 [Former Act, Schedule B] are matched with the particular industries in which they commonly occur. If the worker has that disease and works in the listed industry at the time of disablement, the Occupational Disease is presumed to have been caused by that work unless the contrary is proven (WCA, s. 137 [Former Act, s. 6(3)]). A presumption of work causation only arises for diseases mentioned in Schedule 1 when the worker is working in the listed industry immediately before the date of disablement. Otherwise, no presumption applies. Also,the contrary may be proven in an individual case. For example, where a worker was employed as a coal miner at or before the date of disablement, silicosis is compensable unless it is proven to have been caused by non-work factors such as smoking.

Occupational Diseases in Schedule 1 include certain kinds of cancers, respiratory diseases including asbestosis, and repetitive strain injuries. If a worker has aSchedule 1 disease but does not work in the listed industry, the worker’s Occupational Disease can still be compensable if work causation can be proven under WCA s. 136(1) [Former Act, s. 6(1)]. In addition, section 139 of the WCA [Former Act, s. 6.1] sets out a special work presumption for firefighters who suffer a heart attack on the job.

C4-25.20 of the RSCM II provides a helpful guide to the special rules for a Schedule 1 presumption.

=== 3. Occupational Diseases Listed in C4-25.10 of the RSCM II ===

Additional Occupational Diseases are listed in RSCM II, C4-25.10, including many repetitive strain injuries and specific conditions such as plantar fasciitis and lyme disease. These diseases must be adjudicated under s. 136(1) of the WCA [Former Act, s. 6(1)], where work causation must be proven in each case.

Section 136(1) states that if:

* the worker has an occupational disease that disables the worker from earning full wages at the work at which the worker was employed; or
* the death of the worker is caused by an occupational disease; and
* the occupational disease is due to the nature of any employment in which the worker was employed, whether under one or more employments; then:

compensation is payable as if the disease were a personal injury arising out of and in the course of that employment. The absence of a specific incident may mean that the worker has a disease rather than a personal injury.

In addition to these statutory provisions, RSCM II, C4-25.20 sets out guidance for establishing work causation for Occupational Diseases in general, and sets out the onus of proof for non-presumptive Occupational Disease causation. This policy can be helpful guidance when framing a submission on causation for a s. 136(1) [Former Act, s. 6(1)] Occupational Disease case.

There are also particular policies applying to particular conditions, organized by type of condition, which are usually referenced in decision letters involving those conditions.

Items C4-27.00–27.40 of the RSCM II apply to particular repetitive strain injuries/activity related soft tissue disorders (“'''ASTDs'''”). Note that most ASTDs can be injuries or diseases, and many are listed in Schedule 1 [Former Act, Schedule B] (i.e., they may or may not qualify for the work related presumption).

* RSCM II, C4-28.00 for Contagious Diseases (e.g., mumps)
* RSCM II, C4-29.00–29.10 for Respiratory Diseases (e.g., asthma, silicosis, asbestosis)
* RSCM II, C4-30.00 for Cancers
* RSCM II, C4-31.00 for Hearing Loss
* RSCM II, C4-32.00 for Other Matters

== F. Workers’ Compensation in Relation to COVID-19 ==

Along with other benefits such as CERB, CRB, CRSB, CRCB, and the BC Emergency Benefit for Workers, it possible to receive compensation from the Board for contracting COVID-19 in the course of employment. The facts required for a successful claim are:

# There is evidence that the worker has contracted COVID-19; and
# The nature of the worker’s employment created a risk of contracting the disease
significantly greater than the ordinary exposure risk of the public at large.

It is important to note that a positive COVID-19 test is not required, as a medical diagnosis or other supporting evidence can be sufficient. That being said, some evidence of physical symptoms will be necessary without a conclusive positive test, as WorkSafeBC does not compensate workers for quarantine due to close contact.

In reference to the second factor, the risk related to employment is determined by a whether a worker will be naturally exposed to those who have been diagnosed with COVID-19, such as hospital workers, or workers who have regular close interactions with customers, such as retail workers.

More information can be found at [http://www.worksafebc.com/covid-19. www.worksafebc.com/covid-19.]

== G. Special Issues for Occupational Disease Cases ==

=== 1. Date of Disablement ===

For an Occupational Disease, '''the first date of disablement is treated as the “date of injury”''' for the purpose of calculating the one-year time period to submit a compensation application (WCA, s. 151 [Former Act, s. 55]). Special rules apply for late applications for Occupational Diseases and for Federal Workers (see RSCM II, C4-26.00).

=== 2. Timely Application & Health Care ===

For diseases with a long latency period such as asbestosis and most cancers, a timely application may result in only receiving health care benefits at first. These healthcare benefits can include, for example, medical benefits, necessary adjustments to the residential home, and homecare. These benefits may also be claimed by dependants if the worker has died.

=== 3. Standard of Proof ===

Schedule 1 diseases and the diseases recognized by regulation (RSCM II, C4-25.10) have an “as likely as not” standard of proof for causation (WCA s. 339 [Former Act, s. 99]). This means that where the evidence is equally weighted for different interpretations, the interpretation that favours the worker should be preferred. For example, the Supreme Court of Canada upheld a WCAT decision that an unusually high rate of cancer in a group of lab technicians was an Occupational Disease and therefore compensable ([https://www.canlii.org/en/ca/scc/doc/2016/2016scc25/2016scc25.html?autocompleteStr=Fraser%2520Health%2520Authority%2520v%2520Workers%2520Compensation%2520Appeal%2520Tribunal%252C%25202016%2520SCC%252025&autocompletePos=1 ''Fraser Health Authority v Workers Compensation Appeal Tribunal'', 2016 SCC 25]). Though experts had found little positive evidence supporting this link, the cancer rate in this group was highly unusual. Combined with the significant possibility of non trivial exposure to harmful substances in the workplace, WCAT decided that that was enough to satisfy the “as likely as not” standard.

=== 4. Survivor Benefits ===

If a worker’s disease causes death, the worker’s spouse may be entitled to survivor benefits, even if the worker was not eligible for compensation.

:'''NOTE''': WorkSafeBC has developed the Exposure Registry Program, which is designed to be a forum for workers, employers, or others to report work-related exposures. This registry is intended to track incidents of exposure to substances which are known to be harmful (such as asbestos), as well as exposures which may in the future be shown to cause disease (such as power line emissions). The information obtained through the registry will create a permanent record of a worker’s exposure and will assist WorkSafeBC in establishing that the manifestation of a disease was due to the nature of the employment in which the worker was employed (a requirement under s. 136(1)(b) of the WCA [Former Act, s. 6(1)(b)]). This will simplify the adjudication of future claims for occupational diseases caused by workplace exposure.

== H. Section 135: Psychological Injuries ==

A worker can claim for diagnosed psychological conditions which arise as a consequence of physical injuries or Occupational Diseases which are accepted under ss. 134, 135, or 146 of the WCA [Former Act, ss. 5–6]. Common psychological consequences include chronic pain and depressive disorders. In practice, psychological limitations and restrictions can often be an overlooked aspect of an injured worker’s reduced employability. However, they are important to recognize, diagnose, and treat as this may be the difference between a successful rehabilitation and a failed one. When seeking acceptance of a psychological consequence of a compensable physical condition, the causal threshold is the same standard of “causative significance” – is the accepted physical injury a significant contributing cause of the psychological condition, meaning something more than a trivial or insignificant factor? If so, the psychological consequence is compensable as well, including treatment. The physical injury does not need to be the sole or even most significant cause. See RSCM II, C3-22.30.

However, a worker may suffer a psychological injury alone, with no accompanying physical condition. Common examples include Post Traumatic Stress Disorder (PTSD) or Major Depressive Disorder (MDD). In such cases, the worker can claim for purely psychological injuries from their work under section 135 of the WCA [Former Act, s. 5.1] and RSCM II, C3-24.00–24.10.

Section 135 of the WCA [Former Act, s. 5.1] provides for two types of psychological injuries, each with a different causation test. A worker can claim for a psychological injury that is either:

# a reaction to one or more traumatic events arising out of and in the course of employment; or
# predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of such stressors, arising out of and in the course of employment.

A psychological injury which arises from a traumatic event must meet the usual causation test that employment was “as likely as not” the cause of the condition. Additionally, determining whether an event was traumatic involves both subjective and objective elements, but the subjective element is paramount (see ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1178/2018bcsc1178.html?autocompleteStr=2018%2520BCSC%25201178%2520&autocompletePos=1 Atkins v British Columbia (Workers’ Compensation Appeal Tribunal)'', 2018 BCSC 1178 at para 78]). The objective question is only to determine if the event is “identifiable.”

A psychological injury which is caused by “stressors” (vs. “traumatic events”) must meet the “predominant cause” standard. This is a significant hurdle for workers with pre-existing psychological conditions who become disabled after work stressors, such as bullying or harassment. These conditions do not have to result in an injury immediately, stressors can make up the predominate cause of a condition that takes time to manifest or be diagnosed.

Section 135 of the WCA [Former Act, s. 5.1] also requires that a psychological condition be diagnosed as a mental disorder by a registered psychiatrist or psychologist.

Section 135 also provides that a mental disorder arising from a decision by the worker’s employer related to the employment (e.g., a change in job description or working conditions, or termination of employment) is specifically excluded from compensation. However, an employer may not communicate a management decision in any way it wants and communication that humiliates, intimidates, or amounts to bullying, harassment, threats, or abuse may be beyond s. 135(1)(c) [Former Act, s. 5.1(1)(c)] protection.

Psychological injuries that result from interaction with WCB and the claims process are also not compensable (see noteworthy decision WCAT-2015-01459). Though they would not happen ''but for'' the workplace injury, they are too remote to be compensable. Exceptions may arise in special circumstances, e.g., where the Board has acted negligently, or in bad faith.

Section 135(2) of the WCA [Former Act, s. 5.1(1.1)] creates a rebuttable presumption for eligible occupations that a worker’s mental disorder is a reaction to one or more traumatic events arising out of and in the course of their employment. The presumption applies where the worker is:

* exposed to one or more traumatic events arising out of and in the course of the worker’s employment in an eligible occupation; and
* diagnosed by a psychiatrist or psychologist with a mental disorder that is recognized in the most recent DSM at the time of diagnosis, as a mental or physical condition that may arise from exposure to a traumatic event.

In making determinations regarding mental disorders, the Board must make both a subjective and objective analysis of the situation. Certain workplace interactions or events can, on the surface, seem innocent, but within the context of the work environment and the employee constitute a stressor or series of stressors that can be seen as either significant or traumatic as described by item C3-13.00 of the RSCM II.

In making this determination, a worker’s general characteristics and history are relevant. For example, an employee with past trauma related to a certain incident may find related stressors more aggravating. That being said, the worker’s concerns and complaints must still be grounded in reality.

The ''Act'' also defines an eligible occupation to mean the occupation of a correctional officer, emergency medical assistant, firefighter, police officer, or sheriff.

As of May 16, 2019, this mental health presumption was extended to emergency dispatchers and publicly funded health-care assistants.

== I. Section 145: Non-Traumatic Hearing Loss ==

Significant hearing loss caused by exposure to industrial noise in the course of employment is compensable. The worker must submit tests showing the loss of hearing and complete a special application form listing all employment and non-employment noise exposure. See ss. 145 and 198 and Schedule 2 of the WCA [Former Act, s. 7 and Schedule D].

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Disability and Causation in Workers' Compensation (7:IX)

2023-09-12T19:19:18Z

Clicklaw Editor: /* A. Types of Claims */

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

== A. Types of Claims ==

Before a compensation claim can be accepted, the Board must find that the worker’s injury, death, or disease was disabling, and that the disability occurred as a result of employment. The WCA addresses these matters differently for different types of injuries and conditions:

* Sections 134 and 146 [Former Act, s. 5]: personal injury (physical or psychological)
* Section 135 [Former Act, s. 5.1]: psychological injury only (mental disorder)
* Section 136(1)[Former Act, s. 6(1)]): occupational disease – no presumption of work causation
* Section 137 [Former Act, s. 6(3)]: occupational disease – presumption of work causation
* Section 145 [Former Act, s. 7]: hearing loss

Detailed policies regarding each of these conditions are set out in the RSCM II. Chapter 3 sets out policies for personal and psychological injuries and compensable consequences. Chapter 4 sets out policies for all Occupational Diseases, including repetitive strain injuries and hearing loss. Students handling appeals should note that most causation disputes come down to matters of evidence, and the policies provide important guidance on what evidence is required in each case.

== B. Injury, Disease, or Both? ==

Because the statutory and policy requirements for an injury and Occupational Disease are different, it is important to consider the worker’s disability under the correct relevant category. Sometimes this is not clear.

Item C3-12.00 of the RSCM II has a helpful section on the distinction between an “injury” and a “disease.” Some conditions, like tendonitis or hearing loss, can be either an injury or a disease, depending on the circumstances of the injury. For example, hearing loss from a single occurrence like an explosion is treated as an injury, while gradual loss of hearing due to occupational noise is treated as a disease.

Sometimes, a worker is disabled by a combination of a slow-developing disease followed by a single event. The combination results in a significant disability, although neither event by itself would have been disabling. This is a difficult causation case. While the single event may not be sufficient to injure a healthy person, the worker is “working hurt,” so a minor event is sufficient to disable them. This is the compensation version of the “thin skull” victim in tort law. The Board may not accept work causation in the initial decision and deny the claim as not meeting the causal standard under WCA ss. 134 and 146 [Former Act, s. 5]. On review or appeal, the best way to address this matter is to have good evidence, preferably medical evidence, of the worker’s medical condition prior to the single event. The key for a finding of work causation under s. 134 is “causative significance.” Further, it is noted in court decisions that compensability will be denied only if personal or non-employment related factors are so dominant or exclusive that the compensable injury is not a significant causal factor (WCAT-2009-02226, affirmed by WCAT-2011-02511).

In some cases, the worker’s pre-existing condition is actually a developing Occupational Disease, such as gradual onset repetitive strain or gradual hearing loss. In these cases, you may wish to ask the Board to accept the pre-existing condition as a compensable Occupational Disease under section 136 and 137 [Former Act, s. 6]. If the Board denies this aspect as well, you may appeal this denial and join the two appeals together at the Review Division or WCAT so an appeal panel may consider the “whole worker.”

== C. Compensable Aggravation ==

For both injuries and Occupational Diseases, it is also recognized that the worker can have a preexisting condition which is aggravated or activated by the compensable injury or disease. For injuries, the relevant policy is set out in RSCM II, C3-16.00; for Occupational Diseases, the policy is set out in RSCM II, C4-25.20. It is necessary to distinguish between injuries or death resulting from employment (which are compensable), and injuries resulting from pre-existing conditions or diseases (which are not compensable). There must have been something in the employment activity or situation that had '''causative significance''' in producing the injury or death. In adjudicating these types of claims, the Board considers:

* the nature and extent of pre-existing injury;

* the nature and extent of the employment activity; and

* the degree to which the employment activity may have affected the pre-existing injury.

If the pre-existing condition meets the test for compensable aggravation, this requires an “aggravation” decision separate from a simple acceptance “decision.” For example, the Board may deny that a slip and fall was sufficient to cause a meniscus knee tear in a healthy worker; however, if the worker had pre-existing knee problems, the same claim could have a separate decision accepting an “aggravation” type injury.

If the worker has a pre-existing but non-disabling condition, and the claim is accepted, the worker’s injury is dealt with like any other claim and the whole disability is compensable.

However, if the worker has a pre-existing disabling condition and becomes further disabled in the same body part through a work injury, the Board will apply section 146 of the WCA [Former Act, s. 5(5)] or “proportionate entitlement” whereby compensation is paid only for the increase in disability, rather than the whole disability.

== D. Section 134: Personal Injury ==

Chapter 3 – Compensation for Personal Injury is the key chapter of the RSCM II that applies to s. 134 of the WCA [Former Act, s. 5]. This chapter covers the definition of a “personal injury” as well as “arising out of and in the course of employment.” It goes on to cover specific circumstances that can prevent an injury from being accepted, and specific losses and consequences that can be included in a claim.

=== 1. Did the Injury Happen at Work? ===

Under sections 134 and 146 of the WCA [Former Act, s. 5], personal injury or death must '''arise out of''' and '''in the course of''' employment in order to be compensable. It is important to check policies and WCAT decisions for qualifying factors, as they can change.

'''“Arising out of employment”''' relates to causation and means that the work must have '''causative significance''' to the injury. According to well-established jurisprudence, this means that the work does not have to be the sole or even the dominant cause of the injury; It must be only of causative significance greater than being trivial or ''de minimis'': [https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1574/2009bcsc1574.html?autocompleteStr=2009%2520BCSC%25201574&autocompletePos=1 ''Chima v Workers’ Compensation Appeal Tribunal'', 2009 BCSC 1574], [https://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc1580/2007bcsc1580.html?autocompleteStr=2007%2520BCSC%25201580&autocompletePos=1 ''Schulmeister v British Columbia (Workers’ Compensation Appeal Tribunal)'', 2007 BCSC 1580], and [https://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc838/2006bcsc838.html?resultIndex=1|''Albert v British Columbia (Workers’ Compensation Appeal Tribunal)'', 2006 BCSC 838]. Not all injuries at work are caused by work, as some are naturally occurring conditions which would have happened in any event. For example, a worker with heart disease, who is working in a sedentary job, may have a heart attack at the office. There is likely nothing in the work activity which would have causative significance to this injury.

'''“In the course of employment”''' relates to the employment relationship at the time of injury. It generally refers to whether the injury or death happened at the time and place and during an activity reasonably related to the duties and expectations of the employment. Time and place are not strictly limited to the normal hours of work or the employer’s premises.

Injuries may be caused by the normal actions or movements involved in the workplace as opposed to an abnormal event. For example, injuries caused by overexertion or repetitive movements can still be grounds for compensation even when done during routine work (RSCM II, C3-12.00).

'''NOTE''': There is a statutory presumption that if an injury is caused by an '''accident''' at work, the injury is presumed to have occurred in the course of employment (WCA s.134(3) [Former Act, s. 5(4)]). An accident can include someone else’s intentional act.

The determination of whether an injury arose out of and in the course of employment is set out in RSCM II, C3-14.00 and can be made with reference to factors such as:

* whether the injury occurred on the premises of the employer;

* whether it occurred in the process of doing something for the benefit of the employer;

* whether it occurred in the course of action taken in response to instructions from the employer;

* whether it occurred in the course of using equipment or materials supplied by the employer;

* whether the risk to which the worker was exposed was the same as the risk to which they are exposed in the normal course of production;

* whether the injury occurred during a time period for which the worker was being paid;

* whether the injury was caused by some activity of the employer or of a fellow worker;

* whether the injury occurred while the worker was performing activities that were part of their regular job duties; and

* whether the injury occurred while the worker was being supervised by the employer.

This list is not exhaustive, and alone, none of the above factors are conclusive.

RSCM II, Chapter 3 sets out further and detailed criteria for acceptance of a claim under sections 134 and 146 of the WCA [Former Act, s. 5]. Current policy states that the injury need not occur while the worker is engaged in specific productive acts, so long as it occurs within the broad circumstances of carrying out the employment duties. An injury incurred while commuting is generally not a compensable injury. However, travelling may be considered an activity in the course of employment if travel is part of the worker’s duties or if the accident occurs on the employer’s property or on a “captive road” provided and controlled by the employer, such as logging roads used by forestry workers.

If serious and willful misconduct on the part of the worker is the sole cause of the injury, no compensation is paid unless death or severe disability results.

=== 2. Secondary Conditions ===

Where the worker suffers consequences from the injury, in addition to the injury, these may be “compensable consequences.” Some common compensable consequences of injury include chronic pain and the development of psychological conditions after the initial injury (unless they arise due to the WCB process). The test for whether a secondary condition is compensable is also '''causative significance''', meaning that the initial injury does not have to be the sole or dominant cause of the secondary injury. It must only be of causative significance greater than being trivial.

As discussed above, if the worker suffered from a pre-existing condition and the injury aggravates, accelerates, or activates this condition, the resulting aggravation may also be compensable. ('''Note''': this policy is complex and should be consulted for specific details.)

The [https://www.canlii.org/en/ca/scc/doc/2000/2000scc3/2000scc3.html?autocompleteStr=Kovach%2520v%2520work&autocompletePos=1 ''Kovach v Singh (Kovach v WCB)'', [2000<nowiki>]</nowiki> SCJ No 3] decision upheld the Board’s policy that a worker who is undergoing treatment for a work injury remains in the course of employment, even if the treatment takes place long after the job itself has ended (even years after). This decision means that workers undergoing treatment for an injury or disease generally cannot sue negligent medical providers for medical malpractice.

See also RSCM II, C3-22.00–22.40.

== E. Section 136: Occupational Diseases ==

=== 1. Overview of Compensable Occupational Diseases ===

An Occupational Disease is a particular disease or medical condition which is recognized by the Board as likely or possibly caused by work, based on scientific evidence. The Board “recognizes” an Occupational Disease formally by listing it in a policy. These lists are updated as new scientific evidence becomes available. A “disease” is a broad category which includes exposures, cancers, poisons, repetitive strain injuries, hearing loss, and contagious and respiratory diseases.

To determine if a worker’s medical condition is a recognized Occupational Disease, consult the two policy provisions listing the recognized Occupational Diseases: '''Appendix 2 (RSCM II)/Schedule 1 (WCA)''', which sets out Occupational Diseases recognized as qualifying for a presumption of work causation for certain industries, and '''RSCM II, C4-25.00''', which sets out additional Occupational Diseases recognized by Regulation. Each type has different tests for work causation, which must be met if the Occupational Disease is to be accepted by the Board as compensable.

=== 2. Occupational Diseases Listed in Schedule 1 (Appendix 2 of the RSCM II) ===

Occupational Diseases listed in WCA Schedule 1 [Former Act, Schedule B] are matched with the particular industries in which they commonly occur. If the worker has that disease and works in the listed industry at the time of disablement, the Occupational Disease is presumed to have been caused by that work unless the contrary is proven (WCA, s. 137 [Former Act, s. 6(3)]). A presumption of work causation only arises for diseases mentioned in Schedule 1 when the worker is working in the listed industry immediately before the date of disablement. Otherwise, no presumption applies. Also,the contrary may be proven in an individual case. For example, where a worker was employed as a coal miner at or before the date of disablement, silicosis is compensable unless it is proven to have been caused by non-work factors such as smoking.

Occupational Diseases in Schedule 1 include certain kinds of cancers, respiratory diseases including asbestosis, and repetitive strain injuries. If a worker has aSchedule 1 disease but does not work in the listed industry, the worker’s Occupational Disease can still be compensable if work causation can be proven under WCA s. 136(1) [Former Act, s. 6(1)]. In addition, section 139 of the WCA [Former Act, s. 6.1] sets out a special work presumption for firefighters who suffer a heart attack on the job.

C4-25.20 of the RSCM II provides a helpful guide to the special rules for a Schedule 1 presumption.

=== 3. Occupational Diseases Listed in C4-25.10 of the RSCM II ===

Additional Occupational Diseases are listed in RSCM II, C4-25.10, including many repetitive strain injuries and specific conditions such as plantar fasciitis and lyme disease. These diseases must be adjudicated under s. 136(1) of the WCA [Former Act, s. 6(1)], where work causation must be proven in each case.

Section 136(1) states that if:

* the worker has an occupational disease that disables the worker from earning full wages at the work at which the worker was employed; or

* the death of the worker is caused by an occupational disease; and

* the occupational disease is due to the nature of any employment in which the worker was employed, whether under one or more employments; then:

compensation is payable as if the disease were a personal injury arising out of and in the course of that employment. The absence of a specific incident may mean that the worker has a disease rather than a personal injury.

In addition to these statutory provisions, RSCM II, C4-25.20 sets out guidance for establishing work causation for Occupational Diseases in general, and sets out the onus of proof for non-presumptive Occupational Disease causation. This policy can be helpful guidance when framing a submission on causation for a s. 136(1) [Former Act, s. 6(1)] Occupational Disease case.

There are also particular policies applying to particular conditions, organized by type of condition, which are usually referenced in decision letters involving those conditions.

Items C4-27.00–27.40 of the RSCM II apply to particular repetitive strain injuries/activity related soft tissue disorders (“'''ASTDs'''”). Note that most ASTDs can be injuries or diseases, and many are listed in Schedule 1 [Former Act, Schedule B] (i.e., they may or may not qualify for the work related presumption).

* RSCM II, C4-28.00 for Contagious Diseases (e.g., mumps)

* RSCM II, C4-29.00–29.10 for Respiratory Diseases (e.g., asthma, silicosis, asbestosis)

* RSCM II, C4-30.00 for Cancers

* RSCM II, C4-31.00 for Hearing Loss

* RSCM II, C4-32.00 for Other Matters

== F. Workers’ Compensation in Relation to COVID-19 ==

Along with other benefits such as CERB, CRB, CRSB, CRCB, and the BC Emergency Benefit for Workers, it possible to receive compensation from the Board for contracting COVID-19 in the course of employment. The facts required for a successful claim are:

# There is evidence that the worker has contracted COVID-19; and
# The nature of the worker’s employment created a risk of contracting the disease
significantly greater than the ordinary exposure risk of the public at large.

It is important to note that a positive COVID-19 test is not required, as a medical diagnosis or other supporting evidence can be sufficient. That being said, some evidence of physical symptoms will be necessary without a conclusive positive test, as WorkSafeBC does not compensate workers for quarantine due to close contact.

In reference to the second factor, the risk related to employment is determined by a whether a worker will be naturally exposed to those who have been diagnosed with COVID-19, such as hospital workers, or workers who have regular close interactions with customers, such as retail workers.

More information can be found at [http://www.worksafebc.com/covid-19. www.worksafebc.com/covid-19.]

== G. Special Issues for Occupational Disease Cases ==

=== 1. Date of Disablement ===

For an Occupational Disease, '''the first date of disablement is treated as the “date of injury”''' for the purpose of calculating the one-year time period to submit a compensation application (WCA, s. 151 [Former Act, s. 55]). Special rules apply for late applications for Occupational Diseases and for Federal Workers (see RSCM II, C4-26.00).

=== 2. Timely Application & Health Care ===

For diseases with a long latency period such as asbestosis and most cancers, a timely application may result in only receiving health care benefits at first. These healthcare benefits can include, for example, medical benefits, necessary adjustments to the residential home, and homecare. These benefits may also be claimed by dependants if the worker has died.

=== 3. Standard of Proof ===

Schedule 1 diseases and the diseases recognized by regulation (RSCM II, C4-25.10) have an “as likely as not” standard of proof for causation (WCA s. 339 [Former Act, s. 99]). This means that where the evidence is equally weighted for different interpretations, the interpretation that favours the worker should be preferred. For example, the Supreme Court of Canada upheld a WCAT decision that an unusually high rate of cancer in a group of lab technicians was an Occupational Disease and therefore compensable ([https://www.canlii.org/en/ca/scc/doc/2016/2016scc25/2016scc25.html?autocompleteStr=Fraser%2520Health%2520Authority%2520v%2520Workers%2520Compensation%2520Appeal%2520Tribunal%252C%25202016%2520SCC%252025&autocompletePos=1 ''Fraser Health Authority v Workers Compensation Appeal Tribunal'', 2016 SCC 25]). Though experts had found little positive evidence supporting this link, the cancer rate in this group was highly unusual. Combined with the significant possibility of non trivial exposure to harmful substances in the workplace, WCAT decided that that was enough to satisfy the “as likely as not” standard.

=== 4. Survivor Benefits ===

If a worker’s disease causes death, the worker’s spouse may be entitled to survivor benefits, even if the worker was not eligible for compensation.

'''NOTE''': WorkSafeBC has developed the Exposure Registry Program, which is designed to be a forum for workers, employers, or others to report work-related exposures. This registry is intended to track incidents of exposure to substances which are known to be harmful (such as asbestos), as well as exposures which may in the future be shown to cause disease (such as power line emissions). The information obtained through the registry will create a permanent record of a worker’s exposure and will assist WorkSafeBC in establishing that the manifestation of a disease was due to the nature of the employment in which the worker was employed (a requirement under s. 136(1)(b) of the WCA [Former Act, s. 6(1)(b)]). This will simplify the adjudication of future claims for occupational diseases caused by workplace exposure.

== H. Section 135: Psychological Injuries ==

A worker can claim for diagnosed psychological conditions which arise as a consequence of physical injuries or Occupational Diseases which are accepted under ss. 134, 135, or 146 of the WCA [Former Act, ss. 5–6]. Common psychological consequences include chronic pain and depressive disorders. In practice, psychological limitations and restrictions can often be an overlooked aspect of an injured worker’s reduced employability. However, they are important to recognize, diagnose, and treat as this may be the difference between a successful rehabilitation and a failed one. When seeking acceptance of a psychological consequence of a compensable physical condition, the causal threshold is the same standard of “causative significance” – is the accepted physical injury a significant contributing cause of the psychological condition, meaning something more than a trivial or insignificant factor? If so, the psychological consequence is compensable as well, including treatment. The physical injury does not need to be the sole or even most significant cause. See RSCM II, C3-22.30.

However, a worker may suffer a psychological injury alone, with no accompanying physical condition. Common examples include Post Traumatic Stress Disorder (PTSD) or Major Depressive Disorder (MDD). In such cases, the worker can claim for purely psychological injuries from their work under section 135 of the WCA [Former Act, s. 5.1] and RSCM II, C3-24.00–24.10.

Section 135 of the WCA [Former Act, s. 5.1] provides for two types of psychological injuries, each with a different causation test. A worker can claim for a psychological injury that is either:

# a reaction to one or more traumatic events arising out of and in the course of employment; or
# predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of such stressors, arising out of and in the course of employment.

A psychological injury which arises from a traumatic event must meet the usual causation test that employment was “as likely as not” the cause of the condition. Additionally, determining whether an event was traumatic involves both subjective and objective elements, but the subjective element is paramount (see ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1178/2018bcsc1178.html?autocompleteStr=2018%2520BCSC%25201178%2520&autocompletePos=1 Atkins v British Columbia (Workers’ Compensation Appeal Tribunal)'', 2018 BCSC 1178 at para 78]). The objective question is only to determine if the event is “identifiable.”

A psychological injury which is caused by “stressors” (vs. “traumatic events”) must meet the “predominant cause” standard. This is a significant hurdle for workers with pre-existing psychological conditions who become disabled after work stressors, such as bullying or harassment. These conditions do not have to result in an injury immediately, stressors can make up the predominate cause of a condition that takes time to manifest or be diagnosed.

Section 135 of the WCA [Former Act, s. 5.1] also requires that a psychological condition be diagnosed as a mental disorder by a registered psychiatrist or psychologist.

Section 135 also provides that a mental disorder arising from a decision by the worker’s employer related to the employment (e.g., a change in job description or working conditions, or termination of employment) is specifically excluded from compensation. However, an employer may not communicate a management decision in any way it wants and communication that humiliates, intimidates, or amounts to bullying, harassment, threats, or abuse may be beyond s. 135(1)(c) [Former Act, s. 5.1(1)(c)] protection.

Psychological injuries that result from interaction with WCB and the claims process are also not compensable (see noteworthy decision WCAT-2015-01459). Though they would not happen ''but for'' the workplace injury, they are too remote to be compensable. Exceptions may arise in special circumstances, e.g., where the Board has acted negligently, or in bad faith.

Section 135(2) of the WCA [Former Act, s. 5.1(1.1)] creates a rebuttable presumption for eligible occupations that a worker’s mental disorder is a reaction to one or more traumatic events arising out of and in the course of their employment. The presumption applies where the worker is:

* exposed to one or more traumatic events arising out of and in the course of the worker’s employment in an eligible occupation; and

* diagnosed by a psychiatrist or psychologist with a mental disorder that is recognized in the most recent DSM at the time of diagnosis, as a mental or physical condition that may arise from exposure to a traumatic event.

In making determinations regarding mental disorders, the Board must make both a subjective and objective analysis of the situation. Certain workplace interactions or events can, on the surface, seem innocent, but within the context of the work environment and the employee constitute a stressor or series of stressors that can be seen as either significant or traumatic as described by item C3-13.00 of the RSCM II.

In making this determination, a worker’s general characteristics and history are relevant. For example, an employee with past trauma related to a certain incident may find related stressors more aggravating. That being said, the worker’s concerns and complaints must still be grounded in reality.

The ''Act'' also defines an eligible occupation to mean the occupation of a correctional officer, emergency medical assistant, firefighter, police officer, or sheriff.

As of May 16, 2019, this mental health presumption was extended to emergency dispatchers and publicly funded health-care assistants.

== I. Section 145: Non-Traumatic Hearing Loss ==

Significant hearing loss caused by exposure to industrial noise in the course of employment is compensable. The worker must submit tests showing the loss of hearing and complete a special application form listing all employment and non-employment noise exposure. See ss. 145 and 198 and Schedule 2 of the WCA [Former Act, s. 7 and Schedule D].

{{LSLAP Manual Navbox|type=chapters1-7}}

Worker Status for Workers' Compensation (7:VIII)

2023-09-12T19:15:59Z

Clicklaw Editor:

{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}

While most people who work in BC will be covered by the WCA, not everyone is covered. No claim will be successful if it is found that an individual does not have worker status.

== A. General ==

The WCA was amended on January 1, 1994 to expand the range of workers covered. '''All workers are now covered unless specifically exempted'''. Chapter 2 of the RSCM II sets out the general principles of inclusion and the exceptions. The Assessment Manual at Policy Items AP1-1-1 through AP1-1-7 sets out the principles governing coverage for employers and workers under the WCA. Even certain volunteers are covered, as are students engaged in work-study programs that are approved by the Board. Before this amendment, most office workers and other white-collar workers were not covered. Since the amendment, only a few exceptions have been recognized, such as professional athletes who have accepted a high level of risk, casual babysitters, and non-residents. Requests for exemptions may come from workers and employers or may be initiated by the Board. Decisions regarding exemption status may be appealed.

The Assessment Manual sets out certain exclusions at Policy Item AP1-4-1. Issues surrounding variances, specific industries, and personal optional protection (generally used by self-employed individuals) are discussed at Policy Items AP1-4-2 to AP1-8-1.

It is important to note that if a worker chooses to pursue compensation through WCB, it means that they forego their right to sue for damages in tort. Where the tortfeasor is not a worker or employee, WCB may pursue claims against non-workers.

Some special cases are set out below, but at all times, the most recent version of policies in Chapter 2 of the RSCM II should be consulted if “worker status” is an issue.

== B. Workers in Federally Regulated Industries ==

While working in BC, workers in federally regulated industries are directly subject to the workers’ compensation system.

== C. Federal Government Employees ==

Federal government employees are governed by the ''Government Employees Compensation Act'', RSC 1985, c G-5 which provides that injured federal government workers in a given province are to have their claims addressed by the provincial administrative body in that province. They are then entitled to be compensated at a rate determined under the provincial workers’ compensation scheme of the province in which they are employed but paid out of a federal fund. See RSCM II, #8.10.

== D. Workers Who Suffer an Injury While Working Outside BC ==

Workers who suffer an injury while working outside BC may be covered if

* they work in a compensable industry;
* BC is their usual place of employment;
* the extra-provincial work lasts less than six months;
* the work is a continuation of their BC employment; and
* they are working for a BC employer, or an employer located outside of BC where the Board has entered into an interjurisdictional agreement (WCA s. 335 [Former Act, s. 8.1]).

There are special requirements for trucking and transport businesses. In addition to WorkSafeBC coverage, employers must check the registration requirements with the Workers’ Compensation Authority in the jurisdiction the worker will be working or travelling through. See RSCM II, #112.00–112.40

== E. Workers Under the Age of Majority ==

Section 121 of the WCA [Former Act, s. 12] states that a worker under the age of 19 is ''sui juris'' for the purposes of the compensation provisions, which means that workers who are minors are under no legal disability and are considered, for purposes of the ''Act'', capable of managing their own affairs as if they were adults.

== F. Self-Employed Persons ==

If a person is a self-employed proprietor or a partner in a partnership who operates an independent business, then they are not automatically covered under the WCA. In general, they are entitled to seek coverage by purchasing optional workplace disability insurance, also known as Personal Optional Protection. Personal Optional Protection will pay health care, wage-loss, and rehabilitation benefits if the person is injured at work. See Assessment Manual Policy Item 1-4-3.

When a self-employed person with Personal Optional Protection is injured, their claim is processed as if they were a “worker” under the ''Act'' (s. 215 [Former Act s. 33.6]), and their wage rate is set according to their level of Personal Optional Protection coverage (See RSCM II, #67.20).

A labour contractor who does not have Personal Optional Protection and does not operate an independent business may be covered as a worker by the prime contractor. This is regardless of whether they are eligible for WorkSafeBC coverage or have declined to purchase WorkSafeBC’s optional coverage.

Below are examples of situations where a contractor would likely be a worker:

* the contractor supplies only labour;
* the contractor supplies labour and minor materials such as nails, drywall tape, or putty; or
* the contractor supplies labour and a piece of major equipment but is not registered with WorkSafeBC.

The key issues in the acceptance of claims from self-employed persons tend to be the exact nature of their employment, their coverage, and the appropriate wage rate. Practice Directive #C9-1 “Coverage and Compensation for Self-Employed Persons” sets out a helpful chart on the different types of self-employment and their coverage under the ''Act''.

== G. Employers ==

Employers are also covered by and have duties under the WCA, including contributing to the Accident Fund based on compulsory assessments. The Board sets an assessment rate for each employer based on a complex system of classification relating to the type of business and previous accident rates. Employers should be referred to the Employers’ Advisors Office for specialized assistance, without charge, in these matters (see Appendix on Referrals).

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