Starting a Small Claim (20:V): Difference between revisions
| Line 370: | Line 370: | ||
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]]). | 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. | 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?” === | === 3. “What Happened?” === | ||
Revision as of 21:41, 22 November 2022
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 24, 2022. |
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: 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: 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 (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
|
Small Business B.C.
|
BC Registry Services
|
The client may also write to:
| 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:
|
To search for a federally regulated company, refer to:
|
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); Goodhead v Law Society (British Columbia), [1997] 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. 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 (Dixon v Deacon Morgan McEwen Easson, [1990] 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 (Amezcua v Taylor, 2010 BCCA 128; 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; 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 Section XVII: Enforcement of a Judgment.
A claimant must decide whether or not 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
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 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 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 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 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 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
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. 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. 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:
- the relationship of the parties (e.g., buyer and seller); and
- 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 (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); 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 Appendix H: Small Claims Court Fees).
Please note that fees for the CRT are different (see 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); 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 (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 $25,000. 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 Appendix H: Small Claims Court Fees.
2. Where to File (Rule 1(2))
A claimant must file the notice of claim (SCR, Rule 1(2)) at the Small Claims registry (see Appendix A: Small Claims Registries) nearest to where:
- the defendant lives or carries on a business (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 DreamBank; Rudder v Microsoft Corp., [1999] 47 CCLT (2d) 168 (ON SC); 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 (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.
| Defendant | Permitted Methods of Service |
|---|---|
| Individual Over 19 Years Old |
|
| Individual Under 19 Years Old |
|
| Individual outside BC |
|
| BC Corporation |
|
| Extraprovincial Corporation | See SCR, Rule 2(4) |
| Unincorporated Company (Proprietorship) |
|
| Unincorporated Company (Partnership) |
|
| Company outside BC | See SCR, Rule 18(6.1) |
| Strata Corporation |
|
| Society |
|
| Unincorporated Association |
|
| Incorporated Cooperative Association, Housing Cooperative, Community Service Cooperative |
|
| Trade Union |
|
| Municipality |
|
| ICBC |
|
| Estate |
|
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 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.
| © Copyright 2024, The Greater Vancouver Law Students' Legal Advice Society. |