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Difference between revisions of "Small Claims Appeal (20:App L)"
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Small Claims Appeal (20:App L) (view source)
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{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 6, 2021}} | ||
{{LSLAP Manual TOC|expanded = smallclaims}} | {{LSLAP Manual TOC|expanded = smallclaims}} | ||
'''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. | '''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. | 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. | ||
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==== 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 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 ( | ==== 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. | *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." | *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." | ||
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*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''. | *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 | *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. ==== | ==== 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. ==== | ||
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*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." | *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 | ==== 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. | *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. | ||
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==== Step 12: Within 45 days of filing the Notice of Appeal, the Appellant must: ==== | ==== 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 | #File at the Supreme Court Registry the original copy of the transcript; | ||
#Serve a copy of the transcript and Statement of Argument on the Respondent. | #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. | *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. | ||
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*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. So 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. | *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. So 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 | *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. | *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. | *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. | ||
