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Difference between revisions of "Responding to a Small Claim (20:VI)"
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Responding to a Small Claim (20:VI) (view source)
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Where, by express or implied agreement, a claimant knew of and understood the risk he was 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. | Where, by express or implied agreement, a claimant knew of and understood the risk he was 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 or Immorality ==== | |||
Where a claimant stands to profit from criminal behaviour or compensation would amount to an avoidance of a criminal sanction, the claimant cannot recover damages134. This is narrowly construed and a claimant should read Hall 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 liable135. 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 (e.g., 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 result136. | |||
==== g) Defence of Third Parties ==== | |||
The same general rules apply as for self-defence provided that the use of force is reasonable137. | |||
=== 2. Statutory Defences === | |||
Certain statutes such as the ''Business Practices and Consumer Protection Act'', SBC 2004, c 2 provide a party with a cause of action that would not otherwise exist. A defendant should carefully read the statutes that the claimant is relying upon to see if the statute creates or prescribes certain defences. | |||
Where the claim is for remuneration in relation to real estate or property management services, the claimant must have either been licensed when the services were rendered or have been exempt from the requirement to be licensed138. If the claimant was required to be licensed but was not licensed, the claimant cannot legally charge a fee. | |||
The first step in replying to a claim by an entity such as a real estate management company is to establish whether the claimant was licensed with the Real Estate Board. | |||
== D. Filing a Reply == | |||
The Reply must be filed in the same registry where the Notice of Claim was filed139. There is a filing fee except where the defendant admits and agrees to pay the entire claim or obtains a fee waiver. | |||
