Causes of Action (20:App G)

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 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; 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. Termination. 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. 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.

Defences:

1. 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.
2. Void contract: A contract can be void and therefore unenforceable for several reasons, including lack of mental capacity, uncertainty of terms, illegality.
3. 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.
4. Misrepresentation: If the other party made a statement to you before the contract came into existence that you relied on in entering the contract and that turned out to be false, you may be able to have the contract set aside.
5. 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.
6. 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 complicated area of contract law, and legal advice should be sought.

Breach of Employment Contract (implied terms)

The courts cannot enforce statutory rights such as those found in the Employment Standards Act, as special adjudicative bodies have been created to rule on these types of claims and have 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 termination of an employee. The fact that no written employment contract was signed does not disqualify an employee or former employee from claiming for breach of these terms. See 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 Chapter 9 – Employment Law for more details.

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 him/her 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 his/her 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 him/her, even if (s)he 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 his or her 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 his/her hair.

Defences:

1. 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 he/she did not act with intent, the claim for battery will unlikely be successful. For example, if the physical contact was involuntary or an accident
2. Self-defence: The defendant can defeat a battery claim if he/she can show that the battery was an act of self-defence. There are three basic elements to self-defence which the defendant must prove:
   1. You honestly and reasonably believed that you were being or about to be subject to battery;
   2. There was no reasonable alternative to the use of force; and
   3. 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.

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 (s)he is 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 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 (e.g. 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)
• Most disputes between strata lot owners and strata corporations, except for recovery of maintenance fees against a strata lot owner (Strata Plan LMS2064 v Biamonte, [1999] BCJ No 1267).

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.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 16, 2020.

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