Responding to a Small Claim (20:VI): Difference between revisions
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The registry will serve the claimant with the third party notice within 21 days of its being filed124. | The registry will serve the claimant with the third party notice within 21 days of its being filed124. | ||
==== b) Replying to a Third Party Notice ==== | |||
Once served, a third party must follow the same rules as replying to a Notice of Claim125.The third party should review this section of the guide in its entirety. | |||
== B. Time Limits == | |||
Unless a defendant pays the amount of the claim directly to the claimant and asks the claimant to withdraw the claim126, 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 Claim127; | |||
*the claimant served with a counterclaim128; or | |||
*a third party served with a third party notice129. | |||
If the defendant was served inside British Columbia, a Reply must be filed within '''14 days after service'''130. If the defendant was served outside British Columbia, a Reply must be filed within '''30 days after service'''131.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. | |||
== C. 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''132”.Each party is liable to the degree that they are at fault; where degrees of fault cannot be determined, liability is apportioned equally133. | |||
==== b) Consent ==== | |||
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. | |||
