Starting a Small Claim (20:V): Difference between revisions
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→D. Drafting the Notice of Claim
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== D. Drafting the Notice of Claim == | == D. Drafting the Notice of Claim == | ||
The | 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 [[Small_Claims_Registries_(20:App_A) | Appendix A]]) and an electronic copy is [http://bit.ly/UO7v9l available online]. Where possible, a claimant should type the Notice of Claim form. | ||
A | A sample Notice of Claim is attached (see [[Sample_Notice_of_Claim_for_Small_Claims_(20:App_C) | Appendix C]]) and may be a helpful guideline when drafting a Notice of Claim. | ||
=== 1. “From” === | === 1. “From” === | ||
This | This section must contain the claimant’s full legal name, address, and telephone number. The claimant has an on-going 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 informationmay result in the claimant’s claim being dismissed and/or the claimant being liable for costs or penalties. | ||
=== 2. “To” === | === 2. “To” === | ||
The claimant must list the full legal name, address for service, and, if available, the telephone number for each defendant. | 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 [https://justice.gov.bc.ca/FilingAssistant/ filing assistant] 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. | 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 (see [[Limitation_Periods_(20:App_F) | Appendix F]]) has already expired, the claimant may not be able to correct the error. | ||
=== 3. “What Happened?” === | === 3. “What Happened?” === | ||
In this section, the claimant must list the facts that support the claimant’s cause(s) of action and | 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 evidence – state what you will prove, not how you will prove it | ||
#Don’t plead law – unless you have a statutory cause of action | #Don’t plead law – unless you have a statutory cause of action | ||
#Use paragraphs – | #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 | #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 | 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 | 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 pleadings should describe: | ||
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*b) the dates, places, and details of amounts, services, or practices involved. | *b) 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 | 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 (Rule 8). | ||
When | 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 enforcement of a judgment and any subsequent actions arising out of the same cause. Liability 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. | 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 | Where liability is several, the claimant can sue any or all of the defendants however each defendant is obligated to repay only his own portion of the debt. | ||
Where liability is joint and several, the claimant may sue any or all of the defendants and may recover | 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?” === | === 4. “Where?” === | ||
The | 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. (See ''Dreambank, supra''.) | ||
=== 5. “When?” === | === 5. “When?” === | ||
