Going to Trial in Small Claims Court

This script discusses preparing for and attending your trial in Small Claims Court. Small Claims Court deals with claims of up to $25,000. Most trials in the Small Claims Court follow the same set of rules except that in Vancouver, if the claim is for financial debt, the trial will be a "summary trial" and also in Vancouver and Richmond, if the claim is for less than $5,000 and does not involve personal injuries, the trial will be a ‘simplified trial’. The procedures for each of these types of trials will be discussed near the end of this script.

Before the trial

There are three procedures that you may need to deal with before the trial. They are mediation, settlement conferences, and trial conferences. Sometimes these processes are mandatory and sometimes they are optional. This script will describe each process in turn.

Mediation

Mediation is a process that involves having a mediator (who is a neutral unbiased person) listen to both sides and attempt to persuade the parties to resolve the dispute. The mediator does not have the power to make a decision like a judge.

Mediation is mandatory in some cases. In other cases, one of the parties can decide that a mediation should be conducted.

In Vancouver, most claims more than $5,000 and all personal injury cases have to be mediated. In all other court locations, mediation is available for claims over $10,000 but it is optional. However if one of the parties chooses to file a Notice to Mediate, the other party must attend the mediation.

In Surrey, North Vancouver, Nanaimo and Victoria, some claims for less than $10,000 are automatically referred to mediation.

You don’t have to pay for the mediator if the mediation is held under the Court Mediation Program for claims up to $10,000. Otherwise, the expense of the mediator is shared between the parties.

Much more information about mediations in Small Claims Court is available on the Small Claims Court website.

Before a trial, most cases have a “settlement conference”

The next process you should know about is the settlement conference. Unless your case is in Vancouver, both the parties to the claim must attend a settlement conference prior to trial. There may be an exception if your claim is related to a motor vehicle accident. A judge also attends the settlement conference, but this judge isn’t usually the same judge who presides over the trial if the case goes that far. The purpose of the settlement conference is to try to resolve or “settle” some or all of the issues between you, and if settlement isn’t possible, to help you prepare your case for trial.

If your claim is for personal injuries, within 6 months of filing the claim and before the settlement conference is scheduled, you must file and deliver to the defendant a certificate of readiness attaching all medical reports and records of expenses you intend to use at the trial to prove your side of the case.

What happens at the settlement conference?

You must bring all the documents and reports you plan to use at trial to prove your side of the case. If you’re having trouble getting copies of the other side’s documents, the judge can order that copies of these documents be exchanged. The judge will discuss the claim with you and see if the claim can be settled. If it can’t, the judge can make orders concerning the collection and presentation of evidence needed for the trial. The judge can also dismiss the claim if he or she thinks it’s groundless.

Trial conference

The third pre-trial process only applies if your case is commenced in Vancouver. This is the trial conference, where a judge will determine the amount of time needed for trial, make orders concerning evidence and other matters. You will have to complete a Trial Statement summarizing your case and file it with the Court at least 14 days before the conference.

Written offer of settlement One final item you should consider before going to trial is a written offer of settlement. Within 30 days after a mediation, settlement conference, or trial conference, whichever occurs first, but before the trial, you may “file” a written offer of settlement with (i.e., submit it to) the Small Claims Court, then present it to the other side. The other side will have 28 days to accept it. If they don’t, and if the outcome at trial is much the same as your offer, the judge can order them to pay an additional penalty of up to 20% of your offer.

What if you have to go to trial?

You’ll likely be the main witness for your case. But you’ll also want to think about what other witnesses and what expert witnesses and/or reports you’ll need to support your case.

Ordinary witnesses can testify about facts that they personally know about For example, they can testify about what they saw. But they can’t talk about what they heard one person say to another – that’s considered “hearsay” evidence and isn’t usually allowed to prove the truth of those statements.

What about expert witnesses and/or reports?

Expert witnesses are the only witnesses who can give evidence about an opinion. If you intend to have an expert testify at the trial – such as a doctor for a personal injury claim – you must give the other side a summary of the expert’s evidence at least 30 days before the expert testifies. If you just want to use a letter or written report from the expert, you have to give the other side a copy of that report, together with a statement of the expert’s qualifications, at least 30 days before the trial. Then if the other side wants to “cross-examine” or ask questions of that expert at trial, they must let you know at least 14 days before the trial, and your expert must attend the trial in person.

Repair estimates and estimates of the value of property aren’t considered expert evidence. But copies must still be given to the other side at least 14 days before the trial.

You must make the arrangements for your witnesses to attend the trial

If a witness refuses to come voluntarily or you’re not sure they’ll attend, you can pick up a form called a Summons to Witness from the Small Claims Court registry. (You can also download this form from the Small Claims Court website.) The form tells you how to deliver the summons to the witness, who must receive it at least seven days before the trial.

Expect to pay your witness’s fees and expenses

You have to offer to pay a witness’s reasonable travel expenses to attend the trial. You should also expect to pay your expert witness’s fees and expenses – you’ll want to determine that in advance before deciding whether or not to require the expert’s attendance at trial. You may be able to avoid the expense of having your expert personally testify at the trial by providing the expert’s opinion in writing to the other side well before trial, but if the other side wants to question your expert, you’ll have to produce your expert in person.

Once the trial begins, how do you present your case to the judge? In Small Claims Court, you don’t have to follow the strict rules of evidence followed in Supreme Court, and the judge will decide what rules or procedures to follow. However, everyone that testifies will have to swear an oath or affirm to tell the truth. You will also be expected to have all of the documents you intend to use to prove your case and all of your witnesses present at the trial. Remember to bring the original, plus at least two copies of any documents you use.

How do you proceed if you’re the claimant?

As the claimant, you will speak first. You might want to start with an “opening statement” and tell the judge briefly what your case is about. Then you can give your evidence. You’ll tell your story and produce any documents that help to prove your case. After, the defendant has a chance to cross-examine or question you on what you’ve said.

You’ll then call your other witnesses and question them, so they can give their evidence to support your claim. You should ask open-ended questions like “What colour was the traffic light?” not leading questions like “Was the light red?” The defendant is then allowed to cross-examine your witnesses.

How do you proceed if you’re the defendant?

You should make written notes while the claimant is testifying. When the claimant has finished, you’ll get to cross-examine them. Your objective will be to get the claimant to admit things that help your case, or to weaken the claimant’s testimony by showing that the claimant has a poor memory, is mistaken, or is lying. Don’t expect the claimant to admit that they are exaggerating or lying – what matters is that you have put your version to them fully and fairly.

After the claimant and the claimant’s witnesses have finished, you get to tell your side of the story and call your own witnesses to testify. The claimant may then cross-examine you and your witnesses. The judge often asks questions too.

What happens after the evidence is presented?

When all the evidence is finished, the claimant and defendant are usually allowed a final opportunity to tell the judge why he or she should decide the case in their favour.

Finally, the judge announces the decision or judgment

In most cases, after listening to both parties and the witnesses and reviewing the documents, the judge will make a decision and tell you what it is. Sometimes however, the judge will postpone telling you his or her decision to a later date.

If the judge decides the claimant wins, then the defendant will have to pay the full amount of their claim. If the judge decides that the defendant wins, then the defendant will not have to pay the claim amount. Further, the losing party usually has to pay the winning party costs for things such as filing fees, delivering documents and witness costs. In circumstances where the judge thinks that a party started or defended a claim without a reasonable prospect of success, they can order that the losing party pay a penalty amounting to 10% of the claim value. The amount the judge orders the losing party to pay may be due immediately, or the judge can make a payment order setting out a payment schedule.

There is a simplified trial process for Vancouver and Richmond In Richmond and Vancouver, if the claim is not for personal injury or a debt claim by a financial institution and is for less than $5,000, a simplified trial will be scheduled that will last one hour. Before the trial, each party will have to prepare and file a Trial Statement summarizing your case. The Trial Statement must be filed with the Court Registry at least 14 days before the simplified trial and you must give the other party a copy at least 7 days before the simplified trial. At a simplified trial, the parties and witnesses will give oral evidence and documents can be presented. The trial may be conducted by either a judge or an adjudicator appointed by the Court.

Vancouver Summary Trial

In Vancouver, a claim for a financial debt will be heard as a summary trial. If you have documents to support your claim, you must file them with the Court Registry at least 14 days before the summary trial and give a copy to the other party at least 7 days before. At a summary trial, the parties can give evidence and call witnesses but the trial is expected to last only 30 minutes.

Where can you get more information?

• Talk to the Small Claims Court staff.
• Read one of the Small Claims Court guides available at the registry and on the Small Claims Court website at www.ag.gov.bc.ca/courts/small_claims/.

[updated September 2013]

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