Small Claims Trial and Pre-Trial Conferences (20:XII)
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 31, 2024. |
A. Trial Conference
A trial conference only applies to claims at the Vancouver (Robson Square) registry. Parties should see Section XI: Settlement Conferences for information regarding the purpose of, preparation for, and conduct of a trial conference. A trial conference is similar to a settlement conference with a few notable exceptions, such as:
- the focus will be on trial preparation rather than on settlement.
- a party does not have to attend if a lawyer, articling student, or other representative attends on that party’s behalf (SCR, Rule 7.5(12));
- a Trial Statement (Form 33) must be filed at least 14 days before the trial conference and served on all other parties at least 7 days before the trial conference (SCR, Rules 7.5(9) and (10)). The trial statement form must include 4 sections: a statement of facts, amount claimed and calculation of the amount, a witness list, and the documents intended to be relied on at trial;
- a certificate of readiness is not required as it will have been provided prior to Rule 7.4 mediation;
- the judge may require the parties to jointly retain an expert (SCR, Rule 7.5(14)(e)(ii)); and
- the judge may give a non-binding opinion regarding the probable outcome of the trial (SCR, Rule 7.5(14)(j)).
There may be consequences for failing to file and serve the Trial Statement on time (see SCR, Rule 20(6); Yewchuk v Cleland, 2002 BCPC 200 (CanLII); Irving v Irving, 1982 CanLII 475 (BCCA); and Busse v Robinson Morelli Chertkow, [1999] BCJ No. 1101 (BCCA)). The Registrar must serve a Notice of Trial Conference (Form 32) at least 30 days prior to the date set for the conference. A judge may make any order for the just, speedy, and inexpensive resolution of the claim including those enumerated in Rule 7.5(14).
B. Pre-Trial Conference
At most registries, a pre-trial conference will be scheduled for claims with trials that are scheduled to be longer than one half-day. In many ways, this is similar to a settlement conference. There are basically no rules for pre-trial conferences. The general purpose is to ensure that the parties are prepared for trial, that all orders have been complied with, that all disclosure has been made, and that all witnesses will attend the trial. The judge will try to narrow the number of witnesses to reduce court time. In practice, it is a good idea to review the witnesses on your list and be prepared to address whether the evidence that each witness will give is redundant or conflicts with any rule of evidence. One of the more common issues that arises is hearsay. In addition, the judge will review the admissibility of documentary evidence, particularly that of written evidence. The judge will also ensure that the matter falls within the jurisdictional limits of the Small Claims Court and that the claim is not beyond its limitation period. Finally, even at this late date, the judge will encourage the claimants and defendants to settle the matter. The parties may receive an order allowing another 30 days after the pre-trial conference to serve a formal settlement offer to the opposing party. The offer to settle must be made according to Rule 10.1 and penalties may apply to parties who refuse the formal offer to settle. For example, if the court after trial grants the claimant a sum that is equal to or less than the defendant’s formal settlement offer, the claimant can be ordered to pay the defendant a penalty of up to 20 percent of the settlement offer.
It is not uncommon for judges at a pre-trial conference to decide the case based on the law without hearing any evidence. Some consider this to be an improper use of pre-trial conferences. However, as stated above, there are no rules governing pre-trial conferences so you should be aware of this going into a pre-trial conference.
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