Being Sued in Small Claims Court (Script 167)

From Clicklaw Wikibooks

This script details being sued in small claims court.

Do not ignore a notice of claim

If you receive a notice of claim from small claims court naming you as a defendant, it means that someone is suing you. The person or company suing you is called the claimant.

A notice of claim may be handed to you personally by the claimant or by another adult, or it can be sent to you by registered mail. If you’re hard to find, the court may order that you be notified in some other way, such as an ad in the newspaper or a notice posted on your front door.

Once you receive the notice, don’t ignore it. You must respond to it—within 14 days of receiving the notice of claim if you live in BC, or within 30 days if you live outside of BC. If you don’t, the claimant may win the lawsuit automatically. This is called a default judgment, explained below.

How do you reply to a notice of claim?

There are several ways to respond to a notice of claim. Here are the main ones:

  • admit you owe the amount claimed in the notice
  • admit you owe the amount claimed in the notice, but say that you can’t pay it
  • deny you owe the amount claimed but admit you owe a different amount
  • deny you owe anything

You may want to get legal advice before you proceed.

If you admit you owe the amount claimed

You can contact the claimant directly and offer to pay the claim. You must also pay the claimant’s expenses, such as the fees to file the claim and deliver the notice to you. You should get a receipt and have the claimant sign a form called a notice of withdrawal, which you can get from the small claims website or from the small claims court registry. You should then take this form to the registry to end the lawsuit.

Or, you and the claimant might reach some other agreement. If so, you may both sign a consent order and file it with the small claims court registry, or the claimant may file a payment order with the registry. If you follow the instructions in the consent order or payment order, the lawsuit will end.

If you admit you owe the amount, but can’t pay it

In this case, you should fill out the reply form attached to the notice of claim. If you didn’t get a blank reply form with the notice of claim, you can get it online. Or you can get it from any small claims court registry. On the reply, list the amounts you can pay and when you will pay.

Then, file your reply with the small claims court registry shown on the notice of claim. The small claims website lists court registry addresses. The registry will send a copy to the claimant, who will decide whether to accept your proposed payment plan.

If the claimant accepts your reply, you will receive a consent order to sign. It will end the lawsuit. If the claimant doesn’t accept, you can ask for a payment hearing, or the claimant may summon you to a payment hearing where the court will set a payment schedule. If you get a summons, you must go to the hearing.

If you deny you owe the amount claimed, or anything

If you admit the claim but disagree with part of it, fill out a reply and explain on it what parts you disagree with and what parts you agree with. File it with the small claims court registry. You must pay a filing fee for the reply.

If you deny the whole claim, complete a reply, saying why. You do not need to describe everything about your case, as you’ll get a chance to present your case later. Just list the reasons why you deny the claim. Evidence is not submitted at this stage, and the reply should be brief, factual, and specific.

If you dispute the claim and lose

If the case goes to trial and you lose, you will have to pay the amount of the judgment, plus the claimant’s fees and costs for getting the court documents to you. The judge can also order you to pay an additional 10% of the amount claimed if you file a reply and go to trial when you had no reasonable chance of winning. Also, if you refused to settle the claim (for an amount the claimant offered) and the trial judgment is more than or equal to the claimant’s offer, you may have to pay a penalty of up to 20% of the offer.

How long do you have to file a reply?

If you live in BC, you have 14 days after you receive the notice of claim. If you live outside of BC, you have 30 days after you receive the notice.

What if you ignore a claim or don’t file a reply in time?

The claimant can get a default order against you without your having a chance to dispute their claim. The court will decide the case only on the facts and evidence from the claimant. You can’t defend yourself or explain your side. And you may have to pay the claimant everything they ask for.

Other options

  • If you have your own claim against the claimant, you can file a counterclaim (part of the reply form) and the judge would later decide who was at fault.
  • Or, you may admit that you owe money, but believe the claimant also owes you money for some other reason. In this case, you can file a counterclaim claiming a set-off. A set-off involves using the money the claimant owes you to reduce the amount that you owe the claimant.
  • Or, you may think another person should pay all or part of the claim against you. If so, you can file a third-party notice (available on the small claims website) to bring that other person into the lawsuit.

All these options require you to pay another filing fee.

If the lawsuit proceeds

After you file your reply (and maybe counterclaim or third-party notice), the registry will send a copy of it to the claimant, and a third-party notice to any third parties you added.

For most claims, the registry will hold a settlement conference. The registry will tell you of the date and time for this meeting. The claimant, a judge, and you will attend. The goal of the settlement conference is to settle the case before going to trial. If the claim cannot be settled, it will go to trial.

You can try to resolve the claim any time before trial. If the claim is over $10,000 and you want the claimant to attend a mediation meeting with you (where a neutral mediator will try to resolve the dispute), you can file a notice to mediate. You may also receive a notice to attend a mediation session. Script 165 has more on mediation.

You must attend the settlement conference or mediation. Otherwise, a payment order may be made against you for the amount claimed. If you cannot attend, you must notify the scheduler immediately and seek an adjournment or postponement of the scheduled date.

The most important thing is to file a reply on time

If you get a notice of claim, you must file a reply within 14 days (if you live in BC).

More information

[updated August 2017]

The above was last reviewed for accuracy by Anna Kurt and edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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