Difference between revisions of "Going to Trial in Small Claims Court"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group|date= October 2017}} {{Dial-A-Law TOC|expanded = courts}}
At a trial, the parties present evidence and a judge decides the case. If you’re '''going to trial in Small Claims Court''', learn how to prepare and what to expect.


{{Dial-A-Law TOC|expanded = smallclaims}}
==Before the trial==
This script explains how to prepare for a trial in small claims court.
 
===For claims over $10,000, either party can request a mediation===
In a Small Claims Court lawsuit, if the claim is over $10,000, either party can compel the other to attend a '''mediation session''' to attempt to settle the case.
 
The process is started with a document called a '''notice to mediate''' (available online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims]). Either party can fill out the notice. They file it in the registry where the notice of claim was filed, and deliver it to the other parties in the case.


==Before you sue—try to settle the case==
Together, the parties choose a '''mediator'''. (If they can’t agree on one, a mediator can be appointed.) The mediator organizes a '''mediation session''', where they help the parties find a solution that satisfies everyone. Unlike a judge, a mediator does not have the power to decide the case. The case settles only if all parties to the dispute agree to a settlement.
This script explains how to sue in small claims court. But before you sue, try to settle the case without going to court. That can save you a lot of time and money. The [http://www.smallclaimsbc.ca/ small claims website] starts with this suggestion and explains [http://www.smallclaimsbc.ca/settlement-options/overview settlement options]. They include using demand letters, [http://www.smallclaimsbc.ca/settlement-options/ODR online dispute resolution], [http://www.smallclaimsbc.ca/settlement-options/mediation mediation], arbitration, collection agencies, negotiation, and payment terms.


==New process started June 1, 2017==
The parties share the cost of the mediation. If an agreement to settle the case is reached, the agreement can be filed with the court.
As of June 1, 2017, the government made [http://provincialcourt.bc.ca/enews/enews-20-03-2017 important changes to small claims court]. Now, where you sue depends on the amount you seek:


*Claims up to $5,000 go to the [https://civilresolutionbc.ca/how-the-crt-works/getting-started/small-claims-solution-explorer/ Civil Resolution Tribunal]
===Most cases have a settlement conference before trial===
*Claims from $5,001 to $35,000 go to small claims court—'''this script covers this topic'''
For most cases in Small Claims Court, the court will schedule a '''settlement conference''', where the parties meet with a judge to explore settling the case before a trial.  
*Claims over $35,000 go to [http://www.courts.gov.bc.ca/supreme_court/ BC supreme court]. More information on these claims is also available on the [http://www.supremecourtbc.ca/civil site for people who represent themselves] in supreme court.


==Before the trial==
The registry will tell the parties the date and time for the conference. All parties must attend. The parties must bring any documents they plan to use at trial to prove their case.
You may need to deal with three procedures before trial: '''mediation''', '''settlement conference''', and '''trial conference'''. Sometimes they are mandatory, and other times, optional.
 
The judge who attends the settlement conference isn’t necessarily the same judge who will hold the trial, if the case goes that far. The purpose of the conference is to encourage settlement of the case, and if settlement isn’t possible, to help the parties prepare for trial. The judge will not make a final decision or settle the case for the parties. The judge guides the discussion and gives their opinion of the case.
 
If the parties agree to settle the case, the judge can put the agreement into an '''order'''. That ends the lawsuit.  


===1. Mediation===
===Either party can make a written offer to settle===  
[http://www.smallclaimsbc.ca/settlement-options/mediation Mediation] is a process that involves a mediator (a neutral third-party) listening to all parties and trying to help them resolve the dispute. Unlike a judge, a mediator cannot decide the case,
Even if the parties don’t settle the issues at the settlement conference, it doesn't mean they have to go to trial. Within 30 days after the settlement conference, either party can make a written '''offer to settle''' to the other party.  


Mediation is usually optional. But if one party asks for mediation (by filing a notice to mediate) the other party must use it. The parties share the cost of mediation. It’s often faster and cheaper than suing. It’s available only for claims over $10,000.
To do so, use Form 18 (available online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims]). Fill out the form with the details of your settlement offer. File the offer with the court and serve it on the other party, either personally or by registered mail.  


Small claims [http://www.bclaws.ca/civix/document/id/complete/statreg/261_93_02#rule7.3 rule 7.3] deals with mediation. Script [[What is Small Claims Court? (Script 165)|165]] and this provincial government [http://www.ag.gov.bc.ca/courts/small_claims/info/guides/mediation_between.htm website] both have more on mediation.
The other party has 28 days to accept the offer. If they do not accept it, and the outcome at trial is much the same as the offer, the judge can impose a penalty on the other party of up to 20% of the amount you offered.  


Mediation is an option in all locations, but it’s not always available. For example, it’s not available for cases that can be dealt with under [http://www.bclaws.ca/civix/document/id/complete/statreg/261_93_02#rule9.2 rule 9.2] (a summary trial for financial debt in Vancouver).
===Prepare your evidence, and line up any witnesses===
Small Claims Court cases are decided on a '''balance of probabilities'''. You must convince the judge that your version of the events is more likely than not and more likely than the other side’s version. You need '''evidence''' to do that — including physical evidence, such as invoices or contracts, or evidence given by '''witnesses'''.  


Mediation is mandatory only if one party files a notice to mediate or the court orders the parties to use it.
====Arrange for your witnesses to attend the trial====
You will want to think about what witnesses and other evidence you will need to support your case. At the trial, your witnesses can tell the court ('''testify''') about what they saw and heard.  


===2. Settlement conference===
If a witness refuses to come to the trial or you’re not sure they’ll come, you can file a form called a '''summons to witness'''. This form is available online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims] and at any [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/courthouse-locations Small Claims Court registry]. The form tells you how to deliver the summons to the witness. The witness must receive the summons '''at least seven days''' before trial.
Before a trial, most cases have a settlement conference. Unless your case is in Vancouver, all parties to the claim must attend a settlement conference before 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 necessarily the same judge who will hold the trial, if the case goes that far. The purpose of the settlement conference is to resolve or settle some or all the case, and if settlement isn’t possible, to help you prepare for trial. The judge will not make a final decision or settle the case for you. They will guide the discussion, focusing on the important legal issues of the case. You can get a final order if you and the other party agree to settle the case.


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 plan to use at the trial to prove your case.
You can use a '''written estimate''' for the repair of damage or value of property, without having the person who gave you the estimate come to court. If you are going to use a written estimate, you must serve the other party with a copy of the estimate '''at least 14 days''' before the trial.


===What happens at the settlement conference?===
====Expert witnesses====
You must bring all the documents and reports you plan to use at trial to prove your case. If you are 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 cannot, the judge can make orders about collecting and presenting evidence needed for the trial. The judge can also dismiss the claim if it is baseless or vexatious (done only to harm or annoy the other side).
Expert witnesses can give evidence about an '''opinion'''. If you intend to have an expert testify at trial — such as a doctor for an injury claim — you must give the other party a '''summary''' of the expert’s evidence '''at least 30 days''' before the expert testifies.  


===3. Trial conference===
If you want to use only a letter or written '''report''' from an expert, you must 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 ask the expert questions at trial ('''cross-examine''' the expert), they must let you know at least 14 days before the trial. If they do, your expert must attend the trial in person.
A trial conference applies only to Vancouver cases. A judge will decide how much time a trial will take and make orders about 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.
 
====Witness fees and expenses====
You must offer to pay reasonable travel expenses for your witnesses to attend trial. You will also have to pay fees and expenses for any expert witness. You should figure out how much they will be before deciding whether you need the expert at trial. Some experts, especially professionals like doctors and engineers, can charge a lot.  


==Written offer of settlement==
{| class="wikitable"
You should consider making a written offer of settlement before trial. Within 30 days after a mediation, settlement conference, or trial conference (whichever occurs first, but before the trial) you can file a written offer of settlement with the court registry, then give it to the other side. The other side will have 28 days to accept your offer. If they do not accept it, and the outcome at trial is like your offer, the judge can order them to pay a penalty of up to 20% of what you offered.
|align="left"|'''Tip'''
Courts are open to the public. You can go in any day and just sit down and watch. Doing so before your trial can help with putting your own case forward. Try to watch several cases, as each one is different.
|}


==If you go to trial==
==What to expect at the trial==
Some trials in Vancouver and Richmond use different processes.


*'''Simplified trial in Vancouver and Richmond'''
===Some locations have streamlined trials for certain claims===
:In Vancouver and Richmond, claims between $5,001 and $10,000 go to a [http://www.smallclaimsbc.ca/trial/simplified-trial simplified, one-hour trial] before an experienced lawyer who is a justice of the peace (called an adjudicator). There is no pre-trial settlement conference. Claims under $5001 can also go to a simplified trial if the Civil Resolution Tribunal cannot hear the case. But simplified trials are not used for personal injury claims or financial debt claims.
Some registries in the province have streamlined trial procedures for smaller claims and certain financial claims.  


:Before the trial, each party must prepare and file a trial statement summarizing their 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 give oral (spoken) evidence and can present documents.
In Vancouver and Richmond, most claims under $10,000 go straight to a '''simplified trial'''. This is a one-hour streamlined trial before an experienced lawyer who is a '''justice of the peace'''. There is no settlement conference.


*'''Summary trial in Vancouver'''
Also in Vancouver, financial debt claims up to the small claims limit of $35,000 are decided using a '''summary trial''' procedure. This is a half-hour streamlined trial before a judge. Financial debt claims are claims made by creditors to collect a debt from a loan or extension of credit.
:Vancouver uses a [http://www.smallclaimsbc.ca/trial/summary-trial summary trial] for all financial debt claims (money loans and credit-card debt) between $5,001 and $35,000. These trials are usually fast: less than 30 minutes. They use less formal rules of procedure and evidence. 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 supposed to last only 30 minutes or less.


==What you must do in court==
The BC government website at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/pilot gov.bc.ca/smallclaims] has details on these streamlined trial procedures.  
Often, you will be the main witness for your case in court, but not always. You will want to think about what other witnesses, expert witnesses, and reports you will need to support your case.


Small claims court cases are decided on a balance of probabilities. You must convince the judge that your version of the events is more likely than not and more likely than the other side’s version. You need evidence to do that—including physical evidence, such as invoices and contracts, or evidence given by a witness, called testimony. When a witness speaks in court they are testifying.
===When you arrive at court===
On your trial date, give yourself plenty of time to arrive early. In the courtroom, everyone stands when the judge enters or leaves the courtroom. You must stand whenever you are speaking to the judge or the judge is speaking to you. The judge is called "Your Honour".


==Ordinary witnesses==
Small Claims Court does not follow the strict rules of evidence used in Supreme Court. The judge will decide what rules and procedures to follow. A lot depends on the personal style of the judge and also on the judge's assessment of what procedure will allow the parties to present their cases easily and fairly.
Witnesses can testify about facts they know about. For example, they can testify about what they saw. But they cannot talk about what they heard one person say to another—this is hearsay evidence. It is not allowed to prove the truth of those statements, except in rare cases. Witnesses must tell only the facts that they saw and heard directly.


==Expert witnesses and expert reports==
{| class="wikitable"
Expert witnesses are the only people who can give evidence about an opinion. If you intend to have an expert testify at trial—such as a doctor for a personal injury claim—you must give the other party a summary of the expert’s evidence at least 30 days before the expert testifies. If you want to use only a letter or written report from an expert, you must 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 the expert (ask questions at trial to challenge the expert’s testimony), they must let you know at least 14 days before the trial, and your expert must attend the trial in person.
|align="left"|'''Tip'''
For any '''documents''' you plan to use to prove your case, bring the original and at least three copies of the document. The original may be kept by the court as an exhibit. The copies are for the judge, the other party, and yourself.
|}


Repair estimates and estimates of the value of property aren’t expert evidence. But you must still give copies to the other party at least 14 days before trial.
===The claimant goes first===
The party bringing the lawsuit, the '''claimant''', speaks first. They may start with an '''opening statement''', telling the judge briefly what their case is about.  


==You must arrange for your witnesses to attend the trial==
Next, the claimant presents their evidence. They may start by giving their own '''testimony'''. This is where they tell the judge their story of what happened, and provide any documents that support their case. As with any witness, the claimant must swear an oath or affirm to tell the truth.  
If a witness refuses to come to the trial or you’re not sure they’ll come, you can file a form called a summons to witness, available on the [http://www.smallclaimsbc.ca/ small claims website] and at the court registry. The form tells you how to deliver the summons to the witness, who must receive the summons at least 7 days before trial.


==You must pay the fees and expenses of your witnesses==
After, the defendant can ask the claimant questions ('''cross-examine''' them) on what they said. The goal of cross-examination is to show weaknesses in the witness’ story — that they have a poor memory, they’re mistaken, or they’re lying.  
You must offer to pay reasonable travel expenses for your witnesses to attend trial. You will also have to pay fees and expenses for your expert witness. You should figure out how much they will be before deciding whether you need the expert at trial. Some experts, especially professionals like doctors and engineers, can charge a lot. You may be able to cut expenses by giving the expert’s written opinion to the other party well before trial. But if the other party wants to question your expert, the expert will have to come to the trial.


==Presenting your case to the judge==
The claimant then calls any other witnesses to give evidence in support of their case. The witnesses can be asked open-ended questions like “What colour was the traffic light?” A party can’t ask their own witness '''leading questions'''. A leading question suggests the answer the questioner wants the witness to give. For example, “The light was red, wasn’t it?” is a leading question.  
Small claims court does not follow the strict rules of evidence used in supreme court. The judge will decide what rules and procedures to follow. This makes small claims court better for the public. But everyone who testifies will have to swear an oath or affirm to tell the truth. And you must also have all the documents you plan to use to prove your case and all your witnesses at the trial. Bring the original version of any documents, plus at least two copies.


==If you’re the claimant==
The defendant can then cross-examine the claimant’s witnesses. In cross-examination, leading questions '''are''' allowed.  
The claimant speaks first. You may start with an '''opening statement''', telling the judge briefly what your case is about. After, you can give your evidence to the court. Tell your story chronologically (in the order things happened) and provide any documents that help prove your case. After, the defendant can cross examine (question) you on what you said. Their goal is to expose inconsistencies or other weaknesses in your story. Be sure your testimony is honest and accurate.


You will then call your other witnesses and question them, allowing them to give their evidence to support your claim. You should ask open-ended questions like “What colour was the traffic light?” You can’t ask your own witnesses leading questions. A '''leading question''' suggests the answer you want the witness to give. For example, “the light was red, wasn’t it?” is a leading question. The defendant can then cross examine your witnesses.
All witnesses must speak only to what they have seen or heard directly. They cannot talk about what they heard one person say to another — this is called '''hearsay evidence'''. Hearsay is not allowed to prove the truth of statements, except in rare cases.


==If you’re the defendant==
===The defendant presents their case===
You should make written notes while the claimant testifies. When the claimant has finished, you can '''cross examine''' them. Your goal will be to get the claimant to admit things that help your case, or to weaken their testimony by showing that they have a poor memory, or they are mistaken, or lying. Don’t expect the claimant to admit that they are exaggerating or lying—but it’s important that you put your version to them fully and fairly. You can ask leading questions (explained in the preceding paragraph) when you cross examine the claimant and their witnesses.
Next, the defendant presents their evidence. They may start by giving their own '''testimony''', where they tell the judge their story of what happened, and provide any documents that support their case. The claimant can then ask the defendant questions ('''cross-examining''' them).


After the claimant and their witnesses have finished, you can 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 as well.   
The defendant then calls any other witnesses to give evidence in support of their case. The claimant may cross-examine the witnesses. The judge often asks questions as well.   


==After the evidence is presented==
{| class="wikitable"
When all the evidence has been presented, the claimant and defendant usually get a final chance to tell the judge why they should win. Be ready to summarize your strongest points to the court.
|align="left"|'''Tip'''
In cross-examining the other side’s witnesses, your aim is to weaken their testimony or get them to admit things that help your case. Don’t expect them to admit they are exaggerating or lying — but it’s important you put your version to them fully and fairly.
|}


==The judgment (decision)==
===The judge decides the case===
Usually, the judge decides the case after listening to both parties and the witnesses and reviewing the documents. Sometimes, the judge will postpone the decision until later.
When all the evidence has been presented, both parties get a final chance to tell the judge why they should decide for them.


If the judge decides the claimant has proven their case on a balance of probabilities, the defendant will have to pay the full amount of the claim. If the judge decides that the defendant’s evidence is more convincing, then the defendant will not have to pay the claim. The losing party must usually pay the winning party costs for things such as filing fees, delivering documents, and witness costs. If the judge thinks that a party started or defended a claim without a reasonable chance of succeeding, they can order the losing party to pay a penalty of 10% of the claim value. The judge can order the losing party to pay immediately, or over time.
Usually, the judge decides the case after listening to the parties and the evidence. Sometimes, the judge will postpone the decision until later.


==Can you appeal a small claims court judgment?==
If the judge decides the claimant has proven their case on a balance of probabilities, the defendant will have to pay the full amount of the claim. If the judge decides the defendant’s evidence is more convincing, then the defendant will not have to pay the claim.  
Yes, you can appeal a small claims court judgment to the BC supreme court, but the appeal must be started within 40 days after the small claims court order was made. If you are late filing the notice of appeal, you can apply to the supreme court to extend the time, but there’s no guarantee that you will get it.


The appeal is not a new trial and the supreme court judge will decide only if the small claims court judge made a mistake about the facts or the law.
The losing party must usually pay the winning party’s costs for things such as court filing fees, delivering documents, and witness costs. If the judge thinks that a party started or defended a claim without a reasonable chance of succeeding, they can order the losing party to pay a penalty of 10% of the claim value. The judge can order the losing party to pay immediately, or over time.


The small claims website explains [http://www.smallclaimsbc.ca/judgment/appealing-a-small-claims-decision how to appeal] and the process and cost involved.
===Either party can appeal=== 
Either party can appeal a Small Claims Court judgment. The appeal is brought to the BC Supreme Court, and must be started '''within 40 days''' after the Small Claims Court order was made. If you are late filing the notice of appeal, you can apply to the Supreme Court to extend the time, but you may not get it.


If you want to appeal a small claims court judgment, you should consult a lawyer right away.
The appeal is '''not''' a new trial. The Supreme Court judge will decide only if the Small Claims Court judge made a mistake about the facts or the law.


==More information==
The Small Claims BC Online Help Guide explains [http://www.smallclaimsbc.ca/judgment/appealing-a-small-claims-decision how to appeal] a Small Claims Court decision.  
*Check the [http://www.smallclaimsbc.ca/ small claims website] and the [http://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters provincial court website]. Also, the BC government has guides on [http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim making a claim], [http://www.ag.gov.bc.ca/courts/small_claims/info/guides/reply.htm replying to a claim], [http://www.ag.gov.bc.ca/courts/small_claims/info/guides/serving.htm serving documents], [http://www.ag.gov.bc.ca/courts/small_claims/info/guides/getting_ready.htm getting ready for court], and [http://www.ag.gov.bc.ca/courts/small_claims/info/guides/getting_results.htm getting results].


*Check the other Dial-A-Law scripts in this [http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Small-Claims-Court small claims court series].
==Get help==


===With your case===
You do not need a lawyer to go to Small Claims Court. But you'll probably better understand the process, as well as the strength of your case, if you get '''legal advice'''. If you have limited means, you might be able to get legal help from pro bono services, a student legal clinic, or an advocate. See our information on [[Free and Low-Cost Legal Help (No. 430)|free and low-cost legal help (no. 430)]].


===More information===
The '''BC government''' website has how-to guides on Small Claims Court, including making a claim, replying to a claim, serving documents, getting ready for court, and getting results.
:Web: [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides gov.bc.ca/smallclaims]


[updated August 2017]
The BC government’s '''Small Claims Court Filing Assistant''' walks you through the steps of completing court forms.
:Web: [http://justice.gov.bc.ca/FilingAssistant/ justice.gov.bc.ca/FilingAssistant]


'''The above was last reviewed for accuracy by Anna Kurt and edited by John Blois.'''
The '''BC Provincial Court''' website features information on Small Claims Court, as well as past court decisions.
:Web: [http://www.provincialcourt.bc.ca/ provincialcourt.bc.ca]


----
The '''Small Claims BC Online Help Guide''', from Justice Education Society, provides step-by-step information on each stage of a small claims case.
----
:Web: [http://www.smallclaimsbc.ca smallclaimsbc.ca]


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Revision as of 17:44, 31 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Anna Kurt, Ganapathi Law Group in October 2017.

At a trial, the parties present evidence and a judge decides the case. If you’re going to trial in Small Claims Court, learn how to prepare and what to expect.

Before the trial

For claims over $10,000, either party can request a mediation

In a Small Claims Court lawsuit, if the claim is over $10,000, either party can compel the other to attend a mediation session to attempt to settle the case.

The process is started with a document called a notice to mediate (available online at gov.bc.ca/smallclaims). Either party can fill out the notice. They file it in the registry where the notice of claim was filed, and deliver it to the other parties in the case.

Together, the parties choose a mediator. (If they can’t agree on one, a mediator can be appointed.) The mediator organizes a mediation session, where they help the parties find a solution that satisfies everyone. Unlike a judge, a mediator does not have the power to decide the case. The case settles only if all parties to the dispute agree to a settlement.

The parties share the cost of the mediation. If an agreement to settle the case is reached, the agreement can be filed with the court.

Most cases have a settlement conference before trial

For most cases in Small Claims Court, the court will schedule a settlement conference, where the parties meet with a judge to explore settling the case before a trial.

The registry will tell the parties the date and time for the conference. All parties must attend. The parties must bring any documents they plan to use at trial to prove their case.

The judge who attends the settlement conference isn’t necessarily the same judge who will hold the trial, if the case goes that far. The purpose of the conference is to encourage settlement of the case, and if settlement isn’t possible, to help the parties prepare for trial. The judge will not make a final decision or settle the case for the parties. The judge guides the discussion and gives their opinion of the case.

If the parties agree to settle the case, the judge can put the agreement into an order. That ends the lawsuit.

Either party can make a written offer to settle

Even if the parties don’t settle the issues at the settlement conference, it doesn't mean they have to go to trial. Within 30 days after the settlement conference, either party can make a written offer to settle to the other party.

To do so, use Form 18 (available online at gov.bc.ca/smallclaims). Fill out the form with the details of your settlement offer. File the offer with the court and serve it on the other party, either personally or by registered mail.

The other party has 28 days to accept the offer. If they do not accept it, and the outcome at trial is much the same as the offer, the judge can impose a penalty on the other party of up to 20% of the amount you offered.

Prepare your evidence, and line up any witnesses

Small Claims Court cases are decided on a balance of probabilities. You must convince the judge that your version of the events is more likely than not and more likely than the other side’s version. You need evidence to do that — including physical evidence, such as invoices or contracts, or evidence given by witnesses.

Arrange for your witnesses to attend the trial

You will want to think about what witnesses and other evidence you will need to support your case. At the trial, your witnesses can tell the court (testify) about what they saw and heard.

If a witness refuses to come to the trial or you’re not sure they’ll come, you can file a form called a summons to witness. This form is available online at gov.bc.ca/smallclaims and at any Small Claims Court registry. The form tells you how to deliver the summons to the witness. The witness must receive the summons at least seven days before trial.

You can use a written estimate for the repair of damage or value of property, without having the person who gave you the estimate come to court. If you are going to use a written estimate, you must serve the other party with a copy of the estimate at least 14 days before the trial.

Expert witnesses

Expert witnesses can give evidence about an opinion. If you intend to have an expert testify at trial — such as a doctor for an injury claim — you must give the other party a summary of the expert’s evidence at least 30 days before the expert testifies.

If you want to use only a letter or written report from an expert, you must 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 ask the expert questions at trial (cross-examine the expert), they must let you know at least 14 days before the trial. If they do, your expert must attend the trial in person.

Witness fees and expenses

You must offer to pay reasonable travel expenses for your witnesses to attend trial. You will also have to pay fees and expenses for any expert witness. You should figure out how much they will be before deciding whether you need the expert at trial. Some experts, especially professionals like doctors and engineers, can charge a lot.

Tip

Courts are open to the public. You can go in any day and just sit down and watch. Doing so before your trial can help with putting your own case forward. Try to watch several cases, as each one is different.

What to expect at the trial

Some locations have streamlined trials for certain claims

Some registries in the province have streamlined trial procedures for smaller claims and certain financial claims.

In Vancouver and Richmond, most claims under $10,000 go straight to a simplified trial. This is a one-hour streamlined trial before an experienced lawyer who is a justice of the peace. There is no settlement conference.

Also in Vancouver, financial debt claims up to the small claims limit of $35,000 are decided using a summary trial procedure. This is a half-hour streamlined trial before a judge. Financial debt claims are claims made by creditors to collect a debt from a loan or extension of credit.

The BC government website at gov.bc.ca/smallclaims has details on these streamlined trial procedures.

When you arrive at court

On your trial date, give yourself plenty of time to arrive early. In the courtroom, everyone stands when the judge enters or leaves the courtroom. You must stand whenever you are speaking to the judge or the judge is speaking to you. The judge is called "Your Honour".

Small Claims Court does not follow the strict rules of evidence used in Supreme Court. The judge will decide what rules and procedures to follow. A lot depends on the personal style of the judge and also on the judge's assessment of what procedure will allow the parties to present their cases easily and fairly.

Tip

For any documents you plan to use to prove your case, bring the original and at least three copies of the document. The original may be kept by the court as an exhibit. The copies are for the judge, the other party, and yourself.

The claimant goes first

The party bringing the lawsuit, the claimant, speaks first. They may start with an opening statement, telling the judge briefly what their case is about.

Next, the claimant presents their evidence. They may start by giving their own testimony. This is where they tell the judge their story of what happened, and provide any documents that support their case. As with any witness, the claimant must swear an oath or affirm to tell the truth.

After, the defendant can ask the claimant questions (cross-examine them) on what they said. The goal of cross-examination is to show weaknesses in the witness’ story — that they have a poor memory, they’re mistaken, or they’re lying.

The claimant then calls any other witnesses to give evidence in support of their case. The witnesses can be asked open-ended questions like “What colour was the traffic light?” A party can’t ask their own witness leading questions. A leading question suggests the answer the questioner wants the witness to give. For example, “The light was red, wasn’t it?” is a leading question.

The defendant can then cross-examine the claimant’s witnesses. In cross-examination, leading questions are allowed.

All witnesses must speak only to what they have seen or heard directly. They cannot talk about what they heard one person say to another — this is called hearsay evidence. Hearsay is not allowed to prove the truth of statements, except in rare cases.

The defendant presents their case

Next, the defendant presents their evidence. They may start by giving their own testimony, where they tell the judge their story of what happened, and provide any documents that support their case. The claimant can then ask the defendant questions (cross-examining them).

The defendant then calls any other witnesses to give evidence in support of their case. The claimant may cross-examine the witnesses. The judge often asks questions as well.

Tip

In cross-examining the other side’s witnesses, your aim is to weaken their testimony or get them to admit things that help your case. Don’t expect them to admit they are exaggerating or lying — but it’s important you put your version to them fully and fairly.

The judge decides the case

When all the evidence has been presented, both parties get a final chance to tell the judge why they should decide for them.

Usually, the judge decides the case after listening to the parties and the evidence. Sometimes, the judge will postpone the decision until later.

If the judge decides the claimant has proven their case on a balance of probabilities, the defendant will have to pay the full amount of the claim. If the judge decides the defendant’s evidence is more convincing, then the defendant will not have to pay the claim.

The losing party must usually pay the winning party’s costs for things such as court filing fees, delivering documents, and witness costs. If the judge thinks that a party started or defended a claim without a reasonable chance of succeeding, they can order the losing party to pay a penalty of 10% of the claim value. The judge can order the losing party to pay immediately, or over time.

Either party can appeal

Either party can appeal a Small Claims Court judgment. The appeal is brought to the BC Supreme Court, and must be started within 40 days after the Small Claims Court order was made. If you are late filing the notice of appeal, you can apply to the Supreme Court to extend the time, but you may not get it.

The appeal is not a new trial. The Supreme Court judge will decide only if the Small Claims Court judge made a mistake about the facts or the law.

The Small Claims BC Online Help Guide explains how to appeal a Small Claims Court decision.

Get help

With your case

You do not need a lawyer to go to Small Claims Court. But you'll probably better understand the process, as well as the strength of your case, if you get legal advice. If you have limited means, you might be able to get legal help from pro bono services, a student legal clinic, or an advocate. See our information on free and low-cost legal help (no. 430).

More information

The BC government website has how-to guides on Small Claims Court, including making a claim, replying to a claim, serving documents, getting ready for court, and getting results.

Web: gov.bc.ca/smallclaims

The BC government’s Small Claims Court Filing Assistant walks you through the steps of completing court forms.

Web: justice.gov.bc.ca/FilingAssistant

The BC Provincial Court website features information on Small Claims Court, as well as past court decisions.

Web: provincialcourt.bc.ca

The Small Claims BC Online Help Guide, from Justice Education Society, provides step-by-step information on each stage of a small claims case.

Web: smallclaimsbc.ca
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