Going to Trial in Small Claims Court (Script 168)

From Clicklaw Wikibooks

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


[updated October 2017]

The above was last reviewed for legal accuracy by Anna Kurt, Ganapathi Law Group.



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