Going to Trial in Small Claims Court (Script 168)

From Clicklaw Wikibooks

This script explains how to prepare for a trial in small claims court.

Before you sue—try to settle the case

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 small claims website starts with this suggestion and explains settlement options. They include using demand letters, online dispute resolution, mediation, arbitration, collection agencies, negotiation, and payment terms.

New process started June 1, 2017

As of June 1, 2017, the government made important changes to small claims court. Now, where you sue depends on the amount you seek:

Before the trial

You may need to deal with three procedures before trial: mediation, settlement conference, and trial conference. Sometimes they are mandatory, and other times, optional.

1. 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,

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.

Small claims rule 7.3 deals with mediation. Script 165 and this provincial government website both have more on mediation.

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 rule 9.2 (a summary trial for financial debt in Vancouver).

Mediation is mandatory only if one party files a notice to mediate or the court orders the parties to use it.

2. Settlement conference

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.

What happens at the settlement conference?

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).

3. Trial conference

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.

Written offer of settlement

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.

If you go to trial

Some trials in Vancouver and Richmond use different processes.

  • Simplified trial in Vancouver and Richmond
In Vancouver and Richmond, claims between $5,001 and $10,000 go to a 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.
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.
  • Summary trial in Vancouver
Vancouver uses a 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

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.

Ordinary witnesses

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

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.

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.

You must arrange for your witnesses to attend the trial

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 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

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

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 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.

If you’re the defendant

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.

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.

After the evidence is presented

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.

The judgment (decision)

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.

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.

Can you appeal a small claims court judgment?

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 you may not 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. You cannot appeal a supreme court decision on an appeal of a small claims case.

The small claims website explains how to appeal and the process and cost involved.

If you want to appeal a small claims court judgment, you should consult a lawyer right away.

More information

[updated October 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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