I Need to Take Someone to Court — What's the Process?

From Clicklaw Wikibooks

There are a number of reasons that you may want to sue someone. They may owe you money, they may have damaged your propertySomething which can be owned. See "chattels" and "real property." or your reputation, or they may have injured you on purpose, by accident or through improper treatment.

You can sue a person for a debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed. or damagesAn award of money payable by one party to a court proceeding to another, usually as compensation for loss or harm suffered as a result of the other party’s actions or omissions. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse. See "breach of contract" and "tort." (compensation for harm) for up to $25,000 in Small Claims Court. As of June 1, 2017, this limit will be increased to $35,000, and most claims for $5,000 or less will no longer be dealt with by the Small Claims court and will instead be dealt with through the Civil Resolution Tribunal - website here:www.civilresolutionbc.ca.

You can sue in BC Supreme Court for any amount.

Certain types of claims (defamation or enforcement of a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. of builders lien, for example) can only be pursued in BC Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.".

In some cases it may make practical sense for you to voluntarily abandon the portion of your claim over $25,000 ($35,000 as of June 1, 2017) to allow you to pursue a claim in Small Claims Court rather than BC Supreme Court.

First steps

  1. Decide whether you want to sue in the Civil Resolution Tribunal (on or after June 1, 2017), Small Claims Court or BC Supreme Court. Ensure you are within the limitation periodA time period after which someone may not make a claim because the right to do so has expired. The time for making a claim is set by legislation, and limitation periods will differ depending on the type of claim or the relationship between people making and defending the claim. for doing so.
  2. Complete a Civil Resolution Tribunal Dispute Application Form and submit the appropriate fee, namely $150 for the paper form or $125 online form. The Tribunal will issue a Dispute Notice which you will have to provide to other parties with a blank Dispute Response.
  3. Complete a Small Claims Court Notice of Claim or Supreme Court Notice of Civil Claim. Small Claims forms are available online from the Ministry of Justice website. Supreme Court forms can be accessed through the "Laws, Cases & Rules" page on Clicklaw; click on "BC Supreme Court Civil Forms". Include the important facts related to your claim.
  4. Take the documents to the appropriate court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed., file them (there is a fee) and have them stamped.
  5. Serve a copy of the documents on the defendant. The usual way is to get a friend or a "process server" to give the documents to the defendant in person. The court registry can tell you about other ways you can serve documents.
Choosing the correct court: Small Claims Court's distinct features
  • simple procedures meant to be accessible to the public,
  • no lawyers required,
  • less time to mediationA dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator." and trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction.",
  • judgments for damages limited to a maximum of $25,000,
  • no jurisdictionWith respect to courts, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution." to deal with a claim of defamation (libel or slander), and
  • no awards for legal costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees." (this could be an incentive or a disincentive).

Choosing the correct court: Supreme Court's features
  • no limit on the possible awardA mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration" and "family law arbitrator." for damages,
  • jurisdiction for all types of law suits,
  • partial legal costs usually awarded to successful partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." (again, could be an incentive or a disincentive),
  • many procedural steps, a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." is not necessary but is desirable, and
  • timely and costly.

Since June 2013, the new Limitation Act has simplified time limits for filing civil lawsuits. Instead of many different basic limitation periods based on the type of legal actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order., there is now a single two-year basic limitation period for all civil claims. Exceptions to this are civil claims that enforce a monetary judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment.", specifically listed "exempted claims" and actions that have limitation periods set by other statutes. The new Act also introduced a 15-year ultimate limitation period. The new Act’s limitation periods apply to claims arising from acts or omissions that occur and are discovered on or after June 1, 2013.

What happens next

Civil Resolution Tribunal

On or after June 1, 2017, the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim." will need to file a Dispute Response and has to provide you with a copy. You and the respondent will then begin an online Facilitation process with a Facilitator, which includes mediation. If this does not resolve the dispute your case will go before the Tribunal.

Small Claims Court

The defendant will need to file a ReplyA legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim," and "Counterclaim." and they or the Registry will provide you with a copy. You and the defendant will then receive a Notice of Settlement Conference.

A settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer." conference is an opportunity for you and the defendant to meet with a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal. to see if you can agree to resolve the claim. The judge at a settlement conference is only there to help see if the parties can agree on a settlement. He or she cannot impose an agreement.

If the settlement conference doesn't resolve the caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", you will be given a Notice of Trial. At trial, you will present your case, and the defendant will be given a chance to present his or her case. The trial judge will then decide who wins.

Small Claims Court now offers mediation in certain kinds of cases. If yours is one of these cases, a trained independent person will meet with you and the other parties in your case to see if you can agree on a way of resolving it. Ask someone at the court registry where you file your documents if mediation is available in your case.

Supreme Court

The defendant must file and provide you with a Response to Civil Claim in response to your Notice of Civil Claim.

During the next stage of a Supreme Court proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action.", known as discoveryA step in a court proceeding in which a party may demand that the other party produce specific documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be trial. See "examination for discovery.", the parties exchange lists of documents and may examine each other for discovery out of court. Finally, if the case is not resolved, it will proceed to trial. At trial, you will need to present your evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." through witnesses, documents and other exhibits and the defendant will need to do the same. At the end of the trial, the judge (or in some cases, a jury) will decide who wins.

If the defendant does not file a Reply in Small Claims Court or a Response to Civil Claim in Supreme Court, you can apply to the court for a default judgmentA judgment obtained by a claimant following the respondent's failure to reply to the claimant's claim within the proper time from service. In the Supreme Court, a respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without the response being served on the claimant, the claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See "desk order divorce" and "Response to Family Claim." giving you all or part of your claim.

Where to get help

See the Resource List for a list of helpful resources. Your best bets are:

Before meeting with a lawyer or advocateA lawyer or a person other than a lawyer who helps clients with legal issues; to argue a position on behalf of a client., complete the form Preparing for Your Interview included in this Guide. Make sure you bring copies of all documents relating to your case.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by John Bilawich, April 2017.
Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence Legal Help for British Columbians © Cliff Thorstenson and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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