Difference between revisions of "Responding to a Small Claim (20:VI)"

Whether or not a defendant agrees or disagrees with all or a part of the claim, the defendant can counterclaim (''Small Claims Rules, supra'', Rule 4(1)). A defendant who wishes to counterclaim should review [[Do_You_Have_a_Small_Claim%3F_(20:III)|Section III: Do You Have a Claim?]] and [[Choosing_the_Proper_Forum_for_Small_Claims_(20:IV)|Section IV: Choosing the Proper Forum]]. A counterclaim is essentially a notice of claim but on a different form. A counterclaim must have a legal basis; there are penalties for proceeding to trial if there is no reasonable basis for success (''Small Claims Rules, supra'', Rule 20(5)).  

Although a defendant can start a separate claim either in Small Claims Court or another forum instead of counterclaiming, if the parties and witnesses are the same and the claim falls within the Small Claims Court jurisdiction, it is preferable that the defendant file a counterclaim so that both matters are heard together. If the defendant has commenced an action in a different forum, this should be mentioned in the Reply.  

A counterclaim is made on the Reply form by following the instructions and paying the required fee. The fee for a counterclaim is the same as the fee for a notice of claim and is eligible for a fee waiver.  

The relationship between a counterclaim and a set-off should be noted. (See ''[http://canlii.ca/t/1f485 Johnny Walker Bulldozing Co Ltd v Foundation Co of Canada Ltd''], 1997 CanLII 3726 (BCSC); ''[http://canlii.ca/t/1f485 Gwil Industries Inc v Sovereign Yachts (Canada) Inc]'', 2002 BCSC 713 (CanLII); ''[http://canlii.ca/t/1p6pw Lui v West Granville Manor Ltd]'', 1985 CanLII 155 (BC CA)). A counterclaim is a standalone claim and it is possible for a defendant to succeed on a counterclaim when the claimant has been unsuccessful. A set-off is a defence. If the claimant is successful, a set-off will reduce the amount payable to the claimant. If the claimant is unsuccessful, the set-off defence does not apply; the defendant is not awarded the amount of the set-off.  

As the counterclaim is on the reply form, it must be filed at the same time as the Reply (''Small Claims Rules, supra'', Rule 4(1) and (2)), within the time allowed for filing a Reply (''Small Claims Rules, supra'', Rule 3(4)), and at the registry where the notice of claim was filed (Rule 3(3)).

The registry will serve the claimant with the reply and counterclaim within 21 days of it being filed (''Small Claims Rules, supra'', Rules 3(5) and 4(2)).  

Once served, the claimant (now a defendant by counterclaim) must follow the same rules as replying to a Notice of Claim (''Small Claims Rules, supra'', Rule 5(7)). The claimant should review this section of the guide in its entirety.

Once served, the claimant (now a defendant by counterclaim) must follow the same rules as replying to a Notice of Claim . The claimant should review this section of the guide in its entirety.

'''Note:''' a counterclaim is not necessary if the respondent is only claiming fees and dispute-related expenses; a respondent may claim fees and dispute related expenses in the tribunal decision process.

*indicating in a completed Dispute Response Form that the respondent will add at least one claim in the dispute;

*completing an Additional Claim Form;

*providing the Additional Claim Form to the tribunal; and

*paying the required fee to add a claim (See [[Civil_Resolution_Tribunal_Fees_(20:App_I)|Appendix I: Civil Resolution Tribunal Fees]]).

If the defendant who has filed a Reply believes that a person or legal entity other than the claimant should pay all or part of the claim, he  or she may make a claim against that other party by completing a [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms Third Party Notice (Form 3)]. If a settlement conference, mediation session, or a trial conference has not been held, leave of the court is not required (''Small Claims Rules, supra'', Rule 5(1)(a)). If any of these have been held, the defendant must apply to the court for an order permitting the counterclaim to be filed against the third party (''Small Claims Rules, supra'', Rule 5(1)(b)).  

A third party claim is different from a claim against the incorrect defendant. A third party claim is made when a defendant believes that a third party should reimburse them if they are found to be liable to the claimant. For example, if a defendant is sued for a credit card debt, the defendant may third party the cardholder who actually spent the money giving rise to the debt.  

A defendant who wishes to issue a third party notice should review Section III. Do You Have A Claim? and Section IV. Choosing The Proper Forum. “ A third party claim is essentially a notice of claim but on a different form. A third party claim must have a legal basis and there are penalties for proceeding to trial if there is no reasonable basis for success.  

To start a third party claim, the defendant must complete Form 3 and file it in the same registry where the Notice of Claim was filed (''Small Claims Rules, supra'', Rule 5(2)). The defendant must serve the third party with a copy of the filed Form 3, a blank Reply form, a copy of the Notice of Claim, a copy of the Reply to the Notice of Claim, and all of the documents and notices the other party would have received (''Small Claims Rules, supra'', Rule 5(3)); all of these documents are to be served in the same manner as serving a Notice of Claim (''Small Claims Rules, supra'', Rule 5(4)). A defendant has only '''30 days''' after filing to serve the third party and file a certificate of service (Form 4; ''Small Claims Rules, supra'', Rule 5(5)) at the registry. If the third party is not served and the certificate of service is not filed within 30 days, the third party notice expires but can be renewed (''Small Claims Rules, supra'', Rule 5(5.1)).  

The registry will serve the claimant with the third party notice within 21 days of its being filed (''Small Claims Rules, supra'', Rule 5(6)).

Once served, a third party must follow the same rules as replying to a Notice of Claim (''Small Claims Rules, supra'', Rule 5(7)). The third party should review this section of the guide in its entirety.

*paying the required fee to add a claim (see Appendix I: Civil Resolution Tribunal Fees).

A respondent who adds an additional party to a claim must complete the steps for applying for CRT Dispute Resolution, except the time frame for providing notice to the other person is 30 days instead of 90 days and the original Dispute Notice and any responses must be provided along with the Dispute Notice for the additional claims.

If the defendant was served inside British Columbia, a Reply must be filed within '''14 days after service''' (''Small Claims Rules, supra'', Rule 3(4)). If the defendant was served outside British Columbia, a Reply must be filed within '''30 days after service''' (''Small Claims Rules, supra'', Rule 3(4)). The one exception is where the claimant is served with a counterclaim. The claimant is required to file a Reply within 14 days after service even if the claimant is served outside British Columbia.

Where a claimant was careless and this carelessness contributed to the damages suffered, a defendant might plead the defence of contributory negligence. An example is where a claimant tripped over a bag that was carelessly left in a walkway. The defendant may be liable but the claimant may have been contributorily negligent for failing to keep watch for obstacles.  

A defendant who believes that the claimant was partially at fault should state in the reply: “The defendant pleads and relies upon the ''Negligence Act''” (see ''Negligence Act'', RSBC 1996, c 333). Each party is liable to the degree that they are at fault; where degrees of fault cannot be determined, liability is apportioned equally (see ''Negligence Act, supra'', s 1(2))

Where, by express or implied agreement, a claimant knew of and understood the risk he was incurring and voluntarily assumed that risk, the defendant will not be liable. Because voluntary assumption of risk is a complete defence, it is very difficult to prove.

==== c) Criminality or Immorality ====

Where a claimant stands to profit from criminal behaviour or compensation would amount to an avoidance of a criminal sanction, the claimant cannot recover damages. (See ''[http://canlii.ca/t/1fs4g Hall v Hebert]'', [1993] 2 SCR 159; ''[http://canlii.ca/t/1vmgv British Columbia v Zastowny]'', [2008] 1 SCR 27). This is narrowly construed and a claimant should read Hall before relying upon it.

If the defendant can show that the accident could not have been prevented even if the defendant had exercised reasonable care, the defendant cannot be liable. (See ''[http://canlii.ca/t/1tvmf Rintoul v X-Ray and Radium Industries Ltd]'', [1956] SCR 674). For this defence to apply, the defendant must have had no control over whatever occurred and its effect could not have been avoided even with the best effort and skill.  

If the claimant is suing on a contract that is illegal (e.g., it calls for a criminal interest rate), the defendant may ask the court to decline to enforce the illegal provision or possibly the entire contract. Depending on the circumstances, the court may consider modifying the contract to remove the illegality.  

If the defendant honestly and reasonably believed that an assault or battery was imminent and used reasonable force to repel or prevent the assault or battery, the defendant may not be liable for any injuries or damage suffered by the claimant as a result. (See ''[http://canlii.ca/t/1fsx3 R. v Lavallee]'', [1990] 1 SCR 852; ''[http://canlii.ca/t/gwf9z Wackett v Calder]'', [1965] BCJ No 129; ''[http://canlii.ca/t/gwh0b Brown v Wilson]'', [1975] BCJ No. 1177; and ''R v Beckford'', [1987] All ER 425).  

The same general rules apply as for self-defence provided that the use of force is reasonable. (See ''[http://canlii.ca/t/g1905 Gambriell v Caparelli]'', [1974] OJ No. 2243).  

Certain statutes such as the ''Business Practices and Consumer Protection Act'', SBC 2004, c 2 provide a party with a cause of action that would not otherwise exist. A defendant should carefully read the statutes that the claimant is relying upon to see if the statute creates or prescribes certain defences.

Where the claim is for remuneration in relation to real estate or property management services, the claimant must have either been licensed when the services were rendered or have been exempt from the requirement to be licensed. (See ''Real Estate Services Act'', SBC 2004, c 42, s.4). If the claimant was required to be licensed but was not licensed, the claimant cannot legally charge a fee.  

The Reply must be filed in the same registry where the Notice of Claim was filed (''Small Claims Rules, supra'', Rule 3(3)). There is a filing fee except where the defendant admits and agrees to pay the entire claim or obtains a fee waiver.

Generally, a Reply cannot be filed late however, in practice, the registry may allow a Reply to be filed late as long as the registrar has not made a default order or set a date for a hearing (''Small Claims Rules, supra'', Rule 3(4)(b)).

The registry will serve the Reply and Counterclaim, if any, on each of the other parties (''Small Claims Rules, supra'', Rules 3(5) and 5(6)).