Small Claims Trials (20:XIV)
A trial is often very difficult, stressful, and unpredictable. If possible, it is generally in the best interests of all parties to settle. However, if the matter cannot be resolved at the settlement/trial conference, a trial will be scheduled (Rule 10). The notice of trial will be sent by mail to the parties’ address on file. If a claimant does not attend the trial, the claim will be dismissed. If a defendant or third party does not attend, the claim will be allowed and judgment granted against the absent party.
Statements made by the claimants or the defendants at the settlement/trial conference are protected by settlement privilege and cannot be used at trial. A statement made during the settlement/trial conference is not admissible in cross-examination. Also, the judge at the settlement/trial conference will not be the trial judge. This allows the parties to discuss all issues without fear that their statements will be used against them at trial.
Parties should remember that settlement is possible at any time before the judge decides the case. This includes after evidence and arguments are heard at trial.
Parties should watch at least one trial in order to familiarise themselves with the correct procedure.
A. Simplified Trial for Claims: $5,001 - $10,000
Vancouver (Robson Square) and Richmond hold simplified trials pursuant to Rule 9.1. Simplified trials are set for one hour before an adjudicator. An adjudicator will usually be a justice of the peace but may occasionally be a judge. A justice of the peace adjudicator is referred to as “Your Worship”. Simplified trials are held in the evening in Vancouver and during the day in Richmond.
The parties must each file a Trial Statement at least 14 days before the trial date and serve each other party at least 7 days before the trial (Rules 9.1(17) and (18)). There are penalties for failing to comply to comply with these timelines (Rule 9.1(19)).
The trial does not need to comply with formal rules of procedure and evidence (Rule 9.1(20)). The adjudicator will ask questions and control the proceedings to stay within the one-hour timeframe.
B. Summary Trial for Financial Debt
At the Vancouver (Robson Square) registry, financial debt claims will be set for a half-hour summary trial before a judge. Financial debt claims are claims in which one of the parties is in the business of loaning money or extending credit. Often, little in the way of defence can be offered in situations of financial debt and the summary trial may in some ways come to resemble a payment hearing. Where a defence with some merit is advanced, the judge may send the claim to mediation, order a trial conference, or order a traditional trial (Rule 9.2(13)). The judge may conduct the trial without complying with the formal rules of evidence or procedure (Rule 9.2(9)). Note the rules requiring early disclosure of all relevant documents (Rules 9.2(7) and (8)).
C. Regular Trial
Rule 10 trials are held at all registries and are the most common form of small claims trial.
1. Courtroom Etiquette
- Be on time. If you are late, apologize and be prepared to give an excellent explanation.
- Introduce yourself and state your name clearly. Remember to spell your surname for the record.
- Use simple words; do not use “legalese”.
- Do not speak directly with opposing parties. Make submissions only to the judge and have him or her ask questions to the opposing party.
- Never call witnesses by their given name. Use Mr., Ms., Miss, or Mrs. followed by their last name.
- A judge of the Provincial Court is referred to as “Your Honour” and the clerk is referred to as “Madame Clerk” or “Mister Clerk”. When referring to another party, use Mr., Ms., Miss, or Mrs. followed by their last name or refer to them according to their status in the claim (e.g., the defendant).
- Generally you should limit objections to issues that are of central importance to your case. If you have an objection, stand up quickly and say “objection”. The judge will acknowledge you and may ask for the reason you are objecting.
2. Court Room Layout
The judge’s bench is usually elevated above the rest of the court so the judge has a good view of the proceedings. The litigants’ table is in front of the judge, and the parties will come and sit there when their case is called. Often there is a raised lectern to hold papers when a litigant stands to ask questions. The court clerk's table is beside the witness box and between the litigants’ table and the judge’s bench. The witness box will be on either the judge’s left or right. The public gallery will fill up the remaining part of the courtroom. Parties will wait in the gallery until their case is called.
There will be microphones throughout. They do not amplify your voice and are for recording purposes only. Speak at a moderate speed and project your voice.
3. Check-In Procedure
The court clerk will ask ahead of time for the names of each party and, if they have one, their lawyer. Each party must tell the court clerk or judge as soon as possible if there are any preliminary motions or applications that should be heard first, whether there are any problems with witnesses and possible delays, and whether the number of witnesses or issues has changed from the settlement conference. This will help to determine the schedule of cases for the day and avoid as many delays as possible.
If all matters on a given day proceed to trial, the courtroom will often be overbooked, and you will be asked about the urgency of your trial. If you are not heard first, you may be given a choice to wait and see if another judge becomes available, or to adjourn to another date. If the trial has been previously adjourned, or expert or out of town witnesses are present, the trial will likely be given priority.
When the clerk has everyone organized, the judge will be called in. The clerk will announce, “order in court” and everyone must stand. The judge will bow before sitting and all parties should then bow in return before sitting. Next, the court clerk will call out the name of a case, at which time all parties in that case will come to the front and identify themselves to the judge.
4. General Order of Proceedings
a) Preliminary Motions
b) Claimant’s Case
- Claimant’s opening statement
- Claimant’s direct examination of its witnesses
- Defendant’s cross-examination of the claimant’s witnesses
- Claimant’s re-examination of its witnesses
- Defendant’s re-examination of the claimant’s witnesses
c) Defendant’s Case
- Defendant’s opening statement
- Defendant’s direct examination of its witnesses
- Claimant’s cross-examination of the defendant’s witnesses
- Defendant’s re-examination of its witnesses
- Claimant’s re-examination of the defendant’s witnesses
d) Closing Arguments
- Claimant’s closing
- Defendant’s closing
- Claimant’s rebuttal
5. Opening Statement
The claimant’s opening statement should summarise the facts surrounding the claim, the legal basis for the claim, and the relief that is sought. The defendant’s opening statement should summarise the defendant’s version of the facts and the reasons it opposes the claimant’s claim or the relief the claimant is seeking.
The opening statement should also alert the court to the types of evidence that will be presented and from whom the court will hear. Opening statements should not contain legal arguments and should be as brief as possible.
If there are witnesses other than the parties, the claimant should ask for an order excluding those witnesses from the courtroom.
6. Direct Examination
When each party is examining its own witness, it is that party’s direct examination. The party calling the witness should tell the court whether the witness will swear or affirm their testimony.
Witnesses can be led on matters that are not in issue (e.g., their name, where they work, etc.). Leading questions tend to be ones where the answer is either yes or no. Leading the witness at the start will help the witness to relax.
When asking questions about issues that are in dispute or are related to a party’s claim or defence, that party should refrain from suggesting answers to the witness. The witness must be allowed to give evidence in his or her own words.
A witness must authenticate all documents that are entered into evidence unless the parties have agreed to their authenticity. When authenticating a document, pass three copies to the clerk: one for the judge, one for the court record, and another for the witness. Once the witnessed has identified the document, it will be entered into evidence and given an exhibit number.
When the other party is conducting its direct examination, take detailed notes for cross-examination and closing arguments.
Once the direct examination of a witness has concluded, the witness may be cross-examined by the other party. There are two main purposes of cross-examination: to point out inconsistencies and omissions and to introduce facts or conclusions. If the witness has performed poorly or has not been damaging, it may not be necessary to cross-examine that witness.
Some questions can make the situation worse. A witness should never be asked to repeat what he or she said in “chief”. This only emphasizes the point and allows the witness to clarify or minimise weaknesses
At some point in cross-examination, the opposing version of the facts should be put to the witness to allow them to comment. This is known as the rule in Browne v Dunn and, if not followed, can result in less weight being placed on a witness’ evidence or the recall of adverse witnesses. (See Budnark v Sun Life Assurance Co. of Canada, 1996 CanLII 1397 (BCCA)).
A witness should not allow the cross-examiner to misconstrue their evidence. If a question is unclear, the witness should ask for clarification. Only the question asked should be answered and additional information should not be volunteered. It is okay if the witness does not know the answer to a question; the witness should not guess the answer.
NOTE: Parties should not speak to their witnesses after cross-examination and before or during re-examination about the evidence or issues in the case without the court’s permission. (See R. v Montgomery, 1998 CanLII 3014 (BCSC)). If such a discussion occurs, the witness’ evidence may be tainted and the court may not believe it.
If new evidence is introduced during cross-examination that was not reasonably anticipated in direct examination or if a witness’ answer needs to be clarified or qualified, the judge may give permission to re-examine the witness on the new evidence. (See R v Moore, OJ No. 134; and Singh v Saragoca, 2004 BCSC 1327 (CanLII) at para. 40). During re-examination, leading questions cannot be asked.
9. Closing Arguments
Closing arguments are an opportunity for each party to persuade the judge of its position. Evidence that strengthens the case should be highlighted and evidence that weakens the case should be explained and addressed. The weaknesses should be addressed in the middle of the closing so that the closing may start and finish on positive notes.
It may be necessary to comment on the credibility of witnesses, conflicts in testimony, and the insufficiency of evidence. The comments should be factual and allow the judge to arrive at a conclusion.
It is also important to summarise the relevant law and refer to specific cases that are on point. All case law should have been shared with all other parties well in advance of the trial.
Closing is not an opportunity to introduce new evidence. If something has been omitted, it can only be introduced if the judge grants permission to re-open that party’s case.
When the evidence, submissions, and closing arguments are finished, the judge must give a decision. The judge may give a decision orally at the end of the trial, at a later date, or in writing (Rule 10(11)). The registrar will notify the parties of the date to come back to court for reasons or, if the decision is in writing, when it was filed in the registry (Rules 10(12) and (13)).
When payment from one party to another is part of the judgment, the judge must make a payment order at the end of the trial and ask the debtor whether he or she needs time to pay (Rules 11(1) and (2)). If the debtor does not require time to pay, the judgment must be paid immediately (Rule 11(7)). If time to pay is needed, the debtor may propose a payment schedule, and if the successful party agrees, the judge may order payment by a certain date or by instalments (Rules 11(2)(b), (3), and (4)). If the creditor does not agree to the debtor’s proposal, the judge may order a payment schedule or a payment hearing (Rule 11(5)).
If a payment schedule is not ordered, the debt is payable immediately and the creditor is free to start collection proceedings (Rule 11(7)).
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