Starting a Small Claim (20:V): Difference between revisions

List the date or dates when the cause(s) of action arose. Unless the date is very clear or the limitation period is about to expire, stating the month and year is sufficient. It is prudent to state the date as follows:  

This is where the claimant describes the remedy. In most cases, this will be an amount of money. However a claimant may request an alternative  remedy. For example, the claimant could request the return of an item or, in the alternative, the value of it, as well as damages. A claimant  who wants items returned should consider what condition they will be in, and whether he or she really wants them back.  

If there is no mention of interest in a contract between the parties, the court will award interest to the successful claimant from the date  the cause of action arose until the date of judgment. (See ''Court Order Interest Act'', supra, s. 1(1); ''Red Back Mining Inc v Geyser Ltd'', 2006 BCSC 1880 (CanLII)). This is called “pre-judgment interest”. Interest in a claim for debt is calculated from the date the debt became due and, in a claim for damages, from the date the damages arose.  

The court sets the interest rate every six months and publishes a table listing the rates applicable to each six-month period. The Notice of Claim should indicate a claim for “Interest pursuant to the ''Court Order Interest Act''” but leave the amount area blank; the registry will calculate the amount according to the table.  

'''Note: While a claimant may be paying a higher interest rate on a credit card or loan as a result of the defendant’s actions, the claimant  is limited to the pre-judgment interest rate set by the court unless the parties have expressly agreed that interest will be paid.'''

If the parties have agreed on a rate of interest, the Notice of Claim should indicate a claim for contract interest, the applicable interest rate, and the date from which the interest began to accrue. The amount of interest that has accrued up to the date of filing should be included on the Notice of Claim as well as the amount of interest that accrues each day. It is important to note that a claim for contract interest is,  in substance, a claim for contractual damages. Accordingly, the claim for contract interest together with the principal amount must be within  the Small Claims Court’s monetary jurisdiction. If a claim for contract interest has or could cause the total claim to exceed the court’s  monetary jurisdiction, it would be prudent to state on the Notice of Claim that the claimant abandons the amount necessary to bring the claim within the Small Claims Court’s monetary jurisdiction.  

If the parties have agreed that interest will be paid but have not agreed on a rate of interest, the rate of interest is five per cent per annum. (See ''Interest Act'', RSC 1985, c I-15, s 3).  

Generally, even if the parties agree to a rate of interest expressed with reference to a period other than one year (e.g., 2% per month), a  claimant can only recover a maximum of five per cent per annum unless the contract expressly states a yearly rate or percentage of interest  that is equivalent to the other rate (e.g., 24% per annum). (See ''Interest Act'', RSC 1985, c I-15, s 4).  

It is a criminal offence to receive, or enter into an agreement to pay or receive, interest at a rate that exceeds 60% per annum. (See ''Criminal Code'', RSC 1985, c C-46, s 347(1)). Interest has a broad definition and includes fees, fines, penalties, commissions, and other  similar charges including costs relating to advancing credit.  

If the judgment is not paid immediately, post-judgment interest may be awarded. The court has the discretion to vary the rate of interest or  to set a different date from which the interest commences. (See ''Court Order Interest Act'', supra, s 8).

In order to sue in Small Claims Court for a claim exceeding $25,000, the claimant must state, “The Claimant abandons the portion of any net judgment that exceeds $25,000” (Rules 1(4) and (5)). At any time prior to trial, the claimant can decide to sue for the full amount and apply  to transfer the claim to the Supreme Court of British Columbia (see ''Der v Giles'', 2003 BCSC 623). Once the trial has been heard, however,  the abandonment is likely permanent.  

There is an exception to the $25,000 limit. If more than one claimant has filed a Notice of Claim against the same defendant(s) concerning the  same event, or, if one claimant has filed Notices of Claim against more than one defendant concerning the same event, the judge may decide each  claim separately, even though the total of all the claims (not including interest and expenses) exceeds $25,000 (Rule 7.1(4)). Such claims often have a trial at the same time although the claimant(s) must request this.  

Filing fees are those fees paid to file the Notice of Claim and are either $100 or $156 unless the fees have been waived. The registry staff  will enter this amount. Filing fees are recoverable if the claimant is successful.  

Service fees are an estimate of the cost of serving the defendant(s). The  amount varies based on the method of service and the number of defendants. The registry staff will enter this amount. Service fees are recoverable if the claimant is successful; however, as the claimed  amount is only an estimate, a judge has discretion to either increase or decrease the allowed service fees.  

Unless a judge or the Registrar orders otherwise, an unsuccessful party '''must''' pay to the successful party (Rule 20(2)):  

*any other reasonable charges or expenses directly related to the proceedings. (See Rule 20(2); ''[http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=11138 Bagry v. Aoujla]'', [1994] B.C.J. No. 1212 (QL) (Prov. Ct.); ''[http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=11209 Gaudet v. Mair]'', [1996] B.C.J. No. 2547 (QL) (Prov. Ct.); ''[http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=11234 Johnston v. Morris]'', 2004 BCPC 511).  

An example of a reasonable expense related to the proceedings is a company search. Another example is costs to purchase cases used in  argument. (See ''[http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=24429 Faulkner v. Sellars] (1998), 9 C.C.L.I. (3d) 247 (B.C. Prov. Ct.)). For additional case examples, please see Rule 20(2); ''[http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=11138 Bagry v. Aoujla]'', [1994] B.C.J. No. 1212 (QL) (Prov. Ct.); ''[http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=11209 Gaudet v. Mair]'', [1996] B.C.J. No. 2547 (QL) (Prov. Ct.); ''[http://pm.cle.bc.ca/clebc-pm-web/manual/42757/reference/casePopup.do?id=11234 Johnston v. Morris]'', 2004 BCPC 511. If such expenses are known at the time of filing, they  should be stated on the Notice of Claim. If they occur afterwards, the successful party may request them at the conclusion of the trial.  

Parties are not compensated for the time they spend preparing for or attending court.