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Starting a Small Claim (20:V) (view source)
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{{LSLAP Manual TOC|expanded = smallclaims}} | {{LSLAP Manual TOC|expanded = smallclaims}} | ||
== A. Settlement Letter == | == A. Civil Resolution Tribunal == | ||
The Civil Resolution Tribunal is designed to facilitate dispute resolution in a way that is accessible, speedy, economical and flexible. It relies heavily on electronic communication tools. It focuses on resolution by agreement of the parties first, and by the Tribunal’s binding decisions if no agreement is reached. Thus, there are several steps to the CRT process before actually applying for dispute resolution with the tribunal. | |||
=== 1. Self Help === | |||
A claimant must first attempt to resolve the dispute using the tribunal’s online dispute resolution services. The claimant may use the website’s resources to gather information and diagnose their claim. | |||
==== a) Solution Explorer ==== | |||
The Solution Explorer, available on the CRT website, includes free legal information and self-help tools, such as guided pathways, interactive questions and answers, tools, templates and other resources. Applicants can apply to the CRT for dispute resolution right from the Solution Explorer. | |||
Small Claims Solution Explorer website: | |||
https://civilresolutionbc.ca/how-the-crt-works/getting-started/small-claims-solution-explorer/ | |||
Strata Solution Explorer website: | |||
https://civilresolutionbc.ca/how-the-crt-works/getting-started/strata-solution-explorer/ | |||
==== b) Online Negotiations ==== | |||
The parties may then engage in an online negotiation that is monitored but not mediated or adjudicated. Online negotiations connect parties in order to encourage negotiated settlement. This tool will guide the parties through a structured, low cost negotiation phase. | |||
=== 2. Dispute Resolution – Case Management === | |||
If a claimant’s attempt at online dispute resolution has been unsuccessful, the claimant must formally request resolution of the claim through the tribunal and pay all required fees. A claimant cannot request tribunal resolution if there is a court proceeding or other legally binding process to resolve the claim and a hearing or trial in that court or other legally binding process has been scheduled or has occurred to decide that claim. | |||
If the other party does not agree to tribunal resolution or does not reply to the request for tribunal resolution, the tribunal will not resolve the claim unless the defendant is required to participate by either a statute or a court order. Despite the consent of both parties, the tribunal retains authority to refuse to resolve a claim or dispute and may exercise this authority at any point before making a final decision resolving the dispute. The general authority for refusing to resolve a claim or dispute is set out in s. 11 of the CRTA. | |||
==== a) Applying for Dispute Resolution ==== | |||
To request dispute resolution by the tribunal an applicant must provide to the tribunal a completed Dispute Application Form, and pay the required fee. | |||
===== (1) Application Costs and Where to Apply ===== | |||
Applications may be made online or a paper application form can be requested by calling 1-844-322-2292. Fees vary slightly by method of application. The cost to apply for dispute resolution online is $125, while the cost by paper application is $150. | |||
If you are using a paper application, it may be sent to the CRT by: | |||
PO Box 9239 Stn Prov Govt | |||
Victoria, BC V8W 9J1 | |||
===== (2) After an Application is Received ===== | |||
After an initial review of the Dispute Application Form, the tribunal will provide to the applicant one of the following: | |||
a) a request for more information about the application; | |||
b) a Dispute Notice to provide to each respondent; or | |||
c) an explanation as to why the Dispute Notice will not be issued | |||
Once a Dispute Notice is issued by the tribunal the applicant must: | |||
a) provide a Dispute Notice and a blank Dispute Response Form to every respondent named in the dispute within 90 days from the day the Dispute Notice is issued by | |||
the tribunal; | |||
b) complete the Proof of Notice Form; | |||
c) provide the completed Proof of Notice Form to the tribunal within 10 days of providing notice; and | |||
d) provide any other information or evidence about the Dispute Notice or notice process requested by the tribunal. | |||
===== (3) Providing Notice to Respondents ===== | |||
A Dispute Notice can be provided to a respondent by e-mail, fax, registered mail, courier delivery requiring a signature, or by delivering it in person. Notice by e-mail is acceptable proof that the notice requirements are met only if the respondent confirms receipt by sending a reply by e-mail to the applicant by the date shown on the Dispute Notice. Additional rules regarding notice delivery and when notice is considered accepted can be found on the CRT website found at: | |||
https://civilresolutionbc.ca/wp-content/uploads/2017/05/CRT-rules-effective-June-1-2017.pdf (Rules 50-71). | |||
Despite the rules, the tribunal may determine that the applicant has provided notice to a respondent using another method than permitted by the tribunal. The proof of notice form may be found at this link: | |||
https://civilresolutionbc.ca/wp-content/uploads/2017/05/CRT-ProofOfNotice-Person.pdf. | |||
A Dispute Notice is invalid if it not provided to a respondent by the deadline on the Dispute Notice, unless the tribunal extends the deadline for providing notice. An applicant can ask the tribunal for more time to provide notice to a respondent by completing the applicable section of the Request for Directions on How to Provide Notice Form and providing it to the tribunal before the deadline for providing notice has passed. | |||
If you have unsuccessfully tried to deliver a Dispute Notice to a respondent and would like to request an alternative method to deliver the notice or an extension of time see: | |||
http://civilresolutionbc.ca/wp-content/uploads/2017/02/CRT-Alternative-Service-Extension-Form.pdf. | |||
==== b) Permitted Methods of Service ==== | |||
===== (1) Individual Under 19 Years Old ===== | |||
The applicant must provide the Dispute Notice (by any above method) to that respondent’s parent or guardian unless the tribunal orders otherwise. | |||
===== (2) Individuals Over 19 Years Old with Impaired Mental Capacity ===== | |||
If an applicant knows that a respondent has a committee of estate, a representative appointed in a representation agreement, or an attorney appointed in an enduring power of attorney, the applicant must provide the Dispute Notice to that person | |||
An applicant must also provide the Dispute Notice to the respondent or the person with whom the respondent normally resides, and the Public Guardian and Trustee. | |||
===== (3) Companies defined by the Business Corporations Act ===== | |||
An applicant can serve these parties by the following methods: by registered mail, courier delivery requiring a signature or delivery in person to the address shown for the registered office with the Registrar of Companies; by delivery in person at the place of business of the company, to a receptionist or a person who appears to manage or control the company’s business there; or, by delivery in person to a director, officer, liquidator, trustee in bankruptcy or receiver manager of the company. | |||
===== (4) Extraprovincial Corporation defined by the Business Corporations Act ===== | |||
An applicant can serve these parties by the following methods: by registered mail, courier delivery requiring a signature or delivery in person to the address shown for the head office in the office of the Registrar of Companies if that head office is in British Columbia; by registered mail, courier delivery requiring a signature or delivery in person to the address shown in the office of the Registrar of Companies for any attorney appointed for the extraprovincial company; by delivery in person to the place of business of the extraprovincial company, to a receptionist or a person who appears to manage or control the company’s business there; or, by delivery in person to a director, officer, liquidator, trustee in bankruptcy or receiver manager of the extraprovincial company. | |||
===== (5) Society incorporated under the Societies Act ===== | |||
An applicant can serve these parties by the following methods: by registered mail, courier delivery requiring a signature or delivery in person to the address for service with the Registrar of Companies; or by delivery in person to a director, officer, receiver manager or liquidator of the society. | |||
===== (6) Partnerships ===== | |||
An applicant can serve these parties by the following methods: by registered mail, courier delivery requiring a signature or delivery in person to a partner; or, by delivery in person to the partnership’s place of business, to a receptionist or to a person who appears to manage or control the partnership’s business there. | |||
===== (7) A trade union, municipality, extraprovincial society, unincorporated association, or a party outside Canada ===== | |||
An applicant must complete the Request for Directions on How to Provide Notice Form and provide it to the tribunal, and complete the steps and follow the directions provided by the tribunal. | |||
===== (8) ICBC (motor vehicle accident related claims) ===== | |||
An applicant must also provide the Dispute Notice to the Insurance Corporation of British Columbia (ICBC) by: sending a copy of the Dispute Notice by registered mail or courier to 800 – 808 Nelson Street, Vancouver, BC V6Z 2H1; or, delivering a copy of the Dispute Notice in person to an employee at any ICBC claim centre. | |||
==== c) Facilitated Dispute Resolution (FDR) ==== | |||
The purpose of the case management phase is to facilitate an agreement between the parties and to prepare for the tribunal hearing should it be required. The Preparation for Tribunal Hearing phase may be conducted at the same time as the Facilitated Dispute Resolution phase. | |||
A case manager will determine which FDR processes are appropriate for a particular dispute and has the authority to require the parties to participate. They can make adjustments or modifications to the facilitation directions at any time during facilitation. FDR may be conducted in person, in writing, by telephone, via videoconferencing, via email, via other electronic communication tools, or a combination of these methods. These negotiations will be mediated by the case manager. | |||
The case manager can direct any party in a dispute to provide to the tribunal and to every other party any information and evidence, including explanations of that information or evidence, information about a party’s ability to pay an amount reached by agreement or ordered by the tribunal, responses to another party’s information and communications, and that party’s position on any proposed resolution of a claim in the dispute. During facilitation, the facilitator can refer any matter requiring a decision or order to a tribunal member, including a party’s non-compliance with directions. | |||
At any time during facilitation, the case manager can provide a non-binding neutral evaluation of the claims including any representations, demands, offers, information or evidence relating to a claim, or views on how the tribunal would likely resolve the dispute if it were to be resolved by the tribunal decision process. A case manager’s non-binding neutral evaluation is covered by the confidentiality and non-disclosure rules. If the parties reach a resolution by agreement on any or all of the claims in their dispute, they can ask the tribunal to make a consent resolution order to make the terms of their agreement an order of the tribunal, and pay the required fee. If the parties agree to resolve some, but not all, claims by agreement, the case manager can record their draft agreement based on the terms agreed upon by the parties, and provide a draft consent resolution order to a tribunal member immediately, or along with the Tribunal Decision Plan. | |||
If the case manager decides the parties cannot resolve their dispute by agreement, they will inform the parties that activities aimed at finding a resolution by agreement are over, and ask the applicant to pay the tribunal decision fee. If the applicant does not pay the tribunal decision fee, a respondent can pay it. If no party pays the tribunal decision fee within the time period set by the case manager the tribunal may refuse to resolve or dismiss the dispute. If a party pays the tribunal decision fee, the process to prepare the dispute for a tribunal decision will begin. | |||
==== d) Preparation for Tribunal Hearing ==== | |||
If the FDR process does not result in a settlement, the case manager will assist the parties in preparing for adjudication by ensuring the parties understand each other’s positions and by directing the exchange of evidence. Most of this exchange and communication will occur online. To prepare the dispute for a tribunal decision, the case manager can support the parties in identifying and narrowing the claims or issues that will be decided in the tribunal decision process, identifying the facts relevant to resolving the claims or issues in the tribunal decision process, and taking any other steps to prepare for the tribunal decision process. | |||
As well, the case manager will give the parties a Tribunal Decision Plan, which sets out required information, steps, and timelines to prepare the dispute for the tribunal decision process. Once the case manager has given the Tribunal Decision Plan to the parties, they cannot add any other party or claim without permission from the tribunal. The tribunal may at any time order that a party be added to the dispute and make directions as to the process to be followed. | |||
If a party does not comply with the Tribunal Decision Plan the tribunal may do any of the following: | |||
a) the tribunal can decide the dispute relying only on the information and evidence that was provided in compliance with the Tribunal Decision Plan; | |||
b) the tribunal can dismiss the claims brought by a party that did not comply with the Tribunal Decision Plan; and | |||
c) the tribunal can require the non-complying party to pay to another party any fees and other reasonable expenses that arose as a result of a party’s non- | |||
compliance with the Tribunal Decision Plan. | |||
Facilitation ends when the case manager determines that the Tribunal Decision Plan is complete. | |||
== B. Settlement Letter == | |||
The fastest and least expensive way to resolve a dispute is to tell the other person what you are claiming from them and why you are claiming it. If the other person agrees with the amount or responds in a manner that leads to a settlement, both parties will save the time, effort, expense, and uncertainty of a lawsuit. | The fastest and least expensive way to resolve a dispute is to tell the other person what you are claiming from them and why you are claiming it. If the other person agrees with the amount or responds in a manner that leads to a settlement, both parties will save the time, effort, expense, and uncertainty of a lawsuit. | ||
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Settlement letters should be brief, factual, and clearly state the amount claimed even if that amount exceeds $25,000. Settlement letters should have a courteous tone as a letter that invokes a hostile reaction from the recipient will be counter-productive. A party writing a settlement letter should never threaten criminal or regulatory penalties; '''extortion is a criminal offence'''. | Settlement letters should be brief, factual, and clearly state the amount claimed even if that amount exceeds $25,000. Settlement letters should have a courteous tone as a letter that invokes a hostile reaction from the recipient will be counter-productive. A party writing a settlement letter should never threaten criminal or regulatory penalties; '''extortion is a criminal offence'''. | ||
== | == C. Identifying the Defendant(s) == | ||
When drafting a notice of claim and throughout the litigation process, it is important to stick to the '''relevant''' facts. Court is not a forum for airing grievances that do not give rise to a claim. For example, in a claim for breach of contract, the fact that the defendant acted rudely is generally not relevant to the claim. Including irrelevant facts confuses the issues, wastes time, raises tensions, and makes it more difficult to successfully prove the claim. A good rule to follow for each type of claim is to include '''only the facts necessary''' to satisfy the legal test for that type of claim; brief is better. | When drafting a notice of claim and throughout the litigation process, it is important to stick to the '''relevant''' facts. Court is not a forum for airing grievances that do not give rise to a claim. For example, in a claim for breach of contract, the fact that the defendant acted rudely is generally not relevant to the claim. Including irrelevant facts confuses the issues, wastes time, raises tensions, and makes it more difficult to successfully prove the claim. A good rule to follow for each type of claim is to include '''only the facts necessary''' to satisfy the legal test for that type of claim; brief is better. | ||
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The provincial government should be named as “Her Majesty the Queen in right of the Province of British Columbia”. (See s 7 of the ''Crown Proceeding Act'', RSBC 1996, c 89). | The provincial government should be named as “Her Majesty the Queen in right of the Province of British Columbia”. (See s 7 of the ''Crown Proceeding Act'', RSBC 1996, c 89). | ||
It should be noted that the CRT cannot resolve disputes where the claim is against the government or the government is a party to the dispute. See Section IV. C.: Civil Resolution Tribunal for more information on the jurisdiction of the CRT. | |||
=== 6. Suing the Police === | === 6. Suing the Police === | ||
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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). | 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). | ||
==== b) Claims | ==== b) Claims between $5000-$35,000 ==== | ||
In order to sue in Small Claims Court for a claim exceeding $ | In order to sue in Small Claims Court for a claim exceeding $35,000, the claimant must state, “The Claimant abandons the portion of any net judgment that exceeds $35,000” (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 $ | There is an exception to the $35,000 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 $35,000 (Rule 7.1(4)). Such claims often have a trial at the same time although the claimant(s) must request this. | ||
==== c) Filing Fees ==== | ==== c) Filing Fees ==== | ||
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. | 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. | ||
Please note that fees for the CRT are different. (See Appendix I: Civil Resolution Tribunal Fees) | |||
==== d) Service Fees ==== | ==== d) Service Fees ==== | ||