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Difference between revisions of "Small Claims Default Order (20:VII)"
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Small Claims Default Order (20:VII) (view source)
Revision as of 02:30, 17 August 2020
, 02:30, 17 August 2020no edit summary
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== A. Civil Resolution Tribunal == | == A. Civil Resolution Tribunal == | ||
A party named as a respondent to a dispute who fails to respond to a properly delivered Dispute Notice by the date shown on the notice is in default. If every respondent is in default, an applicant may request a default decision and order from the tribunal by: | A party named as a respondent to a dispute who fails to respond to a properly delivered Dispute Notice by the date shown on the notice is in default. If every respondent is in default, an applicant may request a default decision and order from the tribunal by: | ||
*providing a completed Request for Default Decision and Order form together with supporting evidence of dispute-related expenses and the value of non-debt claims, | |||
*if the applicant served the Dispute Notice, providing a completed Proof of Notice Form, and | |||
*paying the required fee to request a default decision and order. | |||
However, an applicant must request a default decision within 21 days of being requested to do so, or the tribunal may dismiss or refuse to resolve the application. | |||
=== 1. Requesting Cancellation of a Default Order | |||
A party may request the cancellation of a default order by | |||
a) completing and submitting the Request for Cancellation of Final Decision or Dismissal Form, | |||
b) providing a completed Dispute Response Form if one has not already been provided to the tribunal, | |||
c) providing evidence to support their request, | |||
d) paying the required fee, and | |||
e) following any other directions provided by the tribunal. | |||
The tribunal will consider whether the reason for default was beyond the control of the party making the request (illness, accident, etc.), whether the party was acting in good faith, the evidence the party submits, and whether the Dispute Response Form shows a defence worth investigating (See [[Responding_to_a_Small_Claim_(20:VI)|Section VI.D: Defences]]). | |||
== B. Small Claims Court == | == B. Small Claims Court == | ||
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To apply for a default order, the claimant must file Form 5 and pay a $25.00 fee. A certificate of service (Form 4) confirming service of the Notice of Claim and blank Reply form must also be in the file (Rule 6(3)). The claimant can ask the court to add the $25.00 fee plus reasonable expenses to the amount of the default judgment. | To apply for a default order, the claimant must file Form 5 and pay a $25.00 fee. A certificate of service (Form 4) confirming service of the Notice of Claim and blank Reply form must also be in the file (Rule 6(3)). The claimant can ask the court to add the $25.00 fee plus reasonable expenses to the amount of the default judgment. | ||
If the claim is for a specific amount of debt, the registrar will grant a default order for the amount claimed plus expenses and interest (Rule 6(4)). If the claim is for anything other than a specific amount of debt, the registrar will schedule a hearing before a judge (Rule 6(5)). Once a hearing has been set, the defendant cannot file a Reply without a judge’s permission (Rule 6(8)). If another defendant to the claim has filed a Reply and a date has been set for either a settlement conference, trial conference, or trial, the hearing will be held on that date (Rule 6(6)). A defendant is not entitled to notice of the hearing date (Rule 6(7)). | If the claim is for a specific amount of debt, the registrar will grant a default order for the amount claimed plus expenses and interest (Rule 6(4)). If the claim is for anything other than a specific amount of debt, the registrar will schedule a hearing before a judge (Rule 6(5)). Once a hearing has been set, the defendant cannot file a Reply without a judge’s permission (Rule 6(8)). If another defendant to the claim has filed a Reply and a date has been set for either a settlement conference, trial conference, or trial, the hearing will be held on that date (Rule 6(6)). A defendant who has not filed a reply is not entitled to notice of the hearing date (Rule 6(7)). | ||
At a hearing, a default order is not automatic. The claimant must give evidence and produce documents to prove the amount owing as well as convince the court that the default order should be granted (Rule 6(9)). | At a hearing, a default order is not automatic. The claimant must give evidence and produce documents to prove the amount owing as well as convince the court that the default order should be granted (Rule 6(9)). | ||
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=== 2. Setting Aside Default Orders and Reinstating Claims === | === 2. Setting Aside Default Orders and Reinstating Claims === | ||
If a party obtains a default order or a hearing for assessment of damages is scheduled, the party in default can apply to a judge to set aside the default order (Rules 16(6)(j) and 17(2)) and file a Reply (Rule 16(6)(d)). The party in default must file the application as soon as possible upon learning of the default order and attach to the application an affidavit containing (See Rule 17(2)(b); ''Miracle Feeds v D. & H. Enterprises Ltd.'' (1979), 10 BCLR 58 (Co. Ct.) [''Miracle Feeds'']): | If a party obtains a default order or a hearing for assessment of damages is scheduled, the party in default can apply to a judge to set aside the default order (Rules 16(6)(j) and 17(2)) and file a Reply (Rule 16(6)(d)). The party in default must file the application as soon as possible upon learning of the default order and attach to the application an affidavit containing (See Rule 17(2)(b); ''Miracle Feeds v D. & H. Enterprises Ltd.'' (1979), 10 BCLR 58 (Co. Ct.) [''Miracle Feeds'']; ''[http://canlii.ca/t/gk0z0 Nichol v Nichol]'', 2015 BCCA 278): | ||
*a reasonable explanation for not filing a Reply (or failing to attend a mediation session, trial conference, or trial); | *a reasonable explanation for not filing a Reply (or failing to attend a mediation session, trial conference, or trial); | ||
*a reasonable explanation of any delay in filing the application; | *a reasonable explanation of any delay in filing the application; | ||
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*if there has been a delay in applying to set aside the default order, an explanation for the delay; and | *if there has been a delay in applying to set aside the default order, an explanation for the delay; and | ||
*if the party in default is the defendant, there is a defence that is not bound to fail. | *if the party in default is the defendant, there is a defence that is not bound to fail. | ||
(See ''Miracle Feeds''; ''Hubbard v Acheson'', 2008 BCSC 970 (CanLII); ''McEvoy v McEachnie'', 2008 BCSC 1273 (CanLII); ''Anderson v T.D. Bank'', 1986 CanLII 897 (BC CA); ''Doyle v Lunny Design and Production Group Inc.'', 2009 BCSC 925 (CanLII); and ''Innovest Development Corp. (Receiver of) v Lim'', 1999 CanLII 5356 (BCSC)) | (See ''Miracle Feeds''; ''[http://canlii.ca/t/1zt5x Hubbard v Acheson]'', 2008 BCSC 970 (CanLII); ''[http://canlii.ca/t/20rz1 McEvoy v McEachnie]'', 2008 BCSC 1273 (CanLII); ''[http://canlii.ca/t/213m6 Anderson v T.D. Bank]'', 1986 CanLII 897 (BC CA); ''[http://canlii.ca/t/24c11 Doyle v Lunny Design and Production Group Inc.]'', 2009 BCSC 925 (CanLII); and ''[http://canlii.ca/t/1d43b Innovest Development Corp. (Receiver of) v Lim]'', 1999 CanLII 5356 (BCSC)) | ||
Where the party in default is a defendant who has not filed a Reply, the defendant should also bring copies of the Reply and be prepared to file them immediately if the judge grants permission. | Where the party in default is a defendant who has not filed a Reply, the defendant should also bring copies of the Reply and be prepared to file them immediately if the judge grants permission. | ||
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If the default order is cancelled, the party who obtained it may ask the court to award reasonable expenses that relate to the cancellation. These expenses may include the cost of filing the application for default order, significant travelling expenses, and lost wages that were incurred only as a result of the cancellation. | If the default order is cancelled, the party who obtained it may ask the court to award reasonable expenses that relate to the cancellation. These expenses may include the cost of filing the application for default order, significant travelling expenses, and lost wages that were incurred only as a result of the cancellation. | ||
{{REVIEWED LSLAP | date= August 16, 2020}} | |||
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