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Difference between revisions of "Do You Have a Small Claim? (20:III)"
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Do You Have a Small Claim? (20:III) (view source)
Revision as of 20:19, 4 August 2021
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{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 4, 2021}} | ||
{{LSLAP Manual TOC|expanded = smallclaims}} | {{LSLAP Manual TOC|expanded = smallclaims}} | ||
In order to have a legal claim, it must be recognised by the law. A frivolous claim is one that does not disclose a legal cause of action, is | In order to have a legal claim, it must be recognised by the law. A frivolous claim is one that does not disclose a legal cause of action, is incapable of proof, or is otherwise bound to fail. A vexatious claim is one that is brought in order to annoy, frustrate, or antagonise the defendant. A claim may be both frivolous and vexatious. | ||
If a claim is frivolous or vexatious, the claimant will lose and may be penalised up to 10% of the amount of the claim (Small Claims Rules, BC Reg 261/93, 20(5) [SCR]). The penalty could be up to $8,750 on a $35,000 claim; it pays to research your cause of action and limit your claim to the proper amount. | |||
== A. Types of Claims & Remedies == | == A. Types of Claims & Remedies == | ||
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=== 1. Tort === | === 1. Tort === | ||
Torts are offences committed by one person against another. Examples include assault, battery, and negligence. Each tort has its own test and defences. Tort law continues to evolve and a person planning to bring a claim in tort should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a | Torts are offences committed by one person against another. Examples include assault, battery, and negligence. Each tort has its own test and defences. Tort law continues to evolve and a person planning to bring a claim in tort should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer. | ||
=== 2. Contract === | === 2. Contract === | ||
Contract law governs voluntary relationships between parties. It is a complicated and nuanced area of the law and a person planning to bring a claim in contract should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a | Contract law governs voluntary relationships between parties. It is a complicated and nuanced area of the law and a person planning to bring a claim in contract should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer. | ||
'''NOTE:''' Courts will generally not enforce illegal contracts or dishonest transactions (See ''[http://canlii.ca/t/1djfx Faraguna v Storoz]'', [1993] BCJ No. 2114). However, ''[http://canlii.ca/t/1gd53 Transport North American Express Inc. v New Solutions Financial Corp.]'', 2004 SCC 7 states that a court may enforce legal portions of a contract, thus effectively severing the illegal portion. A common example involves contracts purporting to charge interest rates prohibited under s 347 of the ''Criminal Code''. The court will not enforce a term in a contract purporting to charge such a rate. (However, section 347.1 exempts payday loans from criminal sanctions, if certain conditions are met; see [[Direct Sales, Future Performance, and Time Share Contracts (11:V)#G. Regulation of Payday Lenders and Criminal Rate of Interest | Section V.G: Regulation of Payday Lenders and Criminal Rate of Interest]] in Chapter 9: Consumer Protection). | '''NOTE:''' Courts will generally not enforce illegal contracts or dishonest transactions (See ''[http://canlii.ca/t/1djfx Faraguna v Storoz]'', [1993] BCJ No. 2114). However, ''[http://canlii.ca/t/1gd53 Transport North American Express Inc. v New Solutions Financial Corp.]'', 2004 SCC 7 states that a court may enforce legal portions of a contract, thus effectively severing the illegal portion. A common example involves contracts purporting to charge interest rates prohibited under s 347 of the ''Criminal Code''. The court will not enforce a term in a contract purporting to charge such a rate. (However, section 347.1 exempts payday loans from criminal sanctions, if certain conditions are met; see [[Direct Sales, Future Performance, and Time Share Contracts (11:V)#G. Regulation of Payday Lenders and Criminal Rate of Interest | Section V.G: Regulation of Payday Lenders and Criminal Rate of Interest]] in Chapter 9: Consumer Protection). | ||
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=== 3. Equity === | === 3. Equity === | ||
The usual remedy for torts and breaches of contract is monetary damages. In circumstances where monetary damages are inadequate or where a legal remedy is improper in the circumstances, the court may grant other relief such as an injunction. The Small Claims Court, pursuant to s 2 of the ''Small Claims Act'' [SCA] (''Small Claims Act'', RSBC 1996, c 430 [SCA]), has a limited inherent jurisdiction to grant equitable remedies. A party seeking an equitable remedy such as an injunction should consult with a lawyer and will likely need to apply to the Supreme Court for relief. | The usual remedy for torts and breaches of contract is monetary damages. In circumstances where monetary damages are inadequate or where a legal remedy is improper in the circumstances, the court may grant other relief such as an injunction. The Small Claims Court, pursuant to s 2 of the ''Small Claims Act'' [SCA] (''Small Claims Act'', RSBC 1996, c 430 [SCA]), has a limited inherent jurisdiction to grant equitable remedies. The Civil Resolution Tribunal, pursuant to s 118 of the ''Civil Resolution Tribunal Act'' [CRTA] (''Civil Resolution Tribunal Act'', SBC 2012, c 25 (CRTA), has the same limited jurisdiction. A party seeking an equitable remedy such as an injunction should consult with a lawyer and will likely need to apply to the Supreme Court for relief. | ||
=== 4. Restitution === | === 4. Restitution === | ||
The law of restitution (See ''[http://canlii.ca/t/1gzjn Garland v Consumers' Gas Co.]'', 2004 SCC 25; ''[http://canlii.ca/t/2fs3h Kerr v Baranow]'', 2011 SCC 10; ''[http://canlii.ca/t/fpm5g Skibinski v Community Living British Columbia]'', 2012 BCCA 17) applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited. The type of claim commonly pursued for a restitution remedy is referred to as “unjust enrichment” and is a complicated and evolving area of the law. A party planning to attain a restitution remedy should consult a lawyer, research what must be proved to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practising lawyer. | The law of restitution (See ''[http://canlii.ca/t/1gzjn Garland v Consumers' Gas Co.]'', 2004 SCC 25; ''[http://canlii.ca/t/2fs3h Kerr v Baranow]'', 2011 SCC 10; ''[http://canlii.ca/t/fpm5g Skibinski v Community Living British Columbia]'', 2012 BCCA 17) applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited ("[http://canlii.ca/t/1gzjn Garland v Consumers' Gas Co.", 2004 SCC 25;" [http://canlii.ca/t/2fs3h Kerr v Baranow", 2011 SCC 10]; ''[http://canlii.ca/t/fpm5g Skibinski v Community Living British Columbia'', 2012 BCCA 17]). The type of claim commonly pursued for a restitution remedy is referred to as “unjust enrichment” and is a complicated and evolving area of the law. A party planning to attain a restitution remedy should consult a lawyer, research what must be proved to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practising lawyer. | ||
=== 5. Statute === | === 5. Statute === | ||
Certain statutes create a right of action that does not exist in the common law. The statute will set out what must be proved, the defences that apply, the types of damages that can be awarded, and how the claim must be brought. A person planning to bring a claim under a statutory | Certain statutes create a right of action that does not exist in the common law. The statute will set out what must be proved, the defences that apply, the types of damages that can be awarded, and how the claim must be brought. A person planning to bring a claim under a statutory cause of action should research the statute as well as how the courts have interpreted it by noting up the applicable provisions. See page 2: “Other Important Statutes”. Resources include CanLII.org, the courthouse library, and a practicing lawyer. | ||
=== 6. Declaratory Relief === | === 6. Declaratory Relief === | ||
Declaratory relief, whereby the court defines the rights of the parties to resolve legal uncertainties, cannot be claimed at the Provincial Court of British Columbia or the CRT. Parties seeking declaratory relief must do so at the BC Supreme Court. | Declaratory relief, whereby the court defines the rights of the parties to resolve legal uncertainties, cannot be claimed at the Provincial Court of British Columbia or the CRT. This includes declarations of who is liable for an accident and then ordering the defendant (often represented by an insurer) to change its liability determination. Parties seeking declaratory relief must do so at the BC Supreme Court (''Supreme Court Civil Rules'', BC Reg 168/2009, 20-4(1)). | ||
== B. Types of Damages == | == B. Types of Damages == | ||
Although the Small Claims Court has the jurisdiction to award $35,000 | Although the Small Claims Court has the jurisdiction to award $35,000, the monetary awards in most cases are significantly less (Small Claims Court Monetary Limit Regulation, BC Reg 179/2005). There must be a principled basis for an award of damages and it is helpful to separate a claim into the following types of damages. Ensuring that there is a legal basis for a claim is a critical step as there are penalties for proceeding through a trial in Small Claims Court on a claim that has no reasonable basis for success (SCR, s 20(5)). | ||
=== 1. General Damages === | === 1. General Damages === | ||