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Difference between revisions of "Small Claims Trials (20:XIV)"
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Small Claims Trials (20:XIV) (view source)
Revision as of 18:39, 12 August 2021
, 18:39, 12 August 2021no edit summary
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{{REVIEWED LSLAP | date= August 6, 2021}} | {{REVIEWED LSLAP | date= August 6, 2021}} | ||
{{LSLAP Manual TOC|expanded = smallclaims}} | {{LSLAP Manual TOC|expanded = smallclaims}} | ||
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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 (''SCR'', 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. | 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 (''SCR'', 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 | 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 remember that settlement is possible at any time before the judge decides the case. This includes after evidence and arguments are heard at trial. | ||
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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. | 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 (Form 33) at least 14 days before the trial date and serve each other party at least 7 days before the trial (''SCR'', Rules 9.1(17) and (18)). There are penalties for failing | The parties must each file a Trial Statement (Form 33) at least 14 days before the trial date and serve each other party at least 7 days before the trial (''SCR'', Rules 9.1(17) and (18)). There are penalties for failing to comply with these timelines (''SCR'', Rule 9.1(19)). | ||
The trial does not need to comply with formal rules of procedure and evidence (''SCR'', Rule 9.1(20)). The adjudicator will ask questions and control the proceedings to stay within the one-hour timeframe. | The trial does not need to comply with formal rules of procedure and evidence (''SCR'', Rule 9.1(20)). The adjudicator will ask questions and control the proceedings to stay within the one-hour timeframe. | ||
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=== 3. Check-In Procedure === | === 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 | 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 | 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. | 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 === | === 4. General Order of Proceedings === | ||
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=== 6. Direct Examination === | === 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 | 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 (i.e., 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. | Witnesses can be led on matters that are not in issue (i.e., 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. | ||
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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 ''[http://canlii.ca/t/h6kw6 Browne v Dunn]'' and, if not followed, can result in less weight being placed on a witness’ evidence or the recall of adverse witnesses (''[http://canlii.ca/t/1f0lz Budnark v Sun Life Assurance Co. of Canada]'', 1996 CanLII 1397 (BCCA)). | 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 ''[http://canlii.ca/t/h6kw6 Browne v Dunn]'' and, if not followed, can result in less weight being placed on a witness’ evidence or the recall of adverse witnesses (''[http://canlii.ca/t/1f0lz 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 | 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 | '''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 (''[http://canlii.ca/t/1f6s8 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. | ||
=== 8. Re-Examination === | === 8. Re-Examination === | ||
If new evidence is introduced | 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 (''[http://canlii.ca/t/g945z R v Moore]'',[1984] OJ No. 134; and ''[http://canlii.ca/t/1j0fr Singh v Saragoca]'', 2004 BCSC 1327 (CanLII) at para. 40). During re-examination, leading questions cannot be asked. | ||
=== 9. Closing Arguments === | === 9. Closing Arguments === | ||
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=== 10. Judgment === | === 10. Judgment === | ||
When the evidence, submissions, and closing arguments are finished, the judge must give a decision. The judge may give a decision orally at | 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 (''SCR'', 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 (''SCR'', 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 they | 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 they need time to pay (''SCR'', Rules 11(1) and (2)). If the debtor does not require time to pay, the judgment must be paid immediately (''SCR'', 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 installments (''SCR'', 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 (''SCR'', Rule 11(5)). | ||
If a payment schedule is not ordered, the debt is payable immediately and the creditor is free to start collection proceedings (''SCR,'' Rule 11(7)). | If a payment schedule is not ordered, the debt is payable immediately and the creditor is free to start collection proceedings (''SCR,'' Rule 11(7)). | ||