5,109
edits
Difference between revisions of "Responding to a Small Claim (20:VI)"
Jump to navigation
Jump to search
Responding to a Small Claim (20:VI) (view source)
Revision as of 20:18, 12 August 2022
, 20:18, 12 August 2022no edit summary
Desy Wahyuni (talk | contribs) |
|||
| Line 1: | Line 1: | ||
{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 12, 2022}} | ||
{{LSLAP Manual TOC|expanded = smallclaims}} | {{LSLAP Manual TOC|expanded = smallclaims}} | ||
If a party is responding to a claim over $5,000, proceed to '''Section VI.B.: Possible Strategies'''. | If a party is responding to a claim over $5,000, proceed to '''Section VI.B.: Possible Strategies'''. | ||
| Line 5: | Line 5: | ||
== A. Civil Resolution Tribunal == | == A. Civil Resolution Tribunal == | ||
A respondent who receives a Dispute Notice must within 14 days of receiving it (or if notice was provided outside British Columbia within 30 days) complete a Dispute Response Form | A respondent who receives a Dispute Notice must within 14 days of receiving it (or if notice was provided outside British Columbia within 30 days) complete a Dispute Response Form and provide the Dispute Response Form to the tribunal. CRT forms can be accessed on their website at https://civilresolutionbc.ca/resources/forms/. | ||
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. However, if there are multiple respondents and only one respondent is in default, the entire dispute is assigned to a tribunal member, unless it is otherwise settled in the facilitation process. See [[Small_Claims_Default_Order_(20:VII)|Section VII: Default Order]] for more information | 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. However, if there are multiple respondents and only one respondent is in default, the entire dispute is assigned to a tribunal member, unless it is otherwise settled in the facilitation process. See [[Small_Claims_Default_Order_(20:VII)|Section VII: Default Order]] for more information | ||
However, if a respondent requires more time to respond, they can request an extension from the tribunal before the deadline to respond (''CRTR'', Rule 3.1(2)). | However, if a respondent requires more time to respond, they can request an extension from the tribunal before the deadline to respond (''CRTR'', Rule 3.1(2)). | ||
== B. Possible Strategies == | == B. Possible Strategies == | ||
| Line 33: | Line 31: | ||
When considering this option, a defendant should be aware of other possible problems aside from the lawsuit. For example, if the claimant has placed derogatory information on the defendant’s credit file, the defendant should ask the claimant to remove this negative information as part of the settlement. If the claimant is unwilling to remove the information, the defendant may still settle the claim but may find it difficult or impossible to remove the information from the credit file. The process for removing incorrect information from a person’s credit file is outside the scope of this guide. | When considering this option, a defendant should be aware of other possible problems aside from the lawsuit. For example, if the claimant has placed derogatory information on the defendant’s credit file, the defendant should ask the claimant to remove this negative information as part of the settlement. If the claimant is unwilling to remove the information, the defendant may still settle the claim but may find it difficult or impossible to remove the information from the credit file. The process for removing incorrect information from a person’s credit file is outside the scope of this guide. | ||
In Small Claims Court, if the entire claim is admitted but the defendant requires time to pay or only part of a claim is admitted (''SCR'', Rule 3(1)(b) or (c)), the defendant must file a reply form but may also propose a payment schedule for what is admitted. The payment schedule must detail how the amount will be paid back. The Registrar can order the proposed payment schedule if the claimant consents to it (''SCR'', Rule 11(10)(b)). If the claimant does not consent to the proposal or no payment schedule is proposed, the claimant may summon the defendant to a payment hearing (see '''Section XVI: Enforcing a Judgment'''). Similarly, at the CRT the defendant may file a response admitting the claim which the applicant can enforce through Small Claims Court. | |||
=== 4. Option to Oppose all or Part === | === 4. Option to Oppose all or Part === | ||
| Line 45: | Line 43: | ||
If the defendant wants the court to order something other than a dismissal of the claimant’s claim, the defendant will need a counterclaim. A counterclaim means that, in addition to the defendant disputing the claim, the defendant seeks to sue the claimant. A defendant may file a counterclaim whether they agree or disagree with all or a part of the claim (''SCR'', Rule 4(1)). Counterclaims are claims filed by the defendant against the applicant; they are generally based on the same underlying facts as the applicant’s claim. A defendant who wishes to counterclaim should review '''Section III: Do You Have a Claim?''' and '''Section IV: Choosing the Proper Forum'''. A counterclaim is essentially a Notice of Claim but in a different form. A counterclaim must have a legal basis; there are penalties for proceeding to trial if there is no reasonable basis for success (''SCR'', Rule 20(5)). | If the defendant wants the court to order something other than a dismissal of the claimant’s claim, the defendant will need a counterclaim. A counterclaim means that, in addition to the defendant disputing the claim, the defendant seeks to sue the claimant. A defendant may file a counterclaim whether they agree or disagree with all or a part of the claim (''SCR'', Rule 4(1)). Counterclaims are claims filed by the defendant against the applicant; they are generally based on the same underlying facts as the applicant’s claim. A defendant who wishes to counterclaim should review '''Section III: Do You Have a Claim?''' and '''Section IV: Choosing the Proper Forum'''. A counterclaim is essentially a Notice of Claim but in a different form. A counterclaim must have a legal basis; there are penalties for proceeding to trial if there is no reasonable basis for success (''SCR'', Rule 20(5)). | ||
Although a defendant can start a separate claim either in Small Claims Court or another forum instead of counterclaiming, if the parties and witnesses are the same and the claim falls within the Small Claims Court jurisdiction, it is preferable that the defendant file a counterclaim so that both matters are heard together. If the defendant has commenced an action in a different forum, this should be mentioned in the Reply (see https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/small-claims/scl002.pdf | Although a defendant can start a separate claim either in Small Claims Court or another forum instead of counterclaiming, if the parties and witnesses are the same and the claim falls within the Small Claims Court jurisdiction, it is preferable that the defendant file a counterclaim so that both matters are heard together. If the defendant has commenced an action in a different forum, this should be mentioned in the Reply (see https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/small-claims/scl002.pdf) | ||
A counterclaim is made on the Reply form by following the instructions and paying the required fee. The fee for a counterclaim is the same as the fee for a Notice of Claim and is eligible for a fee waiver. For more information about making a counterclaim, refer to Guide #2 - Making a claim for proceedings initiated in small claims court (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim) and Guide #3 - Making a claim for proceedings previously initiated before Civil Resolution Tribunal (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim-crt). | A counterclaim is made on the Reply form by following the instructions and paying the required fee. The fee for a counterclaim is the same as the fee for a Notice of Claim and is eligible for a fee waiver. For more information about making a counterclaim, refer to Guide #2 - Making a claim for proceedings initiated in small claims court (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim) and Guide #3 - Making a claim for proceedings previously initiated before Civil Resolution Tribunal (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim-crt). | ||
The relationship between a counterclaim and a set-off should be noted | The relationship between a counterclaim and a set-off should be noted. A counterclaim is a standalone claim and it is possible for a defendant to succeed on a counterclaim even when the claimant has been unsuccessful on the primary claim. A set-off, on the other hand, is a defence. If the defendant is successful, a set-off will reduce the amount payable to the claimant. In other words, the amount that the defendant claims the claimant owes them is subtracted from any damages claimed by the claimant. If the claimant is unsuccessful, the set-off defence does not apply; the defendant is not awarded the amount of the set-off. For more information about set-offs see: [''https://canlii.ca/t/27vgj Jamieson v. Loureiro'', 2010 BCCA 52]. | ||
==== a) Filing and Service ==== | ==== a) Filing and Service ==== | ||
| Line 92: | Line 90: | ||
==== c) Adding a Third Party through the Civil Resolution Tribunal ==== | ==== c) Adding a Third Party through the Civil Resolution Tribunal ==== | ||
A respondent who believes another person is responsible for a claim can request resolution of the claim against that other person, often referred to as a “third party claim” by: | |||
*indicating in a completed Dispute Response Form that the respondent will apply for dispute resolution against the other person, | *indicating in a completed Dispute Response Form that the respondent will apply for dispute resolution against the other person, | ||
*completing an Additional Claim Form identifying the other person and describing any claims against that person, | *completing an Additional Claim Form identifying the other person and describing any claims against that person, | ||
| Line 150: | Line 148: | ||
==== h) Mitigation ==== | ==== h) Mitigation ==== | ||
A claimant who alleges to have suffered harm has a duty to take reasonable actions to minimize their losses. This applies, for instance, if the claimant was injured in a personal injury matter or if the claimant suffered harm from a breach of contract. The defendant bears the onus of proving on a balance of probabilities that the claimant did not mitigate their losses. If it is found that the claimant did not take reasonable steps to minimize their losses, such as seeking medical care to assist with their injuries in a personal injury action, then the damages payable to the claimant may be reduced. | A claimant who alleges to have suffered harm has a duty to take reasonable actions to minimize their losses. This applies, for instance, if the claimant was injured in a personal injury matter or if the claimant suffered harm from a breach of contract. The defendant bears the onus of proving on a balance of probabilities that the claimant did not mitigate their losses. If it is found that the claimant did not take reasonable steps to minimize their losses, such as seeking medical care to assist with their injuries in a personal injury action, then the damages payable to the claimant may be reduced. | ||
== E. Filing a Reply == | == E. Filing a Reply == | ||