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Difference between revisions of "Choosing the Proper Forum for Small Claims (20:IV)"
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Choosing the Proper Forum for Small Claims (20:IV) (view source)
Revision as of 16:41, 4 July 2016
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Desy Wahyuni (talk | contribs) (Created page with "{{LSLAP Manual TOC|expanded = smallclaims}} There are several options for resolving most civil disputes in British Columbia: Alternative Dispute Resolution, specialised tribu...") |
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Certain claims must be made through administrative tribunals instead of the courts. See, for example, [[Foreword on Employment Law (9:I) | Chapter 9: Employment Law]], [[Introduction to Workers%27 Compensation (7:I) | Chapter 7: Workers’ Compensation]], [[Introduction to Employment Insurance (8:I) | Chapter 8: Employment Insurance]], [[Introduction to Landlord and Tenant Law (19:I) | Chapter 19: Landlord and Tenant Law]], and [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]]. | Certain claims must be made through administrative tribunals instead of the courts. See, for example, [[Foreword on Employment Law (9:I) | Chapter 9: Employment Law]], [[Introduction to Workers%27 Compensation (7:I) | Chapter 7: Workers’ Compensation]], [[Introduction to Employment Insurance (8:I) | Chapter 8: Employment Insurance]], [[Introduction to Landlord and Tenant Law (19:I) | Chapter 19: Landlord and Tenant Law]], and [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]]. | ||
In order to bring a claim in British Columbia, the court or tribunal must have territorial jurisdiction. If either the subject matter of the claim (e.g., the contract or wrongful act) occurred in British Columbia or the Defendant resides or does business in British Columbia, this may be a sufficient connection for a court or tribunal to assert jurisdiction. It is sometimes unclear whether British Columbia has a sufficient connection to the claim and is the most appropriate forum. If the | In order to bring a claim in British Columbia, the court or tribunal must have territorial jurisdiction. If either the subject matter of the claim (e.g., the contract or wrongful act) occurred in British Columbia or the Defendant resides or does business in British Columbia, this may be a sufficient connection for a court or tribunal to assert jurisdiction. It is sometimes unclear whether British Columbia has a sufficient connection to the claim and is the most appropriate forum. If the court’s jurisdiction is not clear, a claimant should obtain legal advice and review applicable case law16. | ||
Where the dispute is contractual, the existence of a “forum selection clause” may provide further jurisdictional difficulties. Forum selection clauses require the adjudication of claims in the named jurisdiction. Such clauses will generally be upheld absent a finding of “strong cause” to hear the matter in the jurisdiction of another court17. A.Small Claims Court The Small Claims Court is the civil division of the British Columbia Provincial Court and is designed to accommodate unrepresented parties who do not have legal training. The overriding purpose of the Small Claims Court is to resolve disputes in a “just, speedy, inexpensive, and simple manner. | Where the dispute is contractual, the existence of a “forum selection clause” may provide further jurisdictional difficulties. Forum selection clauses require the adjudication of claims in the named jurisdiction. Such clauses will generally be upheld absent a finding of “strong cause” to hear the matter in the jurisdiction of another court17. | ||
== A. Small Claims Court == | |||
The Small Claims Court is the civil division of the British Columbia Provincial Court and is designed to accommodate unrepresented parties who do not have legal training. The overriding purpose of the Small Claims Court is to resolve disputes in a “just, speedy, inexpensive, and simple manner.”18 The Court uses simplified forms, procedures, and rules and encourages settlement. | |||
Small Claims Court is a formal court that applies the law. Although the procedures and rules of evidence are slightly relaxed in order to make it more accessible to the public, it is significantly more formal and principled than the courts portrayed in television programmes. | |||
There are three primary considerations when choosing Small Claims Court: the amount claimed, the court’s jurisdiction, and costs. | |||
=== 1. Amount Claimed === | |||
'''Small Claims Court can award a judgment of up to $25,000.''' A person whose claim exceeds $25,000 may still choose Small Claims Court but must expressly state in the notice of claim or counterclaim that they will abandon the amount necessary to bring their claim or counterclaim within the court’s jurisdiction19. Interest and costs are not included in calculating the $25,000 limit. | |||
A claimant must sue all responsible parties for damages arising from a single event in '''one''' claim; the claimant cannot split claims for damages arising out of a single event into multiple claims in an attempt to circumvent the $25,000 limit. If, however, there are multiple events giving rise to a claim, even if closely related, they may be brought in separate actions20. For xample, if a contractor issues an invoice for $15,000 at the end of January for work done in January and issues another invoice for $15,000 at the end of February for work done in February and both invoices go unpaid, the contractor may sue on each invoice in a separate claim. Rule 7.1(4) permits certain related claims to be heard together. Where a defendant has pleaded a set-off (the plaintiff owes the defendant money that should be deducted from their award), contributory negligence (the plaintiff’ s negligence also contributed to their loss), or shared liability (there is another party who is also liable fo the same action), the court may consider these defences against the full amount of the claimant’ s claim provided that the net judgment does not exceed $25,000. This also applies when a set-off forms the basis for a standalone counterclaim. For example, if the claimant proves a $50,000 claim and the defendant establishes a $25,000 set-off, the claimant will have a net judgment of $25,000. The SCA21 permits the monetary limit to be set by regulation at any amount up to $50,000. Claimants should confirm the current monetary limit prior to filing a claim. 2.Jurisdiction The Small Claims Court derives its authority from the SCA, the Small Claims Rules, BC Reg 261/93 [SCR], and other acts that expressly confer jurisdiction upon the Provincial Court. The court has express jurisdiction in claims for: debt or damages; recovery of personal property; specific performance of an agreement relating to personal property or services; orrelief from opposing claims to personal property. The court does not have jurisdiction in claims for libel, slander, or malicious prosecution unless such authority is expressly granted in limited circumstances by another statute (e.g., s-s 171(3) of the Business Practices and Consumer Protection Act allows for contraventions of this act to be heard in Provincial Court even if they involve claims for libel or slander22).The court cannot resolve disputes involving residential tenancy agreements nor can it grant remedies created by statute if there is another dispute resolution mechanism prescribed in the statute. For example, claims for overtime must be claimed through the Employment Standards Branch and not in Small Claims Court. The court has very limited jurisdiction in residential tenancy23, employment24, human rights25, and strata property26 matters. Other noteworthy areas of law often falling outside the jurisdiction of the Small Claims Division are divorce, trusts, wills (i.e., probate), prerogative writs, and bankruptcy. However, the court may have jurisdiction over cases where these areas of law are involved only circumstantially – where the pith and substance of the case does fall within the court’ s jurisdiction27. In AMEX Bank of Canada v Golovatcheva, the claimant alleged that the | |||