Difference between revisions of "Choosing the Proper Forum for Small Claims (20:IV)"

The cost to file a claim depends on the amount being claimed. The filing fee is $100 for claims of $3,000 or less and $156 for claims over $3,000. All Small Claims Court fees are listed in Schedule A of the SCR.  

If a person is unable to afford the court’s fees, they can file an Application to the Registrar (Form 16) together with a Statement of Finances.   If accepted, the party will be exempted under Rule 20(1) from paying fees with respect to that court file.  

An unsuccessful litigant must, unless a judge or registrar orders otherwise, pay to the successful party:  

Under no circumstances can any party recover any fees paid to a lawyer with respect to the proceeding: s. 19(4) of the SCA; however, reasonable disbursements charged by a lawyer with respect to the proceeding may be awarded to the successful party.

The Supreme Court has a broad jurisdiction. It is not bound by any monetary limits and there are few restrictions on the types of claims that it can hear. The Supreme Court can grant injunctions, conduct judicial reviews, and make new law. The Supreme Court is not designed for lay litigants. Parties without legal training or legal advice may find it much more difficult to navigate than Small Claims Court. There are,  however, a number of resources ([[Governing Legislation and Resources for Small Claims (20:II)#4. Other Resources | II.4. Other Resources]]) to help lay litigants bring and defend claims in Supreme Court. The court fees in Supreme Court are higher than in Small Claims Court; they can be waived, however, for those who cannot afford them. In Supreme Court, the losing party will often be ordered to pay to the successful party a portion of that party’s reasonable legal costs. Costs are awarded using a tariff system and generally on a party and party basis that usually amounts to about twenty percent of the successful party’s costs. While it is possible for the successful party to be fully indemnified through an award of special costs, also known as solicitor-client costs, this is rare and should not be expected.

The Civil Resolution Tribunal (CRT) is designed to be an alternative to Small Claims Court. The role of the Civil Resolution Tribunal is to encourage the resolution of disputes by agreement between the parties, and if resolution by agreement is not reached, then to resolve the dispute by deciding the claims brought to the tribunal by the parties. The Civil Resolution Tribunal Act [CRTA] and Civil Resolution Tribunal Amendment Act [CRTAA] set out the general process and jurisdiction.  

For up to date information on the Civil Resolution Tribunal, associated legislative changes, and the official rules, please visit their website at https://www.civilresolutionbc.ca/.  

=== 1. Jurisdiction ===

The CRT has jurisdiction over small claims disputes up to $5000, strata property matters, disputes about motor vehicle accidents and injuries, and disputes involving societies and co-operative associations.  The tribunal will not determine if they have jurisdiction over disputes until an application for dispute resolution is submitted and the required fee paid. While jurisdictional issues are screened at the intake stage, a tribunal member retains discretion to determine whether the dispute is within the tribunal’s jurisdiction. Applicants who want to know if their claim is within the tribunal’s jurisdiction before filing a dispute, may try using the CRT’s Solution Explorer or may need to seek legal advice.  

Sometimes, disputes may be “hybrids” in that they include strata, co-operative, motor vehicle injury and/or small claims elements. In general, where a dispute has elements of both a small claim or another type of claim (most commonly strata), the CRT will not consider it a small claim. Applicants should consult the CRT to determine whether two separate applications should be made.

==== a) Small Claims Matters ====

The tribunal’s small claims jurisdiction is similar to that of the Small Claims Court, however while the Small Claims Court can resolve claims between $5,001 and $35,000, the CRT is limited in jurisdiction to resolving small claims disputes of $5,000 or under. If a claim is over $5,000 in total value, it may be reduced to $5,000 or less in order to make an application for dispute resolution at the CRT but this requires abandoning the amount that is over $5,000. This means that part of the claim is gone and can no longer be claimed at the CRT or anywhere else.

The CRT can resolve a wide variety of disputes between owners and tenants of strata properties and strata corporations, but can only help with disputes where the event triggering the dispute happened in BC. Unlike the Small Claims jurisdiction of the CRT, the Strata Property jurisdiction of the CRT has no monetary limit. A person may make a request for tribunal resolution of a claim that concerns:  

*the interpretation or application of the ''Strata Property Act'' or a regulation, bylaw, or rule under that Act;  

*the common property or common assets of the strata corporation;  

*the use or enjoyment of a strata lot;  

*unfair, arbitrary or non-enforcement of strata bylaws, such as noise, pets, parking, rentals;

*money owing, including money owing as a fine, under the ''Strata Property Act'' or a regulation, bylaw or rule under that Act

*financial responsibility for repairs;

*an action or threatened action by the strata corporation, including the council, in relation to an owner or tenant;  

*a decision of the strata corporation, including the council, in relation to an owner or tenant; or  

*the exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.  

The CRT can resolve certain motor vehicle injury disputes stemming from motor vehicle accidents that occurred within BC on or after April 1st, 2019. Damages of up to $50,000 of total damages can be awarded; however, if the CRT determines that the injury is a “minor injury,” then damages for pain and suffering are limited to: $5,500 for accidents that occurred between April 1st, 2019, and March 31st, 2020; and, $5,627 for accidents that occurred between April 1st, 2020, and March 31st, 2021. For accidents that happened before April 1st, 2019, it may still be possible to apply for dispute resolution if the claim falls under the CRT’s small claims jurisdiction, although claims will be capped at $5,000. A person may make a request for tribunal resolution of a claim that concerns:

*whether a party should receive benefits, a party’s benefits should continue, and if the benefits should be started again after being cut off for motor vehicle accidents that occurred within Canada or the USA;

*“minor injury” determinations;

*compensation for types of damage including: pain and suffering, past and/or future income loss, future care costs, out-of-pocket expenses, and property damage to a party’s vehicle and its contents;

*accident fault determinations (this will automatically be done for damages claims). The CRT is not bound by fault determinations made by an insurer.

The CRT can adjudicate disputes about BC societies that are incorporated with the BC Corporate Registry along with housing and community service cooperative associations. Disputes involving other types of cooperatives, unincorporated societies, societies incorporated outside of BC, and “for-profit” societies are outside of the CRT’s jurisdiction. A person may make a request for tribunal resolution of a claim that concerns:

*the interpretation or application of the BC Societies Act or a regulation, constitution or bylaw under that Act, including a request to inspect, or to receive a copy of, a record of a society;

*an action or threatened action by the society or its directors in relation to a member;

*a decision of the society or its directors in relation to a member.

The foregoing list contains a number of limitations. A person considering tribunal resolution of a claim listed above should review s 130 of the Civil Resolution Tribunal Act to ensure that a limitation does not deny jurisdiction to the tribunal.

Using the tribunal to resolve a dispute within its jurisdiction is mandatory by default. However, a party may apply for an exemption under the Civil Resolution Tribunal Act. Furthermore, if the tribunal refuses to resolve a dispute, the courts can hear that dispute. The tribunal is designed to be more informal, faster, and less expensive than Small Claims Court, and will be conducted primarily using the internet and email. Unlike Small Claims Court, the tribunal generally requires the parties to be self-represented; lawyers are generally not permitted (CRTA, s 20). There are exceptions to this, including where a party is a minor or has impaired capacity, where the rules permit the party to be represented or where the tribunal permits representation because it is in the interests of justice and fairness. If a party wishes to request a representative, they should contact the CRT directly to obtain a Representation Request Form.

'''NOTE:''' Parties may obtain legal assistance and/or advice without submitting a Form, however their lawyer will not be able to participate directly in the CRT process.  

For a tribunal small claim, if a party is unhappy with the tribunal decision, they will be able to file a notice of objection and bring the small claim as a claim in the Provincial Court (''Bill 19, Civil Resolution Tribunal Amendment Act'', 2015, 4th Sess, 40th Parl, British Columbia, 2015 (assented to May 14th, 2015) s 27).  A party who is dissatisfied with the ruling on a matter can only seek limited judicial review in the Supreme Court of British Columbia. The standard of review is correctness unless the decision relates to:

*findings of fact for which the finding must either be unreasonable or made without any evidence to support it;

*discretionary decisions for which the decision must be arbitrary, made in bad faith, be based entirely or predominantly on irrelevant factors, or fail to comply with a statute; or

*natural justice and procedural fairness which are considered with the tribunal’s mandate in mind.

Once the tribunal has accepted the request for tribunal resolution and issued a Dispute Notice, a party may not bring or continue a claim in court more than 28 days after one of the following applicable dates (CRTA, 2 13.2):  

*the tribunal notifies the parties of its refusal to facilitate the settlement of, resolve, or adjudicate the claim;

*the date the tribunal certifies that case management is completed, unless the claim has been referred to a hearing under section 30;

*the date a party files a notice of objection; or

*the date the time for filing a notice of objection expires.

Parties who wish to preserve their relationship, avoid the stress of trial, keep the details of their dispute private, or resolve their dispute in months instead of more than a year should seriously consider alternative dispute resolution.

Negotiation is cost and risk free. Any contact between the parties should be used to attempt to negotiate a settlement. Parties can negotiate a settlement at any point before a judgment is pronounced. Negotiations are without prejudice, which means they are confidential between the parties and cannot be used against a party in court. Any documentation related to negotiation should have the words “WITHOUT PREJUDICE” written across the top.  

Ask the other party if he or she is represented by a lawyer. If so, all communication should be with the lawyer. If the other party is not represented, ask the other party if he or she is willing to discuss the claim.  

If a settlement is reached, a letter should be sent to the other party to confirm the agreement. Enclose a duplicate copy for the appropriate party to sign and return to you. Any settlement should include a mutual release agreement in which both parties agree to not bring any further claims against each other and to withdraw any other proceedings that may have been commenced.  

'''NOTE:''' If there are multiple defendants, a claimant should obtain legal advice to ensure that an agreement with one defendant does not inadvertently release the other defendants from liability.

Mediation is a voluntary process in which an independent, neutral party listens to each party’s position, focuses the issues in dispute, and assists the parties to come to a settlement agreement. While the mediator plays an active role in ensuring discussion remains productive, the ultimate responsibility for resolving the dispute rests with the parties. The purpose of mediation is not to determine who wins and loses, but to find solutions that meet the needs of the people involved.  

Mediation as an alternative to litigation is often a more expedient, less expensive, and more satisfactory route than litigation. In order to mediate outside of the Small Claims Court process, all parties must agree. The parties typically share the cost of mediation.  

The Civil Resolution Tribunal’s facilitation process is essentially a mediation. In fulfilling its mandate, the role of the Civil Resolution Tribunal is “to encourage the resolution of disputes by agreement between the parties” (CRTA, s 2(3)) before resolving the dispute by deciding the claims brought to the tribunal. The tribunal’s mandate is to provide dispute resolution services in a manner that is accessible, speedy, economical, informal and flexible (CRTA, s 2(2)).  

The Small Claims Court requires that parties participate in either a settlement conference or mediation. Both processes are highly successful in resolving disputes and there is no additional cost to either party. For information on these processes, see the  [http://www.ag.gov.bc.ca/courts/small_claims/info/guides.htm Small Claims Procedural Guides].   

Parties who choose to mediate outside of the Small Claims Court process can [http://www.mediatebc.com/Find-a-Mediator.asp choose their mediator], resolve the dispute sooner and on a more convenient timeline, and spend more time resolving the dispute than the approximately 2.5  hours allocated by the court. Also, since both parties would have agreed to mediate, settlement is more likely than if mediation is compulsory.  

Arbitration is a voluntary process in which an independent, neutral party will listen to each party’s position and resolve the conflict by choosing one of the party’s positions. If the arbitrator’s decision is binding, the dispute is settled. If the arbitrator’s decision is non-binding, the parties may accept it or proceed to litigation. Arbitration can offer a very quick resolution to disputes and encourages both parties to present reasonable offers in order to increase the likelihood that their proposal will be selected. In order to arbitrate, all parties must agree. The parties typically share the cost of arbitration. The Small Claims Court does not require or provide arbitration; parties who wish to arbitrate must do so on their own. (See [http://www.bcami.com British Columbia Arbitration and Mediation Institute]).