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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 19:35, 5 August 2021
, 19:35, 5 August 2021no edit summary
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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 court; see [http://canlii.ca/t/1r9xl ''Borgstrom v Korean Air Lines Co. Ltd.'', 2007 BCCA 263]; [http://canlii.ca/t/1std6 ''Procon Mining & Tunnelling Ltd. v McNeil'', 2007 BCCA 438]). However, where a “forum selection clause” requires arbitration that would be practically inaccessible for reasons of cost or geography, a court may declare the clause invalid and adjudicate the claim ([http://canlii.ca/t/j8dvf ''Uber Technologies Inc v Heller'', 2020 SCC 16]). | 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 court; see [http://canlii.ca/t/1r9xl ''Borgstrom v Korean Air Lines Co. Ltd.'', 2007 BCCA 263]; [http://canlii.ca/t/1std6 ''Procon Mining & Tunnelling Ltd. v McNeil'', 2007 BCCA 438]). However, where a “forum selection clause” requires arbitration that would be practically inaccessible for reasons of cost or geography, a court may declare the clause invalid and adjudicate the claim ([http://canlii.ca/t/j8dvf ''Uber Technologies Inc v Heller'', 2020 SCC 16]). | ||
== A. Small Claims Court == | == A. Small Claims Court == | ||
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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” (''SCA'', s 2). The Court uses simplified forms, procedures, and rules and encourages settlement. | 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” (''SCA'', s 2). 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 | 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 programs. | ||
There are three primary considerations when choosing Small Claims Court: the amount claimed, the court’s jurisdiction, and costs. | There are three primary considerations when choosing Small Claims Court: the amount claimed, the court’s jurisdiction, and costs. | ||
=== 1. Amount Claimed === | === 1. Amount Claimed === | ||
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Section 21(2) of the ''Small Claims Act'' 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. | Section 21(2) of the ''Small Claims Act'' 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 === | === 2. Jurisdiction === | ||
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The court has express jurisdiction in claims for: | The court has express jurisdiction in claims for: | ||
*debt or damages; | * debt or damages; | ||
*recovery of personal property; | * recovery of personal property; | ||
*specific performance of an agreement relating to personal property or services; or | * specific performance of an agreement relating to personal property or services; or | ||
*relief from opposing claims to personal property(''SCA'', s 3(1)). | * relief from opposing claims to personal property(''SCA'', s 3(1)). | ||
The Small Claims Court does not have jurisdiction in claims for libel, slander, or malicious prosecution, according to s 3(2) of the SCA, unless such authority is expressly granted in limited circumstances by another statute (e.g., 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 slander). | The Small Claims Court does not have jurisdiction in claims for libel, slander, or malicious prosecution, according to s 3(2) of the SCA, unless such authority is expressly granted in limited circumstances by another statute (e.g., 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 slander). | ||
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The Small Claims Court has no inherent jurisdiction. It cannot grant injunctions or declaratory relief; however, subject to the Small Claims Act and Small Claims Rules, the court may make any order or give any direction necessary to achieve the purpose of these statutes. One should review the ''Small Claims Act'' and ''Small Claims Rules'' thoroughly. See ''LLC v PG'', sub nom. ''Craig v Gidyk'', [1994] BCJ No. 1591 (Prov. Ct.); ''RK v McBride'', [1994] BCJ No. 2791; and [http://canlii.ca/t/fpmf7 ''Joey Beenz Coffee Bar Ltd. v Di Stasio (cob Neon Sign Writers)'', 2011 BCPC 375]. | The Small Claims Court has no inherent jurisdiction. It cannot grant injunctions or declaratory relief; however, subject to the Small Claims Act and Small Claims Rules, the court may make any order or give any direction necessary to achieve the purpose of these statutes. One should review the ''Small Claims Act'' and ''Small Claims Rules'' thoroughly. See ''LLC v PG'', sub nom. ''Craig v Gidyk'', [1994] BCJ No. 1591 (Prov. Ct.); ''RK v McBride'', [1994] BCJ No. 2791; and [http://canlii.ca/t/fpmf7 ''Joey Beenz Coffee Bar Ltd. v Di Stasio (cob Neon Sign Writers)'', 2011 BCPC 375]. | ||
=== 3. Fees === | === 3. Fees === | ||
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* are against the government, or which the government is a party to the dispute (Note: municipalities do not fall within “government” in this context; ''CRTA'', s 119(b)); or | * are against the government, or which the government is a party to the dispute (Note: municipalities do not fall within “government” in this context; ''CRTA'', s 119(b)); or | ||
* involve the application of the ''Canadian Charter of Rights and Freedoms''. Note: the CRT does not have jurisdiction over a question of a conflict between the ''Human Rights Code'' and another enactment. The CRT also does not have jurisdiction over constitutional questions (''CRTA'', s 114). | * involve the application of the ''Canadian Charter of Rights and Freedoms''. Note: the CRT does not have jurisdiction over a question of a conflict between the ''Human Rights Code'' and another enactment. The CRT also does not have jurisdiction over constitutional questions (''CRTA'', s 114). | ||
==== b) Strata Property Matters ==== | ==== b) Strata Property Matters ==== | ||
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The foregoing list contains a number of limitations. A person considering tribunal resolution of a claim listed above should review s 122 of the ''Civil Resolution Tribunal Act'' to ensure that a limitation does not deny jurisdiction to the tribunal. | The foregoing list contains a number of limitations. A person considering tribunal resolution of a claim listed above should review s 122 of the ''Civil Resolution Tribunal Act'' to ensure that a limitation does not deny jurisdiction to the tribunal. | ||
==== c) Motor Vehicle Injury Matters ==== | ==== c) Motor Vehicle Injury Matters ==== | ||
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For accidents May 1, 2021, and after, the CRT has jurisdiction over entitlement to benefits under the new Enhanced Care model; see [https://civilresolutionbc.ca/british-columbias-motor-vehicle-accident-enhanced-care-insurance/ https://civilresolutionbc.ca/british-columbias-motor-vehicle-accident-enhanced-care-insurance]/. | For accidents May 1, 2021, and after, the CRT has jurisdiction over entitlement to benefits under the new Enhanced Care model; see [https://civilresolutionbc.ca/british-columbias-motor-vehicle-accident-enhanced-care-insurance/ https://civilresolutionbc.ca/british-columbias-motor-vehicle-accident-enhanced-care-insurance]/. | ||
==== d) Societies and Cooperative Associations ==== | ==== d) Societies and Cooperative Associations ==== | ||
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As per Societies, the foregoing list contains a number of limitations; see s 126 of the ''Civil Resolution Tribunal Act''. For example, claims cannot be made with respect to any matter relating to terminating membership, expelling members, winding up the cooperative association, or appealing decisions made by the Registrar of Companies. | As per Societies, the foregoing list contains a number of limitations; see s 126 of the ''Civil Resolution Tribunal Act''. For example, claims cannot be made with respect to any matter relating to terminating membership, expelling members, winding up the cooperative association, or appealing decisions made by the Registrar of Companies. | ||
=== 2. Process === | === 2. Process === | ||
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* 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 | * 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 (''Administrative Tribunals Act'', SBC 2004, c 45, s 58(2)). | * natural justice and procedural fairness which are considered with the tribunal’s mandate in mind (''Administrative Tribunals Act'', SBC 2004, c 45, s 58(2)). | ||
=== 3. General === | === 3. General === | ||
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The CRT orders are enforceable as an order of the court unless a party makes a notice of objection under s 56.1 of the ''Civil Resolution Tribunal Act''. | The CRT orders are enforceable as an order of the court unless a party makes a notice of objection under s 56.1 of the ''Civil Resolution Tribunal Act''. | ||
== D. Alternative Dispute Resolution == | == D. Alternative Dispute Resolution == | ||