Difference between revisions of "Starting a Lawsuit (No. 165)"
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==If your case goes to trial==
==If your case goes to trial==
Your case may settle before trial. But if not, check script [[Going to Trial in Small Claims Court (Script 168)|168) called “Going to Trial in Small Claims Court”.
Your case may settle before trial. But if not, check script [[Going to Trial in Small Claims Court (Script 168)|168)called “Going to Trial in Small Claims Court”.
==Can you appeal a small claims court judgment?==
==Can you appeal a small claims court judgment?==
Revision as of 16:11, 17 August 2017
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- 1 What is small claims court?
- 2 Before you sue—try to settle the case
- 3 New process for small claims started June 1, 2017
- 4 What are the dollar limits for small claims court?
- 5 What types of claims go to small claims court?
- 6 Other cases that can go to small claims court
- 7 What claims cannot go to small claims court?
- 8 What is a limitation period?
- 9 Where do you sue, or file your notice of claim?
- 10 Where will your case be tried?
- 11 Telling the other side that you are suing—serving the notice of claim
- 12 How much does it cost to go to small claims court?
- 13 If your case goes to trial
- 14 Can you appeal a small claims court judgment?
- 15 Mediation—another option
- 16 Summary
- 17 More information
What is small claims court?
Small claims court is for ordinary people who want to handle their cases with or without a lawyer. The process is simpler and less formal than in BC supreme court.
Before you sue—try to settle the case
This script explains how to sue in small claims court. But before you sue, try to settle the case without going to court. That can save you a lot of time and money. The small claims website starts with this suggestion and explains settlement options. They include using demand letters, online dispute resolution, mediation, arbitration, collection agencies, negotiation, and payment terms.
New process for small claims started June 1, 2017
Starting June 1, 2017, the government made important changes to small claims court. Now, where you sue depends on the amount you seek:
- Claims up to $5,000 go to the Civil Resolution Tribunal
- Claims from $5,001 to $35,000 go to small claims court—this script covers this topic
- Claims over $35,000 go to BC supreme court. More information on these claims is also available on the site for people who represent themselves in supreme court.
What are the dollar limits for small claims court?
Small claims court takes cases only if the value of the claim is between $5001 and $35,000, not including interest and court costs. If your claim is for more than $35,000, you can still sue in small claims court if you give up the extra amount. For example, if someone owes you $37,000, you can sue for $35,000 in small claims court, but you must give up the other $2,000 of your claim.
You may get interest and court costs on top of the $35,000 limit. What interest rate applies can be confusing, depending on the type of claim. If it is not clear to you how to calculate interest, you should see a lawyer or talk to the staff at the nearest small claims court registry.
Once your case has been tried in small claims court, you cannot later sue for the part of the claim you gave up. But if you decide before the trial that you want to sue for the full amount, you can apply to transfer your claim to supreme court. Then you can sue for the entire amount. You can also claim legal costs if your claim is transferred to supreme court and you get a judgment over $35,000. But on the other hand, if you get less than $35,000 in supreme court, you may not get legal costs because you should have sued in small claims court.
What types of claims go to small claims court?
There are two main types of claims:
- for debts—this is usually a specific amount someone owes you for goods or services
- for damages—this is money paid to you for a loss you’ve suffered. It could be for an injury you’ve suffered, or for loss or damage to your personal property, or for some other financial loss such as when someone breaks a contract with you.
Other cases that can go to small claims court
Small claims court also hears other less common cases. For example, you can sue to get back personal property (not land) wrongfully taken from you. Or you can sue for an order that someone complete a contract—to do what they agreed to do. Small claims court can also deal with claims that the Civil Resolution Tribunal will not deal with for some reason. For example, a case may be too complex or beyond the Tribunal’s jurisdiction (or authority). Or a party may have applied to provincial court to be exempt from the Tribunal.
What claims cannot go to small claims court?
You can’t sue in small claims court for defamation (libel, slander—see script 240) or malicious prosecution. You also can’t sue over ownership of land, and you can’t sue the federal government in small claims court. Further, most residential tenancy claims, some claims concerning the estate of someone who has died, and most builders lien actions can’t go to small claims court. And usually, you cannot sue in small claims court for an injunction (to order someone stop doing something). The provincial court website explains what types of cases small claims will—and will not—deal with.
What is a limitation period?
Limitation periods set deadlines for starting to sue someone. Different limitation periods apply to different types of claims. On June 1, 2013, a new Limitation Act became law in British Columbia. Most claims now have a 2-year basic limitation period. In other words, if the cause of action (the event you’re suing about) happened on or after June 1, 2013, the new Limitation Act applies, and you will have 2 years from the day you discovered (knew, or reasonably ought to have known) all the following:
- injury, loss or damage occurred
- it was caused at least partly by an act or omission
- the act or omission was that of the person you’re suing
- court is the right place to seek a remedy
For example, you took your car for repairs but when you got it back you saw that the shop damaged it. The limitation period starts when you realized these things, or when you reasonably ought to have realized them.
If a cause of action happened before June 1, 2013, the old Limitation Act applies. Under it, the claim must be started within 6 years from the time the debt arose, or within 6 years from when the debtor last acknowledged the debt.
The limitation period for suing municipal government is shorter: only 6 months.
If you don’t know what limitation period applies in your case, see a lawyer. If your limitation period expires before you sue, that may be the end of it. It’s best to start your lawsuit as soon as it’s clear that the person or company can’t or won’t pay you what they owe. Don’t delay.
Where do you sue, or file your notice of claim?
You have a choice. You can file a notice of claim (to start your lawsuit) in the small claims court registry that is either nearest to where:
- the person you are suing lives or has a business, or
- the event you’re suing about happened.
For example, say you want to sue a driver for injuries from a car accident. He lives in Surrey, but the accident took place in Vancouver. You can sue in either Surrey or Vancouver.
Where will your case be tried?
A case will be tried in the court where the notice of claim was filed. There is a small claims court in all major cities and most smaller towns in British Columbia. They are listed on the small claims website. Or you can ask Inquiry BC for court locations; call it 604.660.2421 in Vancouver, 250.387.6121 in Victoria or 1.800.663.7867 elsewhere in BC.
Telling the other side that you are suing—serving the notice of claim
You, as the person suing, are the claimant. You must inform the person or company you are suing (the defendant) that you are suing them. That’s called serving them with your notice of claim. And you must do that within one year of filing your claim. The notice of claim form is on the court forms website.
If the defendant lives in BC, you can serve the notice of claim (after you have filed it in court) by giving the defendant a copy of it, and a blank reply form (available from the registry and on the court forms website).
If the defendant lives outside of BC, but the event that led to the lawsuit happened in BC, you can serve your notice by giving the defendant a copy of it. But in any other case, you need permission of the court registrar before you can serve a notice of claim outside BC.
If the defendant is a person over 18 years old, you can serve your notice of claim by giving it to them in person (called personal service) or sending it to their home by registered mail.
If the defendant is a corporation, you can serve the notice by sending it to the corporation’s registered office by registered mail. The address of the registered office is shown on the company search you must do. For partnerships, you must serve one of the partners. For unincorporated businesses, you must serve the owner.
After you serve the notice of claim, you must prove it by completing a certificate of service (Form 4).
Both the BC Ministry of Justice and the small claims rules explain how to serve documents and prove you served them. The small claims website has a checklist for serving documents, and the Law Centre at the University of Victoria has a factsheet.
How much does it cost to go to small claims court?
Because you can go to court yourself and handle your own small claims court trial, you don’t have to pay legal fees to a lawyer. But you must pay various small charges to file your claim, deliver documents to the defendant, and so on.
If your case goes to trial
Your case may settle before trial. But if not, check script 168) called “Going to Trial in Small Claims Court”.
Can you appeal a small claims court judgment?
Yes, you can appeal a small claims court judgment to the BC supreme court, but the appeal must be started within 40 days after the small claims court order was made. If you are late filing the notice of appeal, you can apply to the supreme court to extend the time, but there’s no guarantee that you will get it.
The appeal is not a new trial and the supreme court judge will decide only if the small claims court judge made a mistake about the facts or the law.
The small claims website explains how to appeal and the process and cost involved.
If you want to appeal a small claims court judgment, you should consult a lawyer right away.
You may be able to use mediation for claims between $10,000 and $35,000, instead of suing in court. A neutral third-party tries to help both sides settle the dispute. It’s often faster and cheaper than suing. Small claims rule 7.3 deals with mediation. The mediation process is also explained on this BC government website.
Mediation is an option in all locations, but it’s not always available. For example, it’s not available for cases that can be dealt with under rule 9.2 (a summary trial for financial debt in Vancouver).
Mediation is mandatory only if one party files a notice to mediate or the court orders the parties to use it.
You can sue in small claims court if your claim is between $5,001 and $35,000, though some types of claims aren’t allowed. Typical claims that go to small claims court are for money owed or for damages for personal injury, property loss or breaking a contract. If you want to sue, you should start as soon as possible because there are various deadlines, depending on the type of claim.
- Before you sue, get advice from a lawyer or talk to the small claims court staff for help with procedures.
- Check the small claims website and the provincial court website. Also, the BC government has guides on making a claim, replying to a claim, serving documents, getting ready for court, and getting results.
- Check the other Dial-A-Law scripts in this small claims court series.
[updated August 2017]
The above was last reviewed for accuracy by Anna Kurt and edited by John Blois.
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