View source for Court Process in Consumer and Debt Matters

{{REVIEWEDPLS | reviewer = [[Alison Ward]]|date= August 2018}}{{Consumer and Debt Law TOC|expanded = goingcourt}}This section gives an overview of the '''court process''' in consumer and debt matters.

== Client problems ==
* Client asks for help in starting a court action, or, having advised the client that they should take a matter to court, you want to explain the court procedures. 
* Client comes to you with court documents indicating that a legal action has been started against the client. Aside from dealing with the merits of the case, you want to explain the court procedures. 
* Client explains that they cannot afford a lawyer and want you to help in court or at least give some advice about court procedures. 
* Client wants to know how much a legal action is going to cost. 

== Summary of the law==
[[File:Consumer_Law_and_Debt_-_Court_Process_in_Consumer_and_Debt_Matters.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]
It is beyond the scope of this publication to go into detail about court jurisdiction and procedure. There is a large body of statute law, court rules, and case law on this subject. This section gives an overview of the court process, relevant to advising clients. A number of sources of information on court procedures are listed at the end of this section.  

There are two basic aspects to any court case:
* '''Substance''': Refers to the merits of the case — whether the client has a claim against someone else, or, if the client is a defendant, whether there is a defence to a claim made against them. 
* '''Procedure''': Refers to the court processes necessary to resolve the merits of a case. 

Almost all legal actions in British Columbia will be started in either Small Claims Court or Supreme Court. In a very few instances, not covered here, an action may be started in the Federal Court of Canada. Small Claims Court and Supreme Court are commonly called trial courts, because that is where trials of claims are heard. The key resources for understanding the processes in these two courts are the rules prescribed for each: the [http://canlii.ca/t/8571 Small Claims Rules] and the [http://canlii.ca/t/8lld Supreme Court Civil Rules].

=== Jurisdiction===
When starting a legal action, the first consideration is which court it will be launched in — in other words, which court has “'''jurisdiction'''” (the legal right to act in or judge a case) over the matter. Rules often dictate this, but sometimes it is a matter of choice. In most consumer and debt actions, the main factor governing jurisdiction is the dollar amount of the claim.

Here are the main factors to consider for each court.

==== Civil Resolution Tribunal====
* This is an [https://civilresolutionbc.ca/ online system] that encourages a collaborative approach to resolving disputes.  
* Handles most Small Claims actions up to $5,000.  
* Deals with most types of consumer and debt cases (section 3.1(1) of the [http://canlii.ca/t/8qq7 Civil Resolution Tribunal Act]).  
* Does not have jurisdiction in specific types of claims, such as claims for libel, slander, malicious prosecution, or against the government (section 3.1(2) of the ''Civil Resolution Tribunal Act'').  

==== Small Claims Court====
* Has monetary jurisdiction over actions up to $35,000 (excluding costs and interest). Most claims up to $5,000 are dealt with by the Civil Resolution Tribunal.    
* Deals with most types of consumer and debt cases (section 3(1) of the [http://canlii.ca/t/84cs ''Small Claims Act'']). Some causes of action (for example, libel, slander, and malicious prosecution) cannot be brought in this court (section 3(2) of the ''Small Claims Act''). 
* Some statutes specify that an action can be brought in this court. For example, section 171(3) of the [http://canlii.ca/t/84mr ''Business Practices and Consumer Protection Act''] states that certain actions under that Act can be brought in Small Claims Court. 
* Procedures are easier to follow than in the Supreme Court, so the plaintiff (the person making the claim) may not need a lawyer. 

If the amount the client wants to claim is over the $35,000 limit, it may be to their advantage to consider reducing the claim to the maximum allowed to start the action in Small Claims Court, where they may not need a lawyer. Note that if a client pursues this option, they cannot start another action for the difference between the upper limit of the court and the amount owed.

==== Supreme Court====
* Has monetary jurisdiction over any amount of money being claimed. 
* Claims within the monetary jurisdiction of the Small Claims Court may be started here, though there are disadvantages. 
* Procedures are more complicated than in Small Claims Court, so the plaintiff will probably need a lawyer. 
* If the plaintiff uses a lawyer for claims that could have been brought before the Small Claims Court, the plaintiff is almost always barred from claiming compensation for legal fees. 

=== Legal costs===
A client’s immediate concern is usually what chance they have of successfully commencing or defending a legal action. This is an assessment of the merits of the case and includes explaining how much clients will get if they win or how much they will have to pay if they lose a legal action.

'''Legal costs''' are the costs of having a matter resolved in the court system. These costs include fees payable to the court, lawyer fees, and expenses involved in the litigation.

Assessing what the legal costs will be is probably as important as advising clients on the merits of the case. First, clients often have no idea about lawyer fees or court filing fees, or are misinformed about what to expect. Second, legal costs often prove to be a major factor in a client’s decision on how a matter is to be handled.

==== What legal costs include  ====
Clients should understand the range of costs that can be encountered in the legal process, including:
* '''Court fees:''' Court fees are what the government charges for people to use the court system. For example, in Small Claims Court, it costs a claimant $100 to file a Notice of Claim where the claim does not exceed $3,000. 
* '''Disbursements:''' Disbursements are the expenses associated with carrying out the legal process and include having legal documents served, photocopying costs, and fees for expert witnesses to testify at trial. 
* '''Lawyer fees:''' Clients should be clear on what a lawyer is going to charge for taking a case. Most lawyers charge an hourly rate for taking a case to court. They may quote a fee that includes going to trial. (See the section on [[Lawyers’ Fees]].) 

==== Compensation for legal costs====
The law usually allows a successful litigant (a person involved in a legal action) some compensation for their legal costs from the other side. For example, if a party is successful in making or defending a small claims action, the [http://canlii.ca/t/84cs ''Small Claims Act'']  and [http://canlii.ca/t/8571 Small Claims Rules] permit a judge to add to the judgment the successful party’s court fees and expenses that they consider are directly related to the conduct of the lawsuit. As well, the Small Claims Court can order a party or witness whose behaviour causes unnecessary expenses for another party to pay all or part of those expenses. The Small Claims Rules also allow the court to impose a penalty of up to 20% of an offer to settle against a party who refuses a settlement where the judgment of the court is ultimately equal to or less than the amount offered by a defendant, or equal to or more than the amount offered by a plaintiff.

The ''Small Claims Act'' does not allow any recovery of lawyer fees in Small Claims Court actions, regardless of the outcome.

Successful parties in Supreme Court are generally awarded some compensation for their lawyer fees as well as for their court costs and disbursements. The amount of compensation, however, is a complicated issue. Very roughly, a successful litigant can expect to be compensated for one-third to one-half of their overall legal costs, including lawyer fees.

=== Procedural considerations===
The following are some of the basic procedural considerations in a legal action, up to the time of trial.

==== Resolution of the problem====
In the majority of cases, the merits of a legal action are resolved before trial. This may happen because:
* the parties negotiate a settlement at some stage 
* the plaintiff gives up on the case 
* the plaintiff uses certain procedures to get a judgment without going to trial 
* the defendant seeks a remedy (for example, [[Assignments in Bankruptcy|bankruptcy]] or a [[Consumer and Ordinary Proposals|proposal]]) to stop the legal proceeding 

==== Time limits and defaults====
Time limits are crucial in court procedures. There are consequences for exceeding a time limit for doing something. For example, a judgment may be entered against the defendant.

The most important time limits involve filing pleadings, including defence documents. 

In a matter before the Civil Resolution Tribunal, a respondent must provide a Dispute Response Form to the tribunal within 14 days of receiving a Dispute Notice ([https://civilresolutionbc.ca/resources/rules-3/ Civil Resolution Tribunal Rules], Rule 72).

In Small Claims Court, a defendant must file a Reply in the court registry within 14 days after the plaintiff’s Notice of Claim is served on the defendant ([http://canlii.ca/t/8571 Small Claims Rule] 3). 

Under the [http://canlii.ca/t/8lld Supreme Court Civil Rules], a plaintiff files a single document called a Notice of Civil Claim and a defendant must file a Response to Civil Claim. A defendant must file and serve the Response to Civil Claim within 21 days of being served with the Notice.

==== Pre-trial procedures====
There is a significant difference between the number of steps involved in the legal process in Small Claims Court before a trial is held and the number involved in Supreme Court. (As well, for claims under $5,000, the [https://civilresolutionbc.ca/ Civil Resolution Tribunal] offers an avenue for resolving disputes without going to trial.) 

In Small Claims Court, the pre-trial processes are minimal. The main step is a settlement conference. This is an informal hearing where both parties meet with a judge to see if some or all of the substantive and procedural issues can be resolved by agreement instead of going to trial. In many cases, there may also be a formal mediation presided over by a mediator (note that a mediator is not a judge and cannot make a judgment on a case). Such sessions are generally held before the settlement conference. In some cases, a trial conference must be held before the trial. Consult the [http://canlii.ca/t/8571 Small Claims Rules] 7 to 7.5 for details.

In Supreme Court, several pre-trial processes are possible. Here are two of the most important:
* '''Discovery of documents:''' A requirement that each side produce relevant documents for inspection by the other party. 
* '''Examination for discovery:''' Pre-trial questioning of opposing parties by lawyers. 

==== Rules of evidence====
Perhaps the most difficult aspect of court procedures for clients to understand is how evidence is presented at court. Some rules of evidence (guidelines on what type of evidence is allowed) arise in common law, others in statute law, and still others under [http://canlii.ca/t/8571 Small Claims Rules] and [http://canlii.ca/t/8lld Supreme Court Civil Rules].

Small Claims Rules give wider latitude (they are more flexible) in presenting evidence and even specify that a judge may conduct a trial without complying with the formal rules of procedure and evidence (Rule 10(1)).

==== Burden of proof====
The party bringing the action (the plaintiff) is responsible for proving all elements of their case to the judge on a balance of probabilities (which version of the case is more likely).

== Information gathering==
Gather and confirm all information on the financial circumstances of the client, including income and expenses, assets and debts, and future prospects for changes in income.

== Solving the problem==
To advise clients on court processes, you should have current copies of the rules for the Civil Resolution Tribunal, the Small Claims Court and the Supreme Court.

== Related topics and materials==
See the other sections on going to court:
* [[Limitations]] 
* [[Instalment Payment Orders]] 
* [[Foreign Claims and Judgments]] 
* [[Contempt of Court]] 

See related topics:
* [[Assignments in Bankruptcy]] 
* [[Consumer and Ordinary Proposals]] 
* [[Lawyers’ Fees]]  


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