Being Sued in Small Claims Court

I will discuss being sued in Small Claims Court.

Don’t ignore a Notice of Claim

If you receive a Notice of Claim from Small Claims Court showing you as a “defendant,” this means that some other person, called the “claimant,” is suing you.

A Notice of Claim may be handed to you personally by the claimant or any adult person, or it can be sent to you by registered mail. If you’re difficult to locate, the court may order that you be notified through an ad in the newspaper or a notice posted to the front door of yor home address. Whatever the case, you cannot avoid the lawsuit simply by ignoring the Notice of Claim. You must respond to it – within 14 days of receiving the Notice of Claim if you live in BC, or within 30 days if you live outside of BC.

How do you reply?

There are several ways to respond to a Notice of Claim, but the main ones are:

1. you agree you owe the claim
2. you admit you owe the claim, but don’t have enough money to pay it off
3. you deny responsibility for all or part of the claim

You may want to get legal advice before you make any admissions.

What should you do if you agree you owe the claim?

If you agree you owe the amount claimed in the Notice of Claim, you can contact the claimant directly and offer to pay the claim. You must also pay the claimant’s expenses, such as the fees to “file” or enter the claim in the court records and to deliver the documents to you. You should get a receipt and have the claimant sign a form called a Notice of Withdrawal, which you can obtain from the Small Claims Court registry. You should then take this form to the registry to discontinue the court action against you.

Alternatively, you and the claimant might reach some other satisfactory agreement, in which case you can both sign a Consent Order and file it with the Small Claims Court registry. Or the claimant may file a Payment Order with the registry. If you follow the Consent Order or Payment Order, that also ends the lawsuit.

What should you do if you admit the claim, but don’t have enough money to pay it off?

Then you should fill out the Reply form attached to the Notice of Claim you received. If you didn’t get a blank Reply form with the Notice of Claim, you can go to any Small Claims Court registry to pick one up, or you can download the form from the Ministry of Attorney General’s website (web address provided at the end of this script). In the space provided, list the amounts you plan to pay and the dates you can make those payments.

Then file your Reply with the Small Claims Court registry shown on the Notice of Claim. The registry will send a copy to the claimant, who’ll decide whether to accept your proposed payment plan.

If the claimant accepts, you’ll receive a Consent Order to sign, which will end the lawsuit. If the claimant doesn’t accept, you can ask for a payment hearing, or the claimant may summons you to a payment hearing, so the court can set a Payment Schedule.

What should you do if you deny all or part of the claim?

If you admit the claim, but disagree with part of what is claimed, indicate what you disagree with on the Reply form, and again go to the Small Claims Court registry to file your Reply. In this case, you’ll have to pay a filing fee for the Reply.

If you deny the whole claim, again, complete a Reply, this time indicating why you deny it. You don’t need to tell everything about your case, as you’ll get a chance to present your case later, but you must list all your reasons.

What’s the risk if you dispute the claim and lose?

You’ll have to pay the amount of the judgment plus the claimant’s fees and costs for getting the court documents to you. The judge can also order you to pay an additional 10% of the amount claimed if you file a Reply and go to trial when you had no reasonable chance of success. Also, if you refuse to resolve or "settle" the claim (for an amount offered by the claimant) and the trial judgement is more than or equal to the claimant's offer, you may have to pay a penalty of up to 20% of the amount of the offer.

How long do you have to file a Reply?

If you live in BC, you have 14 days after you receive the Notice of Claim. If you live outside BC, you have 30 days.

What if you ignore a claim or don’t file a Reply in time?

It’s very important to file a Reply – and to file it in time. If you don’t, the claimant can get a Default Order against you without you having the opportunity to dispute their claim.

There are also other ways to respond to a claim

For example, you may think that the claimant shouldn’t be suing you, but that you should be suing the claimant. In this case, you can file a Counterclaim, and the judge would later decide who was at fault.

Or you may admit that you owe money, but believe the claimant also owes you money for some other reason. In this case, you can file a Counterclaim claiming a “set-off.” You’d be setting off the money you owe against the money owed to you.

Or you may think another person should pay all or part of the claim against you, in which case you’d file a Third Party Notice.

All of these options require you to pay an additional filing fee.

What happens if the lawsuit proceeds?

After you’ve filed your Reply (and maybe a Counterclaim or Third Party Notice), the registry will send a copy to the claimant.

For most disputed claims, a “settlement conference” will be scheduled. The registry will notify you of the date and time for this meeting, which is attended by the claimant, the judge and you. The purpose of the settlement conference is to try and resolve some or all of the issues between you and the claimant before going to trial. If the claim can’t be resolved, there will be a trial.

You may also receive notification regarding a court “mediation” for the dispute, where a neutral mediator will attempt to resolve the dispute.

You must attend the settlement conference or mediation, or you risk having a payment order made against you for the full amount of the claim. If you cannot attend, you must notify the scheduler immediately and seek an adjournment or postponement of the scheduled date.

The most important thing to remember is that you must respond

If you get a Notice of Claim, you must file a Reply within 14 days (if you live in BC).

Where can you get help or more information?

• Talk to the Small Claims Court staff, or read over one of the Small Claims Court booklets available at the registry, at your local public library and on the Attorney General’s website at www.ag.gov.bc.ca/courts/small_claims/.
• Also refer to the other Dial-A-Law scripts in this Small Claims Court series.

[updated March 2013]

---

---

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

The person who starts a court proceeding seeking an order for a specific remedy or relief against another person, the respondent. See "action" and "respondent."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

In law, an answer or rebuttal to a claim made or a defence raised by the other party to a court proceeding or legal dispute. See "action," "claim," "defence" and "rebut."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

(1) A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed, or (2) a courthouse.

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

A legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim" and "Counterclaim."

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

A judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as the judge's findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusion of law," "finding of fact" and "final judgment."

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In contract law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract, or settlement. See "offer to settle."

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."

The suspension of a hearing or trial, usually when the hearing or trial cannot proceed on the date scheduled or because it cannot complete within the time scheduled, normally until a specific date. See "sine die."