Difference between revisions of "Being Sued in Small Claims Court"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group|date= August 2017}} {{Dial-A-Law TOC|expanded = courts}}
If a notice of claim names you as a defendant in a Small Claims Court lawsuit, learn what options you have, how to act on them, and what happens next.


{{Dial-A-Law TOC|expanded = smallclaims}}
==What you should know==
This script details being sued in Small Claims Court.


==Do not ignore a Notice of Claim==
===If you receive a notice of claim===
If you receive a Notice of Claim from Small Claims Court showing you as a “defendant”, this means that someone, including a person or company, called the “claimant”, is suing you.  
If you receive a '''notice of claim''' in a Small Claims Court lawsuit naming you as a defendant, it means someone is suing you.


A Notice of Claim may be handed to you personally by the claimant or by 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 your home address.  
A notice of claim may be handed to you personally by the party suing you or by another person, or it can be sent to you by registered mail. If you’re hard to find, the court may order that you be notified in some other way, such as by a notice posted on your front door or an ad in the local newspaper.


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. If not, the claimant may win the lawsuit automatically, known as “default”, discussed in detail below.  
Once you receive the notice, '''don’t ignore it'''. If you do nothing, the other party can get a judgment against you, just as if there had been a trial.


==How do you reply?==
You must respond to the notice of claim ''within 14 days''. (If you live outside BC, you have 30 days to respond.) You can respond by filing a '''reply''' with the court. We explain how shortly. Or you can contact the other party to make arrangements you can both live with and the other party can withdraw the claim.
There are several ways to respond to a Notice of Claim, but the main ones are:
#you agree you owe the amount set out in the claim
#you admit you owe the amount set out in the claim, but state that you do not have enough money to pay it off
#you deny responsibility for all or part of the amount set out in the claim


You may want to get legal advice before you make any admissions.
===If you admit the claim and intend to pay===
If you '''admit''' the claim, you can contact the other party directly and tell them. You can pay the amount claimed directly to them.


==What should you do if you agree you owe the claim?==
Alternatively, you and the other party might make some arrangements you can both live with. For example, they may agree to accept a reduced amount, or a payment plan. If so, the other party can file a '''consent order''' or a '''payment order''' with the court, and the lawsuit will end. (You must also pay their expenses, such as the fees to file the claim and deliver the notice to you.)
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 may 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 instructions set out in the Consent Order or Payment Order, the lawsuit will end.
===If you admit the claim, but can’t pay it===
If you admit the claim, but can’t pay the amount involved, you should file a '''reply''' to the claim. A blank reply form should have been attached to the notice of claim. If you didn’t get a blank reply form with the notice, you can get it online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims] or from any [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/courthouse-locations Small Claims Court registry]. On the reply, list the amounts you can pay and when you will pay.


==What should you do if you admit the claim, but don’t have enough money to pay it off?==
Then, '''file your reply''' with the Small Claims Court registry shown on the notice of claim. You must pay a filing fee.
If you admit the claim but are unable to pay its amount, 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 (the 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.  


After, 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 will decide whether to accept your proposed payment plan.
The registry will send a copy of your reply to the other party. They will decide whether to accept your proposed payment plan.


If the claimant accepts, you will 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 summon you to a payment hearing where the court will set a Payment Schedule.
If the other party accepts your reply, you will receive a '''consent order''' to sign. It will end the lawsuit. If the other party doesn’t accept, you (or they) can ask for a '''payment hearing''', where the court will set a payment schedule.


==What should you do if you deny all or part of the claim?==
{| class="wikitable"
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.
|align="left"|'''Tip'''
You must file the reply ''within 14 days'' of receiving the notice of claim. (If you live outside BC, you have 30 days to file the reply.)
|}


If you deny the whole claim, again, complete a Reply, this time indicating why you deny it. You do not need to describe everything about your case, as you’ll get a chance to present your case later. When replying, you simply must list the reasons why you deny the claim. Evidence is not submitted at this stage, and the Reply should be brief, factual, and specific.
===If you deny the claim, or part of it===
If you disagree with part of the claim, fill out the '''reply''' form. You can get it online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims] if the notice of claim didn’t have a blank reply form attached. Explain on the reply form what parts of the claim you disagree with and what parts you agree with. File the reply with the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/courthouse-locations Small Claims Court registry]. You must pay a filing fee.


==What’s the risk if you dispute the claim and lose?==
If you deny the whole claim, fill out the '''reply''' form. List the reasons why you deny the claim. You do not need to describe everything in detail, as you’ll get a chance to present your case later. Evidence is not submitted at this stage, and the reply should be brief, factual and specific. File the reply with the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/courthouse-locations Small Claims Court registry], together with the filing fee.
If the case proceeds to trial and judgement is made against you, you will 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 judgment 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 ignore the claim===  
If you live in BC, you have 14 days after you receive the Notice of Claim. If you live outside of BC, you have 30 days after receipt.  
If you receive a notice of claim and do nothing, the other party can get a judgment against you, just as if there had been a trial. This is called a '''default order'''.


==What if you ignore a claim or don’t file a Reply in time?==
After the time for you to reply has passed (14 days if you live in BC), the other party can apply to court for the default order. If their claim is for a debt, a default order may be made without a hearing. If the claim is not for a debt, the court will schedule a '''default hearing''', where a judge decides the amount you will have to pay.
It is very important to file a Reply, and to do so on time. If you fail to do either, the claimant can get a Default Order against you without you having the opportunity to dispute their claim. This means that the court will evaluate the case exclusively on the facts and evidence given by the claimant, and award judgment based on this alone. You will have no opportunity to defend yourself, and you may have to pay the claimant everything they ask for.  


==What other options do I have?==
===If you dispute the claim and lose===
It may be the case that you have your own claim to be brought in the matter against the claimant. In this case, you can file a Counterclaim, and the judge would later decide who was at fault.
If the case goes to trial and you lose, you will have to pay the amount of the judgment, plus the other party’s fees and costs for getting the court documents to you.


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”. A set-off involves using the money the claimant owes you to reduce the amount that you owe the claimant.
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 winning. Also, if the other party makes a '''settlement offer''' that you refuse, and the trial judgment is more than or equal to their offer, you may have to pay a penalty of up to 20% of the offer.


Or, you may think another person should pay all or part of the claim against you, in which case you can file a Third Party Notice, bringing that other person into the lawsuit.
===If you have a claim of your own===
If you have your own claim against the other party relating to the matters in dispute, you can file a counterclaim. There is space on the reply form for you to describe your '''counterclaim'''. If your case goes to trial, the judge will decide on both the original claim and your counterclaim.


All of these options require that you to pay an additional filing fee.
If you admit the claim, but believe the other party also owes you money for some other reason, you can file a counterclaim claiming a '''set-off'''. A set-off involves using the money the other party owes you to reduce the amount you owe them.


==What happens if the lawsuit proceeds?==
Each of these options require you to pay another filing fee.
After you’ve filed your Reply (and perhaps Counterclaim or Third Party Notice), the registry will send a copy of the Reply and possible Counterclaim to the claimant, and a Third Party Notice to any third parties you have added.  


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, a judge, and yourself. The purpose of the settlement conference is to try to resolve some or all of the issues between yourself and the claimant before going to trial. If the claim cannot be resolved, there will be a trial.  
===If you think another party is responsible===
You may think another person should pay all or part of the claim against you. If so, you can file a '''third party notice''' to bring that other person into the lawsuit. You can get the third party notice form online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims] or from any [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/courthouse-locations Small Claims Court registry].


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


You must attend the settlement conference or mediation. Failing to do so, 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.
===If you admit the claim===
If you pay the amount claimed to the other party, you should get a receipt. The other party can end the lawsuit by filing a '''notice of withdrawal'''.


==The most important thing to remember is that you must respond==
Alternatively, if you and the other party make arrangements you can both live with (such as you paying a reduced amount or a payment plan), the other party may file a '''consent order''' or a '''payment order'''. You will get a copy of the order, which ends the lawsuit.
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?==
(These forms are available online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims].)
*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 [http://www.ag.gov.bc.ca/courts/small_claims/ www.ag.gov.bc.ca/courts/small_claims/].
*Also refer to the other Dial-A-Law scripts in this [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Small-Claims-Court Small Claims Court series].


===If you file a reply===
If you file a reply, the court registry will send a copy of it to the other party. If you file a third party notice, the registry will send it to the third party you added.


[updated May 2015]
For most claims, the court will schedule a '''settlement conference'''. The registry will tell you the date and time for the conference. You must attend. The judge will give their opinion of the case during the conference. If the claim cannot be settled, it will go to '''trial'''.
{{REVIEWED | reviewer = Jack Montpellier}}


----
You can try to resolve the claim any time before trial. If the claim is over $10,000, you or the other party can file a '''notice to mediate''', which will result in a '''mediation session'''. There, a neutral mediator will try to help you both come to an agreement on the issues. See our information on [[Going to Trial in Small Claims Court|going to trial in Small Claims Court]] for more on this option, as well as what happens at trial.
 
{| class="wikitable"
|align="left"|'''Tip'''
You must attend the settlement conference and any mediation session that is set. Otherwise, a '''payment order''' may be made against you for the amount claimed. If you cannot attend, notify the court immediately and seek an adjournment or postponement of the scheduled date.
|}
 
==Who can help==
 
===With your case===
You do not need a lawyer to go to Small Claims Court. But you'll probably better understand the process, as well as the strength of your case, if you get '''legal advice'''. If you have limited means, you might be able to get legal help from pro bono services, a student legal clinic, or an advocate. See our information on [[Free and Low-Cost Legal Help|free and low-cost legal help]].
 
===More information===
The '''BC government''' website has how-to guides on Small Claims Court, including [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/replying-to-a-claim replying to a claim], serving documents, and getting ready for court.
 
* [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides Visit website]
 
The BC government’s '''Small Claims Court Filing Assistant''' walks you through the steps of completing court forms.
 
* [http://justice.gov.bc.ca/FilingAssistant/ Visit website]
 
The '''BC Provincial Court''' website features information on Small Claims Court, as well as past court decisions.
 
* [http://www.provincialcourt.bc.ca/ Visit website]
 
The '''Small Claims BC Online Help Guide''', from Justice Education Society, provides step-by-step information on each stage of a small claims case.
 
* [http://www.smallclaimsbc.ca/ Visit website]
 
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Latest revision as of 02:27, 5 November 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Anna Kurt, Ganapathi Law Group in August 2017.
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If a notice of claim names you as a defendant in a Small Claims Court lawsuit, learn what options you have, how to act on them, and what happens next.

What you should know

If you receive a notice of claim

If you receive a notice of claim in a Small Claims Court lawsuit naming you as a defendant, it means someone is suing you.

A notice of claim may be handed to you personally by the party suing you or by another person, or it can be sent to you by registered mail. If you’re hard to find, the court may order that you be notified in some other way, such as by a notice posted on your front door or an ad in the local newspaper.

Once you receive the notice, don’t ignore it. If you do nothing, the other party can get a judgment against you, just as if there had been a trial.

You must respond to the notice of claim within 14 days. (If you live outside BC, you have 30 days to respond.) You can respond by filing a reply with the court. We explain how shortly. Or you can contact the other party to make arrangements you can both live with and the other party can withdraw the claim.

If you admit the claim and intend to pay

If you admit the claim, you can contact the other party directly and tell them. You can pay the amount claimed directly to them.

Alternatively, you and the other party might make some arrangements you can both live with. For example, they may agree to accept a reduced amount, or a payment plan. If so, the other party can file a consent order or a payment order with the court, and the lawsuit will end. (You must also pay their expenses, such as the fees to file the claim and deliver the notice to you.)

If you admit the claim, but can’t pay it

If you admit the claim, but can’t pay the amount involved, you should file a reply to the claim. A blank reply form should have been attached to the notice of claim. If you didn’t get a blank reply form with the notice, you can get it online at gov.bc.ca/smallclaims or from any Small Claims Court registry. On the reply, list the amounts you can pay and when you will pay.

Then, file your reply with the Small Claims Court registry shown on the notice of claim. You must pay a filing fee.

The registry will send a copy of your reply to the other party. They will decide whether to accept your proposed payment plan.

If the other party accepts your reply, you will receive a consent order to sign. It will end the lawsuit. If the other party doesn’t accept, you (or they) can ask for a payment hearing, where the court will set a payment schedule.

Tip

You must file the reply within 14 days of receiving the notice of claim. (If you live outside BC, you have 30 days to file the reply.)

If you deny the claim, or part of it

If you disagree with part of the claim, fill out the reply form. You can get it online at gov.bc.ca/smallclaims if the notice of claim didn’t have a blank reply form attached. Explain on the reply form what parts of the claim you disagree with and what parts you agree with. File the reply with the Small Claims Court registry. You must pay a filing fee.

If you deny the whole claim, fill out the reply form. List the reasons why you deny the claim. You do not need to describe everything in detail, as you’ll get a chance to present your case later. Evidence is not submitted at this stage, and the reply should be brief, factual and specific. File the reply with the Small Claims Court registry, together with the filing fee.

If you ignore the claim

If you receive a notice of claim and do nothing, the other party can get a judgment against you, just as if there had been a trial. This is called a default order.

After the time for you to reply has passed (14 days if you live in BC), the other party can apply to court for the default order. If their claim is for a debt, a default order may be made without a hearing. If the claim is not for a debt, the court will schedule a default hearing, where a judge decides the amount you will have to pay.

If you dispute the claim and lose

If the case goes to trial and you lose, you will have to pay the amount of the judgment, plus the other party’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 winning. Also, if the other party makes a settlement offer that you refuse, and the trial judgment is more than or equal to their offer, you may have to pay a penalty of up to 20% of the offer.

If you have a claim of your own

If you have your own claim against the other party relating to the matters in dispute, you can file a counterclaim. There is space on the reply form for you to describe your counterclaim. If your case goes to trial, the judge will decide on both the original claim and your counterclaim.

If you admit the claim, but believe the other party also owes you money for some other reason, you can file a counterclaim claiming a set-off. A set-off involves using the money the other party owes you to reduce the amount you owe them.

Each of these options require you to pay another filing fee.

If you think another party is responsible

You may think another person should pay all or part of the claim against you. If so, you can file a third party notice to bring that other person into the lawsuit. You can get the third party notice form online at gov.bc.ca/smallclaims or from any Small Claims Court registry.

What happens next

If you admit the claim

If you pay the amount claimed to the other party, you should get a receipt. The other party can end the lawsuit by filing a notice of withdrawal.

Alternatively, if you and the other party make arrangements you can both live with (such as you paying a reduced amount or a payment plan), the other party may file a consent order or a payment order. You will get a copy of the order, which ends the lawsuit.

(These forms are available online at gov.bc.ca/smallclaims.)

If you file a reply

If you file a reply, the court registry will send a copy of it to the other party. If you file a third party notice, the registry will send it to the third party you added.

For most claims, the court will schedule a settlement conference. The registry will tell you the date and time for the conference. You must attend. The judge will give their opinion of the case during the conference. If the claim cannot be settled, it will go to trial.

You can try to resolve the claim any time before trial. If the claim is over $10,000, you or the other party can file a notice to mediate, which will result in a mediation session. There, a neutral mediator will try to help you both come to an agreement on the issues. See our information on going to trial in Small Claims Court for more on this option, as well as what happens at trial.

Tip

You must attend the settlement conference and any mediation session that is set. Otherwise, a payment order may be made against you for the amount claimed. If you cannot attend, notify the court immediately and seek an adjournment or postponement of the scheduled date.

Who can help

With your case

You do not need a lawyer to go to Small Claims Court. But you'll probably better understand the process, as well as the strength of your case, if you get legal advice. If you have limited means, you might be able to get legal help from pro bono services, a student legal clinic, or an advocate. See our information on free and low-cost legal help.

More information

The BC government website has how-to guides on Small Claims Court, including replying to a claim, serving documents, and getting ready for court.

The BC government’s Small Claims Court Filing Assistant walks you through the steps of completing court forms.

The BC Provincial Court website features information on Small Claims Court, as well as past court decisions.

The Small Claims BC Online Help Guide, from Justice Education Society, provides step-by-step information on each stage of a small claims case.

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