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| {{REVIEWED LSLAP | date= August 4, 2021}} | | {{REVIEWED LSLAP | date= August 4, 2020}} |
| {{LSLAP Manual TOC|expanded = smallclaims}} | | {{LSLAP Manual TOC|expanded = wills}} |
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| In order to have a legal claim, it must be recognized by the law. A frivolous claim is one that does not disclose a legal cause of action, is incapable of proof, or is otherwise bound to fail. A vexatious claim is one that is brought in order to annoy, frustrate, or antagonize the defendant. A claim may be both frivolous and vexatious.
| | == A. Joint Tenancy and Tenancy in Common == |
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| If a claim is frivolous or vexatious, the claimant will lose and may be penalized up to 10% of the amount of the claim (''Small Claims Rules'', BC Reg 261/93, 20(5) [SCR]). The penalty could be up to $8,750 on a $35,000 claim; it pays to research your cause of action and limit your claim to the proper amount.
| | Where property is owned by more than one individual, it may be held in “joint tenancy” or “tenancy in common”. The main difference between a joint tenancy and a tenancy in common is that, in the case of a true joint tenancy, each joint tenant receives the right of survivorship. The result is that, upon the death of one joint tenant, the other becomes entitled to the whole of the property. The testator’s interest in the property does not form a part of their estate and does not pass under the will. Instead, it passes “outside the will” to the surviving joint tenant(s). |
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| | The right of survivorship has its benefits as well as problems. Because the testator’s interest in the property held under joint tenancy does not become a part of the estate, probate fees related to the property can be avoided as the interest passes outside the will. Placing assets in joint tenancy may also avoid costs and delays associated with obtaining probate. Furthermore, a beneficiary of a will who is not satisfied with their gift under the will cannot make a claim under the ''Wills Variation Act'' to obtain a greater share in the estate for property that passes outside of the estate. One drawback of placing assets in joint tenancy is that the surviving tenant owns the asset and does not need to respect the will-maker’s wishes on how they may have wanted their asset dealt with after their death. |
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| == A. Types of Claims & Remedies ==
| | In contrast, where owners hold an interest in the property as tenants in common, each has a separate undivided share. Upon death, each owner’s individual share forms part of their estate. |
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| It is helpful to research each of the following types of claims to ensure that a claim falls within at least one of them. See Appendix G: Causes of Action for a partial list of specific causes of action. If you are unable to fit your claim into one of the listed categories, you should consult a lawyer to see if you have a cause of action.
| | == B. Joint Bank Accounts == |
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| === 1. Tort ===
| | When a joint bank account is created, many assume that when one owner dies, the survivor is automatically entitled the remaining balance in the account. However, this is not always the case. In ''Pecore v Pecore'', 2007 SCC 17, the Supreme Court of Canada held that when a parent creates a joint bank account with an adult child, it is presumed that this arrangement is made out of convenience, and there was not an intent by the parent for the balance of the account to pass to their adult child by way of survivorship. Unless the intention for the account to pass to the adult child through survivorship is clear when the bank account is set up, courts will presume that the balance in the joint account is to be held by the child in a resulting trust for their parent’s estate. It is then up to the child to prove that their parent intended to gift the bank account to them. If the child fails to establish such an intention, the balance of the account forms a part of their parent’s estate and is distributed according to their will or the law of intestacy. |
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| Torts are offences committed by one person against another. Examples include assault, battery, and negligence. Each tort has its own test and defences. Tort law continues to evolve and a person planning to bring a claim in tort should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer.
| | The Court will consider many factors when determining the deceased’s intention in situations involving joint bank accounts. For a detailed discussion of these factors, see https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money |
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| === 2. Contract ===
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| Contract law governs voluntary relationships between parties. It is a complicated and nuanced area of the law and a person planning to bring a claim in contract law should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer.
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| '''NOTE:''' Courts will generally not enforce illegal contracts or dishonest transactions (See ''[http://canlii.ca/t/1djfx Faraguna v Storoz]'', [1993] BCJ No. 2114). However, ''[http://canlii.ca/t/1gd53 Transport North American Express Inc. v New Solutions Financial Corp.]'', 2004 SCC 7 states that a court may enforce legal portions of a contract, thus effectively severing the illegal portion. A common example involves contracts purporting to charge interest rates prohibited under s 347 of the ''Criminal Code''. The court will not enforce a term in a contract purporting to charge such a rate. (However, section 347.1 exempts payday loans from criminal sanctions, if certain conditions are met; see [[Direct Sales, Future Performance, and Time Share Contracts (11:V)#G. Regulation of Payday Lenders and Criminal Rate of Interest | Section V.G: Regulation of Payday Lenders and Criminal Rate of Interest]] in Chapter 9: Consumer Protection).
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| === 3. Equity ===
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| The usual remedy for torts and breaches of contract is monetary damages. In circumstances where monetary damages are inadequate or where a legal remedy is improper in the circumstances, the court may grant other relief such as an injunction. The Small Claims Court, pursuant to s 2 of the ''Small Claims Act'' [SCA] (''Small Claims Act'', RSBC 1996, c 430), has a limited inherent jurisdiction to grant equitable remedies. The Civil Resolution Tribunal, pursuant to s 118 of the ''Civil Resolution Tribunal Act'' [CRTA] (''Civil Resolution Tribunal Act'', SBC 2012, c 25), has the same limited jurisdiction. A party seeking an equitable remedy such as an injunction should consult with a lawyer and will likely need to apply to the Supreme Court for relief.
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| === 4. Restitution ===
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| The law of restitution (See ''[http://canlii.ca/t/1gzjn Garland v Consumers' Gas Co.]'', 2004 SCC 25; ''[http://canlii.ca/t/2fs3h Kerr v Baranow]'', 2011 SCC 10; ''[http://canlii.ca/t/fpm5g Skibinski v Community Living British Columbia]'', 2012 BCCA 17) applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited ("[http://canlii.ca/t/1gzjn Garland v Consumers' Gas Co.", 2004 SCC 25;" [http://canlii.ca/t/2fs3h Kerr v Baranow", 2011 SCC 10]; ''[http://canlii.ca/t/fpm5g Skibinski v Community Living British Columbia'', 2012 BCCA 17]). The type of claim commonly pursued for a restitution remedy is referred to as “unjust enrichment” and is a complicated and evolving area of the law. A party planning to attain a restitution remedy should consult a lawyer, research what must be proved to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer.
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| === 5. Statute ===
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| Certain statutes create a right of action that does not exist in the common law. The statute will set out what must be proved, the defences that apply, the types of damages that can be awarded, and how the claim must be brought. A person planning to bring a claim under a statutory cause of action should research the statute as well as how the courts have interpreted it by noting up the applicable provisions. See page 2: “Other Important Statutes”. Resources include CanLII.org, the courthouse library, and a practicing lawyer.
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| === 6. Declaratory Relief ===
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| Declaratory relief, whereby the court defines the rights of the parties to resolve legal uncertainties, cannot be claimed at the Provincial Court of British Columbia or the CRT. This includes declarations of who is liable for an accident and then ordering the defendant (often represented by an insurer) to change its liability determination. Parties seeking declaratory relief must do so at the BC Supreme Court (''Supreme Court Civil Rules'', BC Reg 168/2009, 20-4(1)).
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| == B. Types of Damages ==
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| Although the Small Claims Court has the jurisdiction to award $35,000, the monetary awards in most cases are significantly less (''Small Claims Court Monetary Limit Regulation'', BC Reg 179/2005). There must be a principled basis for an award of damages and it is helpful to separate a claim into the following types of damages. Ensuring that there is a legal basis for a claim is a critical step as there are penalties for proceeding through a trial in Small Claims Court on a claim that has no reasonable basis for success (''SCR'', s 20(5)).
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| === 1. General Damages ===
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| General damages, also called non-pecuniary damages, are those that are not easy to quantify and for which a judge must assess the amount of money that, in the circumstances, will compensate for the loss. A common example of general damages is “pain and suffering”. The purpose of general damages is to compensate and not to punish; a party should not expect to profit or realize a windfall through an award of general damages. A person planning to claim general damages should provide evidence of the loss and research the case law to determine how the courts have assessed damages in cases with similar losses and circumstances. Resources include CanLII.org, the courthouse library, and a practicing lawyer.
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| === 2. Special Damages ===
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| Special damages are generally quantifiable out-of-pocket expenses that must be specifically claimed and strictly proven (''SCR'', s 20(5)). For example, if a person has been put to expense and has receipts showing the amounts spent, these expenses would be classified as special damages. In a personal injury action, this could be medical bills, or in an action involving faulty equipment, repair bills could be classified as special damages. Each and every expense must be strictly proved with documents or other satisfactory evidence. In [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc581/2013bcsc581.html?searchUrlHash=AAAAAQAdUmVkbCB2LiBTZWxsaW4sIDIwMTMgQkNTQyA1ODEAAAAAAQ&resultIndex=1 ''Redl v. Sellin'', 2013 BCSC 581], the Court sets out the test with respect to a claimant’s claim for special damages. Generally speaking, claims for special damages are subject only to the standard of reasonableness. As with claims for the cost of future care (see '[https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc982/2011bcsc982.html?searchUrlHash=AAAAAQAeSnVyYXNraSB2LiBCZWVrLCAyMDExIEJDU0MgOTgyAAAAAAE&resultIndex=1 'Juraski v. Beek'', 2011 BCSC 982; ''Milina v. Bartsch'' (1985), 49 BCLR (2d) 33 (BCSC))], when a claimed expense has been incurred in relation to treatment, evidence of medical justification for the expense is a factor in determining reasonableness.
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| === 3. Nominal Damages ===
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| Nominal damages are those where a wrong has been committed but there has been no, or insignificant, damages suffered as a result of the wrong. Certain torts, such as trespass, allow claims for nominal damages however there is little reward and much to be lost. A person who has suffered no damages yet still brings a claim may not recover the costs for bringing a claim that wastes the court’s and the parties’ time and money. Note that cost awards are limited in small claims cases (''SCR'', s 20(2)) and in Civil Resolution Tribunal cases, legal feels will rarely be awarded (''Civil Resolution Tribunal Rules'', Rule 9.4(3) [CRTR]).
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| === 4. Debt ===
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| Debt is a remedy for breach of contract; see [http://canlii.ca/t/5467 ''Busnex Business Exchange Ltd. v Canadian Medical Legacy Corp.'', 1999 BCCA 78]. The requirement for establishing a debt or ‘liquidated demand’ is that the sum of money is evident or able to be calculated by virtue of the contract. If the amount requires more investigation than mere calculation, the amount is not a debt but ‘damages’.
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| === 5. Liquidated Damages ===
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| Some contracts provide for a genuine pre-estimate of damages in the event of a breach and allow the non-breaching party to claim for that estimate without having to prove the amount they have actually lost. This amount can be recovered as a debt. If the amount of liquidated damages is not a genuine pre-estimate of damages or is manifestly inappropriate in the circumstances, a court may decline to award them. However, the CRT cannot relieve a penalty because it is not a “court” (''Law and Equity Act'', s 24(2)).
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| === 6. Statutory Damages ===
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| Statutory damages are those that arise from a breach by the defendant of an obligation found in a statute. The statute and relevant case law should be examined carefully to determine what damages, if any, may be claimed and the principles for assessing damages. Note, there are few statutory breaches that trigger statutory damages.
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| === 7. Aggravated Damages ===
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| Aggravated damages provide additional compensation where the wrongdoer’s actions have caused mental distress, injury to dignity, or injury to pride ([http://canlii.ca/t/20zgp ''Campbell v Read'', 22 BCLR (2d) 214 (CA), 1987 Carswell BC 440]). Awards of aggravated damages are rare and depend heavily on the actions of the wrongdoer and the circumstances. Aggravated damages have previously been awarded in cases of aggravated assault and sexual assault ([http://canlii.ca/t/ft05t ''Thornber v Campbell'', 2012 BCSC 1449;] [http://canlii.ca/t/flvt5 ''B(A) v D(C)'', 2011 BCSC 775]). The claimant must provide actual evidence of mental distress that results from the wrongdoing of the defendant.
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| A claimant who seeks aggravated damages must ask for aggravated damages in the Notice of Claim (or “Application for Dispute Resolution” in the Civil Resolution Tribunal). Aggravated damages cannot be awarded in addition to the $35,000 monetary limit.
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| === 8. Punitive Damages ===
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| Punitive damages, also called “exemplary damages”, are reserved for conduct that is so abhorrent that the court must impose an additional penalty to punish the wrongdoer and discourage others from engaging in similar conduct. Punitive damages are '''rarely''' awarded. Punitive damages are not compensatory and the amount, if any, is in the complete discretion of the judge.
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| A claimant who seeks punitive damages must ask for punitive damages in the Notice of Claim (or “Application for Dispute Resolution” in the Civil Resolution Tribunal). Punitive damages '''cannot''' be awarded in addition to the $35,000 monetary limit.
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| == C. Limitation Periods ==
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| ===1. Changes Due to COVID-19===
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| '''NOTE:''' Due to COVID-19, limitation dates were temporarily suspended. However, as of March 25, 2021, the suspension has been lifted, and limitations dates function as per usual. To ensure you are up to date, consult the [https://www.provincialcourt.bc.ca/COVID19 website].
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| To calculate limitations dates that were affected by COVID-19, please refer below guidelines for calculating BC limitation periods from the Law Society of BC website.
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| * If the limitation period would normally have expired between March 26, 2020 and March 25, 2021, add one year to the expiry year of the limitation period. Thus, persons have the same amount of time remaining after the suspension of limitation periods as they did before.
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| * If the cause of action arose before March 26, 2020 and would normally expire after March 26, 2021, add one year to the expiry year of the limitation period.
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| * If the cause of action arose after the suspension of limitation periods but before March 25, 2021, then the limitation period
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| expires March 26, 2023. In this way, a limitation period that began to run during the suspension starts to run when the suspension is lifted.
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| The CRT remained open and operating normally during the COVID-19 pandemic. The automatic suspension of limitation dates did not apply to the CRT. The CRT may waive, suspend or extend mandatory time periods set out in a statute, which includes both limitation dates and the 28-day deadline to file a notice of objection to a CRT decision; however, the CRT can only exercise this discretionary power during the declaration of the state of emergency. The CRT also has the discretion to extend any timeline set out in the CRT’s Rules. Requests to the CRT relating to any time periods should be filed '''as soon as possible'''. Note: Since the CRT process is easily accessible online, it may be difficult for a person to prove they need an extension. For the latest information, consult https://civilresolutionbc.ca/.
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| ===2. Limitation Act===
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| After a certain amount of time has passed, a person loses the right to commence a claim. The amount of time that must pass before the limitation period expires depends on which act applies to the claim.
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| The ''Limitation Act'', SBC 2012, c 13 [Limitation Act] came into effect on June 1, 2013. A claim is governed by this Act if the claim was discovered after this date. Under the ''Limitation Act'', s 6(1), the basic limitation period that applies to most claims is 2 years after the day on which the claim is discovered.
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| Discovery occurs the day on which the claimant knew or reasonably ought to have known all of the following:
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| *a) That injury, loss or damage had occurred;
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| *b) That the injury, loss or damage was caused by or contributed to by an act or omission;
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| *c) That the act or omission was that of the person against whom the claim is or may be made;
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| *d) That, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage (''Limitation Act'', s 8).
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| Special rules for discovery apply in various circumstances. For example, when a person signs a document acknowledging liability for a claim, discovery is deemed to occur on the date the acknowledgment is made unless the limitation period has already expired (''Limitation Act'', s 24(1). Generally, there is an ultimate limitation period of 15 years from the date the basis of the claim occurred, regardless of when discovery happens (''Limitation Act'', s 21(1). If it has been close to 2 years since the events giving rise to your claim occurred, act quickly and refer to '''Appendix F: Limitation Periods''' or consult a lawyer.
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