Responding to a Small Claim (20:VI)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 12, 2022.

If a party is responding to a claim over $5,000, proceed to Section VI.B.: Possible Strategies.

A. Civil Resolution Tribunal

A respondent who receives a Dispute Notice must within 14 days of receiving it (or if notice was provided outside British Columbia within 30 days) complete a Dispute Response Form and provide the Dispute Response Form to the tribunal. CRT forms can be accessed on their website at https://civilresolutionbc.ca/resources/forms/.

A party named as a respondent to a dispute who fails to respond to a properly delivered Dispute Notice by the date shown on the notice is in default. If every respondent is in default, an applicant may request a default decision and order from the tribunal. However, if there are multiple respondents and only one respondent is in default, the entire dispute is assigned to a tribunal member, unless it is otherwise settled in the facilitation process. See Section VII: Default Order for more information

However, if a respondent requires more time to respond, they can request an extension from the tribunal before the deadline to respond (CRTR, Rule 3.1(2)).

B. Possible Strategies

1. Notify Insurance Company

Many insurance policies cover more liabilities than their description would suggest. For example, many homeowner and tenant policies cover claims for damages or injuries arising from acts or omissions by the insured anywhere in the world. An example would be accidentally tripping a person who falls and breaks their hip. These policies also tend to include most people in the household including young children and foster children.

There are many exclusions and limitations but it is always best to let the insurer know about a claim against you. If the insurer will defend you, the insurer will bear the costs of your defence and possibly pay any damages that are awarded.

Note: It is important to contact the insurer as soon as possible and to not make any admissions that might jeopardize a defence. Failing to promptly notify the insurer, admitting liability, or taking steps in the claim may permit the insurer to deny coverage.

2. Apologizing

Many lawsuits arise or continue because a wrongdoer has not apologized to the party who was wronged. In BC, a person may apologize for a wrongful act or failure to act without the apology becoming an admission of liability (Apology Act, SBC 2006, c 19, 2(1) and (2)). A sincere apology can often avert litigation or form an important foundation for a settlement.

3. Option to Pay all or Part

If a defendant pays the entire amount of the claim directly to the claimant, the defendant need not file a Reply (SCR, Rule 3(1)(a)). The defendant should retain a receipt as proof of payment and request that the claimant withdraws the claim. Only the claimant may withdraw a claim and, if a withdrawal is filed, all parties who were served with the Notice of Claim must be served with a copy of the withdrawal.

When considering this option, a defendant should be aware of other possible problems aside from the lawsuit. For example, if the claimant has placed derogatory information on the defendant’s credit file, the defendant should ask the claimant to remove this negative information as part of the settlement. If the claimant is unwilling to remove the information, the defendant may still settle the claim but may find it difficult or impossible to remove the information from the credit file. The process for removing incorrect information from a person’s credit file is outside the scope of this guide.

In Small Claims Court, if the entire claim is admitted but the defendant requires time to pay or only part of a claim is admitted (SCR, Rule 3(1)(b) or (c)), the defendant must file a reply form but may also propose a payment schedule for what is admitted. The payment schedule must detail how the amount will be paid back. The Registrar can order the proposed payment schedule if the claimant consents to it (SCR, Rule 11(10)(b)). If the claimant does not consent to the proposal or no payment schedule is proposed, the claimant may summon the defendant to a payment hearing (see Section XVI: Enforcing a Judgment). Similarly, at the CRT the defendant may file a response admitting the claim which the applicant can enforce through Small Claims Court.

4. Option to Oppose all or Part

A defendant who opposes all or part of the claim (SCR, Rule 3(1)(d)) must file a Reply form detailing what is admitted, what is opposed, or what is outside the defendant’s knowledge. The reply should list reasons for any parts that are opposed. A defendant should avoid a general denial of the entire claim; a detailed examination of each element of the claim and why the defendant thinks it is wrong is much more persuasive.

Before deciding to oppose a claim, a defendant should ensure that there is a legal defence to the claim. A penalty can apply if a defendant proceeds through trial with a Reply that is bound to fail (SCR, Rule 20(5)).

5. Counterclaim

If the defendant wants the court to order something other than a dismissal of the claimant’s claim, the defendant will need a counterclaim. A counterclaim means that, in addition to the defendant disputing the claim, the defendant seeks to sue the claimant. A defendant may file a counterclaim whether they agree or disagree with all or a part of the claim (SCR, Rule 4(1)). Counterclaims are claims filed by the defendant against the applicant; they are generally based on the same underlying facts as the applicant’s claim. A defendant who wishes to counterclaim should review Section III: Do You Have a Claim? and Section IV: Choosing the Proper Forum. A counterclaim is essentially a Notice of Claim but in a different form. A counterclaim must have a legal basis; there are penalties for proceeding to trial if there is no reasonable basis for success (SCR, Rule 20(5)).

Although a defendant can start a separate claim either in Small Claims Court or another forum instead of counterclaiming, if the parties and witnesses are the same and the claim falls within the Small Claims Court jurisdiction, it is preferable that the defendant file a counterclaim so that both matters are heard together. If the defendant has commenced an action in a different forum, this should be mentioned in the Reply (see https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/small-claims/scl002.pdf)

A counterclaim is made on the Reply form by following the instructions and paying the required fee. The fee for a counterclaim is the same as the fee for a Notice of Claim and is eligible for a fee waiver. For more information about making a counterclaim, refer to Guide #2 - Making a claim for proceedings initiated in small claims court (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim) and Guide #3 - Making a claim for proceedings previously initiated before Civil Resolution Tribunal (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim-crt).

The relationship between a counterclaim and a set-off should be noted. A counterclaim is a standalone claim and it is possible for a defendant to succeed on a counterclaim even when the claimant has been unsuccessful on the primary claim. A set-off, on the other hand, is a defence. If the defendant is successful, a set-off will reduce the amount payable to the claimant. In other words, the amount that the defendant claims the claimant owes them is subtracted from any damages claimed by the claimant. If the claimant is unsuccessful, the set-off defence does not apply; the defendant is not awarded the amount of the set-off. For more information about set-offs see: [https://canlii.ca/t/27vgj Jamieson v. Loureiro, 2010 BCCA 52].

a) Filing and Service

As the counterclaim is on the reply form, it must be filed at the same time as the Reply (SCR, Rule 4(1) and (2)), within the time allowed for filing a Reply (SCR, Rule 3(4)), and at the registry where the notice of claim was filed (SCR, Rule 3(3)).

The registry will serve the claimant with the reply and counterclaim within 21 days of it being filed (SCR, Rules 3(5) and 4(2)).

b) Replying to a Counterclaim

Once served, the claimant (now a defendant by counterclaim) must follow the same rules as replying to a Notice of Claim (SCR, Rule 5(7)). The claimant should review this section of the guide in its entirety.

6. Counterclaims through the Civil Resolution Tribunal

Once served, the applicant (now a respondent by counterclaim) must follow the same rules as replying to a Dispute Notice (SCR, Rule 1.1(32) and (33)). The applicant should review this section of the guide in its entirety.

Unless the tribunal directs otherwise, within 30 days of providing the Dispute Response Form to the tribunal, a respondent can request a “counterclaim” by:

• indicating in a completed Dispute Response Form that the respondent will add at least one claim in the dispute;
• completing an Additional Claim Form;
• providing the Additional Claim Form to the tribunal; and
• paying the required fee to add a claim (see Appendix I: Civil Resolution Tribunal Fees). Note: a counterclaim is not necessary if the respondent is only claiming fees and dispute-related expenses; a respondent may claim fees and dispute-related expenses in the tribunal decision process.

7. Third Party

If the defendant who has filed a Reply believes that a person or legal entity other than the claimant should pay all or part of the claim, they may make a claim against that other party by completing a Third Party Notice. Find Form 3 at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms. If a settlement conference, mediation session, or a trial conference has not been held, leave of the court is not required (SCR, Rule 5(1)(a)). If any of these have been held, the defendant must apply to the court for an order permitting the counterclaim to be filed against the third party (SCR, Rule 5(1)(b)).

A third-party claim is different from a claim against the incorrect defendant. A third party claim is made when a defendant believes that a third party should reimburse them if they are found to be liable to the claimant. For example, if a defendant is sued for a credit card debt, the defendant may request that the third-party, the cardholder who actually spent the money, gives rise to the debt.

A defendant who wishes to issue a third party notice should review Section III. Do You Have A Claim? and Section IV. Choosing The Proper Forum. A third-party claim is essentially a Notice of Claim but in a different form. A third party claim must have a legal basis and there are penalties for proceeding to trial if there is no reasonable basis for success.

a) Filing and Service

To start a third-party claim, the defendant must complete Form 3 and file it in the same registry where the Notice of Claim was filed (SCR, Rule 5(2)). The defendant must serve the third party with a copy of the filed Form 3, a blank Reply form, a copy of the Notice of Claim, a copy of the Reply to the Notice of Claim, and all of the documents and notices the other party would have received (SCR, Rule 5(3)); all of these documents are to be served in the same manner as serving a Notice of Claim (SCR, Rule 5(4)). A defendant has only 30 days after filing to serve the third party and file a certificate of service at the registry (SCR, Rule 5(5)); find Form 4 at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms. If the third party is not served and the certificate of service is not filed within 30 days, the third party notice expires but can be renewed (SCR, Rule 5(5.1)).

The registry will serve the claimant with the third party notice within 21 days of its being filed (SCR, Rule 5(6)).

b) Replying to a Third Party Notice

Once served, a third party must follow the same rules as replying to a Notice of Claim (SCR, Rule 5(7)). The third-party should review this section of the guide in its entirety.

c) Adding a Third Party through the Civil Resolution Tribunal

A respondent who believes another person is responsible for a claim can request resolution of the claim against that other person, often referred to as a “third party claim” by:

• indicating in a completed Dispute Response Form that the respondent will apply for dispute resolution against the other person,
• completing an Additional Claim Form identifying the other person and describing any claims against that person,
• providing the Additional Claim Form to the tribunal, and
• paying the required fee to add a claim (see Appendix I: Civil Resolution Tribunal Fees).

A respondent who adds an additional party to a claim must complete the steps for applying for CRT Dispute Resolution, except the time frame for providing notice to the other person is 30 days instead of 90 days, and the original Dispute Notice and any responses must be provided along with the Dispute Notice for the additional claims.

C. Time Limits

Unless a defendant pays the amount of the claim directly to the claimant and asks the claimant to withdraw the claim (Small Claims Rules, supra, Rule 3(1)(a)), the defendant must file a Reply within the required time limit. Failure to file a Reply may result in the claimant obtaining a Default Order.

The time limits for filing a Reply are generally the same whether the defendant is:

• a defendant served with a Notice of Claim (SCR, Rule 3(4));
• the claimant served with a counterclaim (SCR, Rule 4(3.1)(b)); or
• a third party served with a third party notice (SCR, Rule 5(7)).

If the defendant was served inside British Columbia, a Reply must be filed within 14 days after service (SCR, Rule 3(4)). If the defendant was served outside British Columbia, a Reply must be filed within 30 days after service (SCR, Rule 3(4)). The one exception is where the claimant is served with a counterclaim. The claimant is required to file a Reply within 14 days after service even if the claimant is served outside British Columbia.

D. Defences

For every cause of action, there is usually at least one possible defence. Some of the more common defences are listed here however a defendant should research the claimant’s cause of action or obtain legal advice to determine which defences might be applicable.

1. Common Defences

a) Contributory Negligence

Where a claimant was careless and this carelessness contributed to the damages suffered, a defendant might plead the defence of contributory negligence. An example is where a claimant tripped over a bag that was carelessly left in a walkway. The defendant may be liable but the claimant may have been contributorily negligent for failing to keep watch for obstacles.

A defendant who believes that the claimant was partially at fault should state in the reply: “The defendant pleads and relies upon the Negligence Act” (Negligence Act, RSBC 1996, c 333). Each party is liable to the degree that they are at fault; where degrees of fault cannot be determined, liability is apportioned equally (s 1(2)).

b) Consent

Where, by express or implied agreement, a claimant knew of and understood the risk they were incurring and voluntarily assumed that risk, the defendant will not be liable. Because voluntary assumption of risk is a complete defence, it is very difficult to prove.

c) Criminality

Where a claimant stands to profit from criminal behaviour or compensation would amount to an avoidance or disavowal of a criminal sanction, the claimant cannot recover damages (Hall v Hebert, [1993] 2 SCR 159; British Columbia v Zastowny, [2008] 1 SCR 27). This is narrowly construed and a claimant should read Hall v Hebert before relying upon it.

d) Inevitable Accident

If the defendant can show that the accident could not have been prevented even if the defendant had exercised reasonable care, the defendant cannot be liable (Rintoul v X-Ray and Radium Industries Ltd., [1956] SCR 674). For this defence to apply, the defendant must have had no control over whatever occurred and its effect could not have been avoided even with the best effort and skill.

e) Illegality

If the claimant is suing on a contract that is illegal (i.e., it calls for a criminal interest rate), the defendant may ask the court to decline to enforce the illegal provision or possibly the entire contract. Depending on the circumstances, the court may consider modifying the contract to remove the illegality.

f) Self Defence

If the defendant honestly and reasonably believed that an assault or battery was imminent and used reasonable force to repel or prevent the assault or battery, the defendant may not be liable for any injuries or damage suffered by the claimant as a result (R. v Lavallee, [1990] 1 SCR 852; Wackett v Calder, [1965] 51 D.L.R. (2d) 598; [http://canlii.ca/t/gwh0b Brown v Wilson, [1975] BCJ No. 1177; R v Beckford, [1987] All ER 425).

g) Defence of Third Parties

The same general rules apply as for self-defence provided that the use of force is reasonable (Gambriell v Caparelli, [1974] 54 D.L.R. (3d) 661).

h) Mitigation

A claimant who alleges to have suffered harm has a duty to take reasonable actions to minimize their losses. This applies, for instance, if the claimant was injured in a personal injury matter or if the claimant suffered harm from a breach of contract. The defendant bears the onus of proving on a balance of probabilities that the claimant did not mitigate their losses. If it is found that the claimant did not take reasonable steps to minimize their losses, such as seeking medical care to assist with their injuries in a personal injury action, then the damages payable to the claimant may be reduced.

E. Filing a Reply

The Reply must be filed in the same registry where the Notice of Claim was filed (SCR, Rule 3(3)). There is a filing fee except where the defendant admits and agrees to pay the entire claim or obtains a fee waiver.

Generally, a Reply cannot be filed late however, in practice, the registry may allow a Reply to be filed late as long as the registrar has not made a default order or set a date for a hearing (SCR, Rule 3(4)(b)).

F. Serving a Reply

The registry will serve the Reply and Counterclaim, if any, on each of the other parties within 21 days (SCR, Rules 3(5) and 5(6)).

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