Small Claims Applications and Procedures Pre-Trial (20:IX)

A. Offers to Settle

If a party rejects a formal offer to settle, the trial judge may order a party who rejected an offer tosettle to pay a penalty of up to 20 per cent of the offer159. This can happen in one of two ways. If the defendant makes an offer that the claimant rejects and, at trial, the claimant is awarded an amount including interest and expenses that is equal to or less than the offer, the penalty is deducted160. If the claimant makes an offer the defendant rejects, and the claimant is awarded a sum including interest and expenses that equals or exceeds the claimant’ s offer, the penalty is added onto the award161.

A formal offer to settle must be made using Form 18 and served on the party to whom the offer is made as if it were a Notice of Claim162.The party offering to settle may also fill out a certificate of service. Neither the Form 18 nor the certificate of service are filed at the registry; if the party making the offer wishes the penalties to apply, these forms should be presented to a judge for the first time after a decision is given at trial.

A formal offer must be made within 30 days of the conclusion of a:

• settlement conference;
• mediation under either Rule 7.2 or 7.4; or
• trial conference.

Once the first of any of these hearings has concluded and 30 days have elapsed, formal offers cannot be made without the permission of a judge163.

B. Withdrawing a Claim, Counterclaim, Reply, or Third Party Notice

A party may withdraw a claim, counterclaim, reply, or third party notice at any time164. To do so, a party must file a notice of withdrawal165 at the registry and then promptly serve the notice of withdrawal on all parties who had been previously served with the claim, counterclaim, reply, or third party notice166. A Notice of Withdrawal may be served by ordinary mail or personal service167.

Once a pleading is withdrawn, it cannot be reinstated, used, or relied upon without the permission of a judge168.

Withdrawing a claim does not result in the dismissal of a counterclaim. The counterclaim may still proceed, unless it is also withdrawn169.

C. Adjournments and Cancellations

Once a date for a hearing, settlement conference, or trial has been set, any party can apply for an adjournment or to cancel the hearing170.

If seeking an adjournment, try to first obtain the consent of the opposing party prior to applying to a judge. If consent is given, Form 17 must be filed in the registry as soon as possible.

A trial will only be adjourned if a judge is satisfied that it is unavoidable and if an injustice will result to one of the parties if the trial proceeds171. There is a $100 fee172 for adjournments where the application is made less than 30 days before a trial and notice of the trial was sent 45 days before the trial’s date173. The fee must be paid within 14 days of the granting of the adjournment174 or else a judge may dismiss the claim, strike out the reply, or make any order he or she deems fair175.

D. Pre-Judgment Garnishment

If the claim is for debt, a “garnishing order before judgment” may be issued at the same time a Notice of Claim is filed. Except for wages and interest, almost any debt can be garnished before a judgment. Since injustice can sometimes occur from the procedure, few garnishing orders are issued before judgment. Practically, the court will grant a garnishing order before judgment in only certain circumstances, for instance where the claimants will be unable to collect if they succeed176.

To obtain a pre-judgment garnishing order, the claimant must file an affidavit stating that a Notice of Claim has been filed, the date of its filing, the nature of the cause of action, the amount of the debt, claim, or demand, and the true amount owing after discounts and deductions177.

If the registry grants the order, the claimant must serve both the garnishee and the defendant178. If the garnishee is a bank, the garnishing order must be served on the branch where the account is located179. If the garnishee is a credit union, the order must be served on its head office. A separate order must be obtained for each garnishee. The Garnishee must pay the greater of the amount owed to a Defendant and the amount shown on the garnishing order to the Court Registry. It is extremely important to find out the correct legal name of the Garnishee. This is because if you use the wrong name on the Garnishment documents, the Garnishee can refuse to pay to the Court money owed to the Defendant. If the Garnishee is a company, a search at the BCCorporate Registry Office would be useful.