Small Claims Trial Preparation (20:XIII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 6, 2021.

Many, if not most, litigants find trials to be extremely unnerving. While a small claims trial is not predictable, preparing well in advance can help a party to avoid surprises, present a more compelling case, and alleviate fears about the process.

It is important to consider the merits of a claim before proceeding to trial. If there is no reasonable or admissible evidence, the claim is bound to fail (i.e., a statute prohibits recovery), or a limitation period has passed, the judge may impose a penalty. A penalty of up to 10 percent of the amount of the claim may be imposed if a party proceeds to trial without any reasonable basis for success (SCR, Rule 20(5)).

A. Trial Binder

A tabbed trial binder helps a party to effectively present its case at trial. A suggested format is:

Tab l:	Opening Statement: a brief summary of the issues in the case.
Tab 2:	Pleadings: all filed documents in chronological order with a list or index.
Tab 3:	Orders: all court orders that have been made.
Tab 4:	Claimant’s Case: anticipated evidence of the claimant and claimant’s witnesses, including reminders for the introduction of exhibits and blank pages for taking notes of the cross-examination.
Tab 5:	Defendant’s Case: blank pages for notes of the direct examination of defendant and defendant’s witnesses and anticipated cross-examination questions.
Tab 6:	Closing Arguments/Submissions: a brief review of the evidence, suggested ways to reconcile conflicts in the evidence, a review of only the most persuasive case law and its application to the facts.
Tab 7:	Case Law: prepare three copies of each case relied on (for you, the judge, and the opposing party). Carefully scrutinize the need for multiple cases to support your argument and limit yourself to as few as possible.
Tab 8:	Exhibits: you will need the original (the exhibit) and three copies (for you, the judge, and the opposing party). You need to be able to prove when, why, and by whom the exhibit was created, and also be able to argue why it is relevant (i.e. document plan or photograph).
Tab 9:	Miscellaneous: any additional documents, notes, lists, and correspondence.

B. Expert Witnesses

Expert witness testimony is not admissible unless their expertise and special knowledge are: (1) necessary for the court to understand the issues (i.e., the subject matter of the dispute is outside the knowledge of an ordinary person) (R. v Mohan, [1994] 2 SCR 9) or (2) provides useful context to difficult evidence for the benefit of the trier of fact Anderson v Canada (Attorney General), 2015 CarswellNfld 381 (NLTD)).

Whether expert evidence is necessary is a contextual consideration and it can sometimes be unclear when it is required; however, it can be very important as a failure to provide expert evidence when it is required can result in the failure of a party’s claim. If you are unsure about whether you need expert evidence for your claim, seek legal advice.

The expert’s testimony cannot include the expert’s assessment of the credibility of either the claimant or the defendant (Movahed v Leung, [1998] BCJ No. 1210; Brough v Richmond, 2003 BCSC 512; and Campbell v Sveinungsen, 2008 BCSC 381). Expert witness testimony is inadmissible if it relates to issues that the court is capable of understanding and analyzing without assistance (Sengbusch v Priest, [1987] 14 BCLR (2d) 26 (BCSC)).

1. Small Claims

Evidence may be given by an expert at trial or through a written report. An expert report must be the opinion of only one person. Written reports or notice of expert testimony must be served at least 30 days before trial (SCR, Rules 10(3) and (4)).

An expert witness report should include the resume or qualifications of the expert, a brief discussion of the facts of the case supporting the opinion or conclusion, the opinion or conclusion itself, and what was done to arrive at that conclusion.

An exception to the “in-person” rule for expert witnesses is permitted for estimates and quotes. A party may bring a written estimate for the repair of damage or a written estimate of the property value and present it as evidence at trial without calling the person who gave the estimate or quote. Parties should obtain more than one estimate or quote, especially if the sum of money involved is large. Estimates of repairs or value of the property are not considered to be expert evidence (SCR, Rule 10(8)) but must be served on all other parties at least 14 days before trial.

If the claimant does not serve the estimate in time, they can ask the trial judge for permission to present it anyway at trial. The claimant may or may not get permission to do so. The other party may ask for a trial adjournment to obtain his own estimate or quote. If the adjournment is granted, the claimant could be penalized and ordered to pay the other party’s expenses.

2. Civil Resolution Tribunal

Experts giving evidence at a CRT hearing are there only to assist the tribunal and should not advocate for a particular side or party (Civil Resolution Tribunal Rules [CRTR], Rule 8.3(7)). Expert evidence may only be relied on if the party relying on it provides it to all other parties, unless the tribunal decides otherwise, within 21 days of the case manager notifying the parties that facilitation has ended or some other deadline set by the case manager or tribunal member (CRTR, Rule 8.3(1)). In addition, the person providing it must provide their qualifications and it must be accepted by the tribunal as qualified by education, training, or experience to give that opinion (CRTR, Rule 8.3(1) and (2)).

A party providing written expert opinion evidence must also provide a copy of the expert’s invoice and any correspondence relating to the request opinion to every party (CRTR, Rule 8.3(4)). The tribunal can direct one or more parties to obtain expert opinion evidence and decide how the cost for these witnesses will be borne (CRTR, Rule 8.3(5) and (6)).

For motor vehicle injury claims, the tribunal will determine whether additional expert evidence is reasonably necessary and proportionate through a consideration of factors which include:

the type of bodily injury or injuries;
the nature of the claim to be decided by the tribunal;
the other evidence available;
the amount claimed;
the timeliness of the request; and
any other factors the tribunal considers appropriate (CRTR, Rule 8.4(1)).

In addition, for disputes filed under the CRT’s motor vehicle injury jurisdiction, the tribunal may order an independent medical examination on its own behest or at the request of one of the parties (CRTR, Rule 8.5(1)). A party who cannot afford to pay the cost of obtaining expert evidence in a motor vehicle injury dispute can ask that the tribunal order another party to pay, although this is contingent on the other party’s ability to pay and the likelihood that the requesting party’s claim will be successful (CRTR, Rule 8.6).

C. Witness Preparation

A party should review the evidence of its witnesses at least one week before trial and confirm the witnesses’ attendance. Witnesses should understand how a trial is conducted, the role of a witness, and the requirement that witnesses tell the truth.

1. Ensuring Attendance

Each party must ensure that its witnesses will attend court. If a party is not absolutely certain that a witness will attend, the witness should be personally served with Form 8: Summons to a Witness together with reasonably estimated traveling expense at least 7 days before the witness is required to appear (SCR, Rules 9(1)-(3)). The minimum traveling expenses must cover round-trip, economy fare such as bus fare to and from the court. While lost salary and other expenses do not have to be paid, a party should be reasonable and generous if possible to avoid making a witness bear the cost of litigation.

If a witness who has been served with a summons does not appear at trial, the summoning party may ask the judge for an adjournment or a warrant of arrest (Form 9; SCR, Rules 9(7) and 14)).

2. Telling the Truth

Giving evidence in court is a solemn and serious affair. Lying to the court can be a criminal offence and result in imprisonment. A witness must be well prepared to give evidence.

To emphasize the formality of the proceeding, witnesses must either swear an oath to or solemnly affirm that they will tell the truth. Sworn and affirmed testimony are equally regarded; the choice of whether to swear or affirm is the witness’.

Swearing an oath involves the witness placing their right hand on a religious text and swearing to tell the truth with reference to their chosen religion. While the bible is the default, several religious texts are available if pre-arranged with the court. The standard oath, “Do you swear that the evidence you are about to give the court, in this case, shall be the truth, the whole truth and nothing but the truth, so help you God?”, can be modified according to religious preference. A witness who does not want to swear a religious oath should give a solemn affirmation. The wording of the solemn affirmation is: “Do you solemnly affirm that the evidence you are about to give the court, in this case, shall be the truth, the whole truth and nothing but the truth?”.

A witness does not need to know the details of each party’s position. If a witness has been told the merits and legal arguments of each side, there is a risk that the witness may advocate for a party by including arguments while testifying. Such conduct is not persuasive, suggests that the witness may be biased, and may undermine the witness’ credibility.

3. Arranging an Interpreter

Trials and hearings are conducted in English. If a party or the party’s witness does not speak English, the party must arrange for an interpreter to be present. There is a list of interpreters available from the court registry however the court does not certify interpreters (Sandhu v British Columbia, 2013 BCCA 88). A party may use any person who is competent to reliably, accurately, and competently translate what is said in court; the judge has, however, discretion to reject the party’s choice of an interpreter.

An interpreter should be prepared to testify as to their experience and training. An interpreter who is related to a party may be rejected on the basis of potential bias and an interpreter who is inexperienced or untrained may be rejected on the basis of incompetence. If a party does not arrange an interpreter for a hearing or if the court rejects the interpreter, the party may be liable for a penalty and the reasonable costs of the other party. The party requiring an interpreter should ask the judge at the settlement or trial conference to decide whether the chosen interpreter is acceptable.

The party requiring the interpreter is responsible for the costs of the interpreter; these costs can be, however, recovered if the party is successful at trial.

4. General Advice for Witnesses

Discuss whether the witness will swear or affirm their testimony.
The microphones in court do not amplify; they are for recording purposes only. Face the judge when testifying and speak slowly, clearly, and loudly enough for the judge to hear.
Witnesses should wear appropriate business attire.
Witnesses should never guess, assume, or argue with the judge or one of the lawyers.
If a lawyer or other party says, “Objection”, or the judge starts speaking, the witness should stop testifying and wait for the judge’s instructions.
On direct examination, the witness should answer questions fully.
On cross-examination, the witness should answer as briefly and succinctly as possible.

D. Documentary Evidence

Each party should have the original and three copies of each document to be entered as an exhibit. The original will be marked as an exhibit and the other three are for the judge, the opposing party, and you to work from during the trial. Keep track of the exhibits and always refer to them by the correct number.

Before a document can be marked as an exhibit, it must be authenticated. The witness must identify its origins and that it is a true copy. Give the original document and a copy to the clerk and ask the clerk to show the original to the witness. Ask the witness to identify it: “I’m showing you a letter dated...”, “Do you recognize it?”, “Is this your signature?” or “Is it addressed to you?” When the witness has identified its origins and there are no objections, ask the judge to accept it as an exhibit: “May this be marked exhibit #1?”

NOTE: In exceptional circumstances, the judge may permit a witness to provide evidence by affidavit rather than testifying at trial (Withler and Fitzsimonds v Attorney General (Canada), 2005 BCSC 1044 (CanLII), para 18; and Sangha v Reliance, 2011 BCSC 371).

NOTE: A judge may examine and compare headshots or handwriting, but should only place very limited weight on their own judgment in these situations (R. v Nikolovski,[1996] CanLII 158 SCC; and R. v Abdi, [1997] CanLII 4448 Ont CA).

The CRT decides whether the hearing is held in writing, orally, or a combination of the two (CRT Rules (effective May 1, 2021), Rules 9.1). As such evidence rules differ from those at Court. Refer to Part 8 of the CRT Rules for information about evidence: https://civilresolutionbc.ca/wp-content/uploads/2021/04/CRT-Rules-in-force-May-1-2021.pdf.