Starting a Small Claim (20:V)
A. Civil Resolution Tribunal
The Civil Resolution Tribunal is designed to facilitate dispute resolution in a way that is accessible, speedy, economical and flexible. It relies heavily on electronic communication tools. It focuses on resolution by agreement of the parties first, and by the Tribunal’s binding decisions if no agreement is reached. Thus, there are several steps to the CRT process before actually applying for dispute resolution with the tribunal.
1. Self Help
A claimant must first attempt to resolve the dispute using the tribunal’s online dispute resolution services. The claimant may use the website’s resources to gather information and diagnose their claim.
a) Solution Explorer
The Solution Explorer, available on the CRT website, includes free legal information and self-help tools, such as guided pathways, interactive questions and answers, tools, templates and other resources. Applicants can apply to the CRT for dispute resolution right from the Solution Explorer.
Small Claims Solution Explorer website: https://civilresolutionbc.ca/how-the-crt-works/getting-started/small-claims-solution-explorer/
Strata Solution Explorer website: https://civilresolutionbc.ca/how-the-crt-works/getting-started/strata-solution-explorer/
b) Online Negotiations
The parties may then engage in an online negotiation that is monitored but not mediated or adjudicated. Online negotiations connect parties in order to encourage negotiated settlement. This tool will guide the parties through a structured, low cost negotiation phase.
2. Dispute Resolution – Case Management
If a claimant’s attempt at online dispute resolution has been unsuccessful, the claimant must formally request resolution of the claim through the tribunal and pay all required fees. A claimant cannot request tribunal resolution if there is a court proceeding or other legally binding process to resolve the claim and a hearing or trial in that court or other legally binding process has been scheduled or has occurred to decide that claim.
If the other party does not agree to tribunal resolution or does not reply to the request for tribunal resolution, the tribunal will not resolve the claim unless the defendant is required to participate by either a statute or a court order. Despite the consent of both parties, the tribunal retains authority to refuse to resolve a claim or dispute and may exercise this authority at any point before making a final decision resolving the dispute. The general authority for refusing to resolve a claim or dispute is set out in s. 11 of the CRTA.
a) Applying for Dispute Resolution
To request dispute resolution by the tribunal an applicant must provide to the tribunal a completed Dispute Application Form, and pay the required fee.
(1) Application Costs and Where to Apply
Applications may be made online or a paper application form can be requested by calling 1-844-322-2292. Fees vary slightly by method of application. The cost to apply for dispute resolution online is $125, while the cost by paper application is $150.
If you are using a paper application, it may be sent to the CRT by:
PO Box 9239 Stn Prov Govt
Victoria, BC V8W 9J1
(2) After an Application is Received
After an initial review of the Dispute Application Form, the tribunal will provide to the applicant one of the following:
a) a request for more information about the application;
b) a Dispute Notice to provide to each respondent; or
c) an explanation as to why the Dispute Notice will not be issued
Once a Dispute Notice is issued by the tribunal the applicant must:
a) provide a Dispute Notice and a blank Dispute Response Form to every respondent named in the dispute within 90 days from the day the Dispute Notice is issued by
the tribunal;
b) complete the Proof of Notice Form;
c) provide the completed Proof of Notice Form to the tribunal within 10 days of providing notice; and
d) provide any other information or evidence about the Dispute Notice or notice process requested by the tribunal.
(3) Providing Notice to Respondents
A Dispute Notice can be provided to a respondent by e-mail, fax, registered mail, courier delivery requiring a signature, or by delivering it in person. Notice by e-mail is acceptable proof that the notice requirements are met only if the respondent confirms receipt by sending a reply by e-mail to the applicant by the date shown on the Dispute Notice. Additional rules regarding notice delivery and when notice is considered accepted can be found on the CRT website found at:
https://civilresolutionbc.ca/wp-content/uploads/2017/05/CRT-rules-effective-June-1-2017.pdf (Rules 50-71).
Despite the rules, the tribunal may determine that the applicant has provided notice to a respondent using another method than permitted by the tribunal. The proof of notice form may be found at this link: https://civilresolutionbc.ca/wp-content/uploads/2017/05/CRT-ProofOfNotice-Person.pdf.
A Dispute Notice is invalid if it not provided to a respondent by the deadline on the Dispute Notice, unless the tribunal extends the deadline for providing notice. An applicant can ask the tribunal for more time to provide notice to a respondent by completing the applicable section of the Request for Directions on How to Provide Notice Form and providing it to the tribunal before the deadline for providing notice has passed.
If you have unsuccessfully tried to deliver a Dispute Notice to a respondent and would like to request an alternative method to deliver the notice or an extension of time see: http://civilresolutionbc.ca/wp-content/uploads/2017/02/CRT-Alternative-Service-Extension-Form.pdf.
b) Permitted Methods of Service
(1) Individual Under 19 Years Old
The applicant must provide the Dispute Notice (by any above method) to that respondent’s parent or guardian unless the tribunal orders otherwise.
(2) Individuals Over 19 Years Old with Impaired Mental Capacity
If an applicant knows that a respondent has a committee of estate, a representative appointed in a representation agreement, or an attorney appointed in an enduring power of attorney, the applicant must provide the Dispute Notice to that person An applicant must also provide the Dispute Notice to the respondent or the person with whom the respondent normally resides, and the Public Guardian and Trustee.
(3) Companies defined by the Business Corporations Act
An applicant can serve these parties by the following methods: by registered mail, courier delivery requiring a signature or delivery in person to the address shown for the registered office with the Registrar of Companies; by delivery in person at the place of business of the company, to a receptionist or a person who appears to manage or control the company’s business there; or, by delivery in person to a director, officer, liquidator, trustee in bankruptcy or receiver manager of the company.
(4) Extraprovincial Corporation defined by the Business Corporations Act
An applicant can serve these parties by the following methods: by registered mail, courier delivery requiring a signature or delivery in person to the address shown for the head office in the office of the Registrar of Companies if that head office is in British Columbia; by registered mail, courier delivery requiring a signature or delivery in person to the address shown in the office of the Registrar of Companies for any attorney appointed for the extraprovincial company; by delivery in person to the place of business of the extraprovincial company, to a receptionist or a person who appears to manage or control the company’s business there; or, by delivery in person to a director, officer, liquidator, trustee in bankruptcy or receiver manager of the extraprovincial company.
(5) Society incorporated under the Societies Act
An applicant can serve these parties by the following methods: by registered mail, courier delivery requiring a signature or delivery in person to the address for service with the Registrar of Companies; or by delivery in person to a director, officer, receiver manager or liquidator of the society.
(6) Partnerships
An applicant can serve these parties by the following methods: by registered mail, courier delivery requiring a signature or delivery in person to a partner; or, by delivery in person to the partnership’s place of business, to a receptionist or to a person who appears to manage or control the partnership’s business there.
(7) A trade union, municipality, extraprovincial society, unincorporated association, or a party outside Canada
An applicant must complete the Request for Directions on How to Provide Notice Form and provide it to the tribunal, and complete the steps and follow the directions provided by the tribunal.
An applicant must also provide the Dispute Notice to the Insurance Corporation of British Columbia (ICBC) by: sending a copy of the Dispute Notice by registered mail or courier to 800 – 808 Nelson Street, Vancouver, BC V6Z 2H1; or, delivering a copy of the Dispute Notice in person to an employee at any ICBC claim centre.
c) Facilitated Dispute Resolution (FDR)
The purpose of the case management phase is to facilitate an agreement between the parties and to prepare for the tribunal hearing should it be required. The Preparation for Tribunal Hearing phase may be conducted at the same time as the Facilitated Dispute Resolution phase.
A case manager will determine which FDR processes are appropriate for a particular dispute and has the authority to require the parties to participate. They can make adjustments or modifications to the facilitation directions at any time during facilitation. FDR may be conducted in person, in writing, by telephone, via videoconferencing, via email, via other electronic communication tools, or a combination of these methods. These negotiations will be mediated by the case manager.
The case manager can direct any party in a dispute to provide to the tribunal and to every other party any information and evidence, including explanations of that information or evidence, information about a party’s ability to pay an amount reached by agreement or ordered by the tribunal, responses to another party’s information and communications, and that party’s position on any proposed resolution of a claim in the dispute. During facilitation, the facilitator can refer any matter requiring a decision or order to a tribunal member, including a party’s non-compliance with directions.
At any time during facilitation, the case manager can provide a non-binding neutral evaluation of the claims including any representations, demands, offers, information or evidence relating to a claim, or views on how the tribunal would likely resolve the dispute if it were to be resolved by the tribunal decision process. A case manager’s non-binding neutral evaluation is covered by the confidentiality and non-disclosure rules. If the parties reach a resolution by agreement on any or all of the claims in their dispute, they can ask the tribunal to make a consent resolution order to make the terms of their agreement an order of the tribunal, and pay the required fee. If the parties agree to resolve some, but not all, claims by agreement, the case manager can record their draft agreement based on the terms agreed upon by the parties, and provide a draft consent resolution order to a tribunal member immediately, or along with the Tribunal Decision Plan.
If the case manager decides the parties cannot resolve their dispute by agreement, they will inform the parties that activities aimed at finding a resolution by agreement are over, and ask the applicant to pay the tribunal decision fee. If the applicant does not pay the tribunal decision fee, a respondent can pay it. If no party pays the tribunal decision fee within the time period set by the case manager the tribunal may refuse to resolve or dismiss the dispute. If a party pays the tribunal decision fee, the process to prepare the dispute for a tribunal decision will begin.
d) Preparation for Tribunal Hearing
If the FDR process does not result in a settlement, the case manager will assist the parties in preparing for adjudication by ensuring the parties understand each other’s positions and by directing the exchange of evidence. Most of this exchange and communication will occur online. To prepare the dispute for a tribunal decision, the case manager can support the parties in identifying and narrowing the claims or issues that will be decided in the tribunal decision process, identifying the facts relevant to resolving the claims or issues in the tribunal decision process, and taking any other steps to prepare for the tribunal decision process.
As well, the case manager will give the parties a Tribunal Decision Plan, which sets out required information, steps, and timelines to prepare the dispute for the tribunal decision process. Once the case manager has given the Tribunal Decision Plan to the parties, they cannot add any other party or claim without permission from the tribunal. The tribunal may at any time order that a party be added to the dispute and make directions as to the process to be followed.
If a party does not comply with the Tribunal Decision Plan the tribunal may do any of the following:
a) the tribunal can decide the dispute relying only on the information and evidence that was provided in compliance with the Tribunal Decision Plan;
b) the tribunal can dismiss the claims brought by a party that did not comply with the Tribunal Decision Plan; and
c) the tribunal can require the non-complying party to pay to another party any fees and other reasonable expenses that arose as a result of a party’s non-
compliance with the Tribunal Decision Plan.
Facilitation ends when the case manager determines that the Tribunal Decision Plan is complete.
B. Settlement Letter
The fastest and least expensive way to resolve a dispute is to tell the other person what you are claiming from them and why you are claiming it. If the other person agrees with the amount or responds in a manner that leads to a settlement, both parties will save the time, effort, expense, and uncertainty of a lawsuit.
Bona fide attempts to settle may involve concessions and admissions of liability. For example, a claimant may offer to settle for less than the claim to account for the cost, time investment, and risk of going to trial. A defendant, for example, may admit liability but dispute the amount owed. Whenever parties can agree on certain points, the likelihood of settlement increases.
Because of the strong public interest in settlement, these bona fide settlement attempts are protected by settlement privilege. This means that, if the matter is not settled, any reductions in the claim or admissions made disappear and cannot be used against the party who made them (See Schetky v Cochrane, [1918] 1 WWR 821 (BCCA); Greenwood v Fitts (1961), 29 DLR (2d) 260 (BCCA)). It is prudent to include the words “WITHOUT PREJUDICE” in correspondence involving bona fide attempts to settle to indicate that the party sending the document wishes to rely on settlement privilege; settlement privilege will still apply, however, even if “WITHOUT PREJUDICE” is not included.
Settlement letters should be brief, factual, and clearly state the amount claimed even if that amount exceeds $25,000. Settlement letters should have a courteous tone as a letter that invokes a hostile reaction from the recipient will be counter-productive. A party writing a settlement letter should never threaten criminal or regulatory penalties; extortion is a criminal offence.
C. Identifying the Defendant(s)
When drafting a notice of claim and throughout the litigation process, it is important to stick to the relevant facts. Court is not a forum for airing grievances that do not give rise to a claim. For example, in a claim for breach of contract, the fact that the defendant acted rudely is generally not relevant to the claim. Including irrelevant facts confuses the issues, wastes time, raises tensions, and makes it more difficult to successfully prove the claim. A good rule to follow for each type of claim is to include only the facts necessary to satisfy the legal test for that type of claim; brief is better.
It is important to make your cause of action (e.g., negligence, breach of contract, etc.), type of damages, and amount of damages very clear. Do not let the judge guess what you want.
1. Suing a Business
a) Corporation
A corporation is a legal entity that is separate from its shareholders and employees. It is identified by a corporate designation such as Incorporated, Limited, Corporation, their abbreviations Inc., Ltd., or Corp., or their French equivalent following the business name.
A corporation may register a sole proprietorship or partnership and operate under that name. To sue such a company, a claimant should include both the corporate name and the name of the proprietorship or partnership: e.g., 0123456 BC Ltd. dba Joe’s Bakery. The letters dba stand for “doing business as”. Variations such as “coba” meaning “carrying on business as” are also acceptable.
A corporation can enter into contracts and can sue or be sued. Generally speaking, a corporation’s shareholders, officers, directors, and employees are not liable for the actions or liabilities of the corporation or their own actions while acting within the scope of their office or employment. A person who feels that a shareholder, director, officer, or employee of a corporation might be liable should obtain legal advice.
Corporations may be either provincially or federally incorporated. A federal company is incorporated under the Canada Business Corporations Act, RSC 1985, c. C-44 [CBCA]. A BC corporation is incorporated under the Business Corporations Act, SBC 2002, c 57 [BCBCA]. Corporations may also be registered under the laws of the other provinces and territories.
Because a corporation can have multiple locations, every corporation, including non-BCBCA corporations, doing business in BC must provide an address where it can be served with notices of claim and other important documents. A claimant must perform a company search to obtain the current registered address for the defendant corporation. (Rule 1(2.1); Rule 5(2.1). See Small_Claims_Legislation_and_Resources_(20:App_E) Appendix E for instructions on conducting a company search.) This address must be listed as the corporation’s address on the notice of claim form.
b) Partnership
A partnership can exist between one or more persons and is governed by the Partnership Act, RSBC 1996, c 348 [PA]. A person includes a corporation.
The rules for determining whether a partnership exists are set out in s 4 of the PA. Generally speaking, all partners are personally liable for the debts of the business: s 7 of the PA. As it is impossible to tell whether a business is a partnership or a sole proprietorship from the name alone, a claimant should perform a company search to learn the true structure of the business as well as the name and address of each partner.
The proper way to list each partner on the notice of claim is:
Jane Doe d.b.a. XYZ Partnership
John Doe d.b.a. XYZ Partnership
ABC Company Ltd. d.b.a. XYZ Partnership
NOTE: “d.b.a.” stands for “doing business as”
NOTE: One should be careful to not confuse partnerships with limited partnerships (LP) or limited liability partnerships (LLP).
c) Sole Proprietorship
A sole proprietorship allows a single person or corporation to do business under a business name. Sole proprietorships are registered under Part 4 of the PA. A sole proprietor is personally responsible for the debts of the business.
As it is impossible to tell whether a business is a partnership or a sole proprietorship from the name alone, a claimant should perform a company search to learn the true structure of the business as well as the name and address of the proprietor.
The proper way to list a sole proprietor on the notice of claim is:
Jane Doe d.b.a. XYZ Company
John Doe d.b.a. XYZ Company
ABC Company Ltd. d.b.a. XYZ Company
NOTE: “d.b.a.” stands for “doing business as”
d) Other
For other forms of businesses such as limited partnerships (LP), limited liability partnerships (LLP), and unlimited liability corporations (ULC), legal advice is recommended.
2. Suing a Person over 19 Years Old
Do not use titles such as Mr., Mrs. or Ms. Use full names, not initials (i.e., “Dr. D. Smith” should be “Doris Smith”). Claimants may sue more than one defendant if the claim against each defendant is related. Divide the “To” space in half and use one half for the name and address of each defendant; alternatively, the notice of claim filing assistant makes it convenient to add multiple defendants.
3. Suing a Society
A society is a type of not-for-profit corporation registered pursuant to the Society Act, RSBC 1996, c 433. The procedure and principles for suing a society are the same as for corporations. A company search is required to ascertain the society’s registered address (Rule 1(2.2); Rule 5(2.2)).
4. Suing I.C.B.C.
A claimant who is suing for the deductible portion of an insurance policy must name both the driver and the registered owner of the vehicle as defendants rather than ICBC. A claimant who only has the number plate of the vehicle can obtain the owner’s name by writing a letter to ICBC’s Vehicle Records Office.
ICBC Insurance Enquiries
151 West Esplanade
North Vancouver, BC V7M 3H9
Telephone: (604) 661-2233 or 1(800) 464-5050
Note: If a motor vehicle has caused personal injury or property damage or a claimant has been denied coverage by ICBC, refer to the entire Law Students’ Legal Advice Program’s “Automobile Insurance (ICBC)” guide. Claims involving motor vehicles and motor vehicle insurance can be complicated; it is not possible to cover all possibilities in this Small Claims guide.
A claimant should be alert to the following:
- a claim involving motor vehicle insurance may have a shorter limitation period;
- parties other than the driver (e.g., the owner of the vehicle) may also be liable;
- a lawsuit for Part 7 (No Fault) benefits should be filed if appropriate;
- ICBC may be liable if damage is caused by an unidentified (i.e., hit and run) (See Insurance (Vehicle) Act, RSBC 1996, c 231, s 24), under, or uninsured motorist (Insurance (Vehicle) Act, RSBC 1996, c 231, s 20); and
- personal injury claims are very difficult to value and it may be appropriate to consider bringing the claim in Supreme Court if the injuries are more than trivial.
Many personal injury lawyers work on a contingency basis. A claimant may wish to consult a personal injury lawyer prior to filing the claim to ensure that the amount claimed is reasonable and all parties are properly listed on the Notice of Claim.
Whether or not ICBC is named as a defendant, in a claim for damages caused by a vehicle in British Columbia, a claimant must serve ICBC with a copy of the Notice of Claim and a blank Reply form in the same manner as serving a corporate defendant (Insurance (Vehicle) Act, RSBC 1996, c 231, s 22).
Where ICBC is properly named as a defendant, its correct legal name is the Insurance Corporation of British Columbia. It is a special type of corporation and the usual corporate designation such as Inc. is not required.
5. Suing the Government
a) Federal Government
The federal government should be named as either “Attorney General of Canada” or “Her Majesty in right of Canada”. If an agency of the Crown is to be sued and if a federal Act permits, the agency may be sued in the name of that agency. (See s 23(1) of the Crown Liability and Proceedings Act, RSC 1985, c C-50; Goodhead v The Law Society Of BC, 1997 CanLII 4299 (BC SC)).
b) Provincial
The provincial government should be named as “Her Majesty the Queen in right of the Province of British Columbia”. (See s 7 of the Crown Proceeding Act, RSBC 1996, c 89).
It should be noted that the CRT cannot resolve disputes where the claim is against the government or the government is a party to the dispute. See Section IV. C.: Civil Resolution Tribunal for more information on the jurisdiction of the CRT.
6. Suing the Police
The “Royal Canadian Mounted Police” is not a legal entity that can sue or be sued. (See Dixon v Deacon Morgan McEwen Easson, 1989 CanLII 2786 (BC SC)). A claimant who wishes to sue for damages arising from the conduct of a police officer should sue the individual police officers and the Minister of Justice and Attorney General. (See Amezcua v Taylor, 2010 BCCA 128 (CanLII); Roy v British Columbia (Attorney General), 2005 BCCA 88 (CanLII)). A claimant who is suing a municipal police force should sue the individual police officers as well as the municipality employing the police officers. It is critical that a claimant provide written notice to the city within two months of the event giving rise to the cause of action. (See Local Government Act, RSBC 1996, c 323, s 286(1)).
7. Suing a Municipality
Municipalities are special corporations incorporated by letters patent. Depending on its size, a municipality is referred to as a village, town, city, or a district municipality. (See Local Government Act, RSBC 1996, c 323, s 17(1)). When letters patent are issued, the name of the incorporated municipality is published in the BC Gazette. (See Local Government Act, RSBC 1996, c 323, s 15(1)(a)). A claimant should search the BC Gazette to obtain the legal name of the municipality.
8. Suing a Young or Mentally Incompetent Person
A minor, also called an infant, is a person who is under 19 years of age at the time the claim is filed. Mentally incompetent persons as well as minors are persons with a legal disability. When suing such persons, Rule 20-2 of the Supreme Court Civil Rules applies, with the exception of Rule 20-2(4) (which does not apply in Small Claims cases). (See Small Claims Rule 17(18)). Persons with a legal disability must be represented by a litigation guardian. With some limitations, a litigation guardian can be any person ordinarily resident in British Columbia.
If the claim involves personal injury, Rule 20-2(4) of the Supreme Court Civil Rules applies and requires that the litigation guardian act by a lawyer unless the litigation guardian is the Public Guardian and Trustee.
A party cannot take a step in default against a person with a legal disability without the court’s permission. A settlement with a party under a legal disability is not binding unless the court approves it.
These rules also apply to a party who becomes mentally incompetent at any point in the proceeding.
9. Suing an Insurance Company other than ICBC
Claims against insurers for coverage can be complicated. A claimant should research the law surrounding uberrimae fidei, an insurer’s duty to defend, and an insurer’s duty to indemnify. A claimant should be aware that claims against insurers may have a shorter limitation period.
10. Suing an Unknown Person
If a claimant does not know the identity of one or more parties, the claimant can still file a claim using a misnomer. For example, the claimant would list the unidentified defendant as either John Doe or Jane Doe as the case may be. If there are multiple unknown parties, the claimant could add a number to each misnomer (e.g., John Doe 1; John Doe 2). Misnomer also applies to unknown companies.
A claimant should research the law surrounding misnomer and ensure that both the unidentified party and its actions are described in as much detail as possible.
If the party is unknown because of a motor vehicle hit and run, the claimant may sue ICBC as a nominal defendant.
C. Can the Defendant(s) Pay?
One cannot squeeze blood from a stone. If a defendant has insignificant assets or income, the defendant may have no means to pay a judgment; such a person is “judgment-proof” and a claimant with an uncollectible judgment is said to be holding an “empty judgment”. A claimant should consider whether it is worth the time, expense, and stress of suing a judgment-proof defendant.
A judgment is enforceable for ten years after it is issued (See Limitation Act, RSBC 1996, c 266; Limitation Act, SBC 2012, c 13, s 7); after this time, unless it is renewed, the judgment expires and becomes uncollectible. On some occasions, a previously judgment-proof defendant will “come into money” by receiving an inheritance or winning the lottery. This is a rare occurrence and a claimant must invest time and effort to monitor the defendant’s circumstances over the ten years that the judgment is enforceable. A more common change in a judgment-proof defendant’s circumstances is the defendant securing a higher-paying job.
A claimant should also consider the likelihood of the defendant going bankrupt. If the defendant goes bankrupt, the claimant may recover little or none of the amount of the judgment. For more detail on bankruptcy, see “Enforcement of a Judgment”.
A claimant must decide whether or not to sue before the limitation period expires. If the limitation period expires, a claimant cannot later sue on that cause of action if the defendant’s circumstances change.
D. Drafting the Notice of Claim
The Notice of Claim is the document that starts an action in Small Claims Court. The Notice of Claim form is comprised of several sections and each section must be completed. The form can be either typed or handwritten. Hard copies are available from the court registry (see Appendix A) and an electronic copy is available online. Where possible, a claimant should type the Notice of Claim form.
A sample Notice of Claim is attached (see Appendix C) and may be a helpful guideline when drafting a Notice of Claim.
1. “From”
This section must contain the claimant’s full legal name, address, and telephone number. The claimant has an on-going duty to notify the court registry of any changes to the information in this section. Failure to provide the registry with current and accurate contact informationmay result in the claimant’s claim being dismissed and/or the claimant being liable for costs or penalties.
2. “To”
The claimant must list the full legal name, address for service, and, if available, the telephone number for each defendant. If additional space is required, the claimant may attach a piece of paper listing this information for each defendant. Alternatively, the Notice of Claim filing assistant can neatly add multiple defendants onto one Notice of Claim form.
Failure to list the proper legal name of a defendant may result in the claimant’s claim against that defendant being dismissed or the judgment against that defendant being unenforceable. If the limitation period (see Appendix F) has already expired, the claimant may not be able to correct the error.
3. “What Happened?”
In this section, the claimant must list the facts that support the claimant’s cause(s) of action and the damages that the claimant has suffered. The claimant should adhere to the following general rules:
- Don’t plead evidence – state what you will prove, not how you will prove it
- Don’t plead law – unless you have a statutory cause of action
- Use paragraphs – use one paragraph to state each fact that you will prove -- Number each paragraph beginning at 1
- Claimant must prove every fact – therefore, stick to material facts
In this section, one must set out the facts that give rise to the cause of action, and the loss or damage that resulted. This description should be brief, but must inform the opposing party of the case to be met and give the judge an outline of what will be argued. The Notice of Claim (Form 1) has little space for the facts, but the facts can continue onto another piece of paper. The additional facts must be attached to each copy of the Notice of Claim. In general, the pleadings should be brief, complete, and as accurate as possible.
The facts as alleged must give rise to a legal cause of action. After the facts, state the legal cause of action(s) that entitle you to the relief you are seeking. If there is more than one cause of action, plead the strongest one and plead the other ones in the alternative. For example, in a claim for a bad car repair, a claimant can sue for breach of contract and negligence. A pleading might read: “In addition, or in the alternative, the claimant claims damages as a result of the defendant’s negligent repair of the automobile”.
The pleadings should describe:
- a) the relationship of the parties (e.g., buyer and seller); and
- b) the dates, places, and details of amounts, services, or practices involved.
Claimants will usually be bound by the facts in the pleadings. If the facts or legal basis need to be changed, the claimant may be able to amend the Notice of Claim (Rule 8).
When there is more than one defendant, the claimant should make it clear whether their liability is joint, several, or joint and several. This distinction affects enforcement of a judgment and any subsequent actions arising out of the same cause. Liability stated as joint and several is more inclusive.
If liability is joint, the defendants must be sued as a group however the claimant can recover the full amount from any or all of the defendants.
Where liability is several, the claimant can sue any or all of the defendants however each defendant is obligated to repay only his own portion of the debt.
Where liability is joint and several, the claimant may sue any or all of the defendants and may recover the full amount from any or all of the defendants. The debtors can then litigate among themselves to apportion the debt between them.
4. “Where?”
The claimant should enter the name of the municipality as well as the province where the cause of action arose. If the cause of action arose outside of British Columbia, the claimant must state in the “What Happened?” section how the court has jurisdiction over the claim. (See Dreambank, supra.)
5. “When?”
List the date or dates when the cause(s) of action arose. Unless the date is very clear or the limitation period is about to expire, stating the month and year is sufficient. It is prudent to state the date as follows:
- when the date is known: “On or about August 15, 2012”;
- if only the month is known: “In or about August 2012”; or
- if the cause(s) of action arose over time: “From about May 2012 to August 2012”.
6. “How Much?”
This is where the claimant describes the remedy. In most cases, this will be an amount of money. However a claimant may request an alternative remedy. For example, the claimant could request the return of an item or, in the alternative, the value of it, as well as damages. A claimant who wants items returned should consider what condition they will be in, and whether he or she really wants them back.
a) Interest
If there is no mention of interest in a contract between the parties, the court will award interest to the successful claimant from the date the cause of action arose until the date of judgment. (See Court Order Interest Act, supra, s. 1(1); Red Back Mining Inc v Geyser Ltd, 2006 BCSC 1880 (CanLII)). This is called “pre-judgment interest”. Interest in a claim for debt is calculated from the date the debt became due and, in a claim for damages, from the date the damages arose.
The court sets the interest rate every six months and publishes a table listing the rates applicable to each six-month period. The Notice of Claim should indicate a claim for “Interest pursuant to the Court Order Interest Act” but leave the amount area blank; the registry will calculate the amount according to the table.
Note: While a claimant may be paying a higher interest rate on a credit card or loan as a result of the defendant’s actions, the claimant is limited to the pre-judgment interest rate set by the court unless the parties have expressly agreed that interest will be paid.
If the parties have agreed on a rate of interest, the Notice of Claim should indicate a claim for contract interest, the applicable interest rate, and the date from which the interest began to accrue. The amount of interest that has accrued up to the date of filing should be included on the Notice of Claim as well as the amount of interest that accrues each day. It is important to note that a claim for contract interest is, in substance, a claim for contractual damages. Accordingly, the claim for contract interest together with the principal amount must be within the Small Claims Court’s monetary jurisdiction. If a claim for contract interest has or could cause the total claim to exceed the court’s monetary jurisdiction, it would be prudent to state on the Notice of Claim that the claimant abandons the amount necessary to bring the claim within the Small Claims Court’s monetary jurisdiction.
If the parties have agreed that interest will be paid but have not agreed on a rate of interest, the rate of interest is five per cent per annum. (See Interest Act, RSC 1985, c I-15, s 3).
Generally, even if the parties agree to a rate of interest expressed with reference to a period other than one year (e.g., 2% per month), a claimant can only recover a maximum of five per cent per annum unless the contract expressly states a yearly rate or percentage of interest that is equivalent to the other rate (e.g., 24% per annum). (See Interest Act, RSC 1985, c I-15, s 4).
It is a criminal offence to receive, or enter into an agreement to pay or receive, interest at a rate that exceeds 60% per annum. (See Criminal Code, RSC 1985, c C-46, s 347(1)). Interest has a broad definition and includes fees, fines, penalties, commissions, and other similar charges including costs relating to advancing credit.
If the judgment is not paid immediately, post-judgment interest may be awarded. The court has the discretion to vary the rate of interest or to set a different date from which the interest commences. (See Court Order Interest Act, supra, s 8).
b) Claims between $5000-$35,000
In order to sue in Small Claims Court for a claim exceeding $35,000, the claimant must state, “The Claimant abandons the portion of any net judgment that exceeds $35,000” (Rules 1(4) and (5)). At any time prior to trial, the claimant can decide to sue for the full amount and apply to transfer the claim to the Supreme Court of British Columbia (see Der v Giles, 2003 BCSC 623). Once the trial has been heard, however, the abandonment is likely permanent.
There is an exception to the $35,000 limit. If more than one claimant has filed a Notice of Claim against the same defendant(s) concerning the same event, or, if one claimant has filed Notices of Claim against more than one defendant concerning the same event, the judge may decide each claim separately, even though the total of all the claims (not including interest and expenses) exceeds $35,000 (Rule 7.1(4)). Such claims often have a trial at the same time although the claimant(s) must request this.
c) Filing Fees
Filing fees are those fees paid to file the Notice of Claim and are either $100 or $156 unless the fees have been waived. The registry staff will enter this amount. Filing fees are recoverable if the claimant is successful.
Please note that fees for the CRT are different. (See Appendix I: Civil Resolution Tribunal Fees)
d) Service Fees
Service fees are an estimate of the cost of serving the defendant(s). The amount varies based on the method of service and the number of defendants. The registry staff will enter this amount. Service fees are recoverable if the claimant is successful; however, as the claimed amount is only an estimate, a judge has discretion to either increase or decrease the allowed service fees.
e) Other Expenses
Unless a judge or the Registrar orders otherwise, an unsuccessful party must pay to the successful party (Rule 20(2)):
- any fees the successful party paid for filing any documents;
- reasonable amounts the successful party paid for serving any documents; and
- any other reasonable charges or expenses directly related to the proceedings. (See Rule 20(2); Bagry v. Aoujla, [1994] B.C.J. No. 1212 (QL) (Prov. Ct.); Gaudet v. Mair, [1996] B.C.J. No. 2547 (QL) (Prov. Ct.); Johnston v. Morris, 2004 BCPC 511).
An example of a reasonable expense related to the proceedings is a company search. Another example is costs to purchase cases used in argument. (See Faulkner v. Sellars (1998), 9 C.C.L.I. (3d) 247 (B.C. Prov. Ct.)). For additional case examples, please see Rule 20(2); Bagry v. Aoujla, [1994] B.C.J. No. 1212 (QL) (Prov. Ct.); Gaudet v. Mair, [1996] B.C.J. No. 2547 (QL) (Prov. Ct.); Johnston v. Morris, 2004 BCPC 511. If such expenses are known at the time of filing, they should be stated on the Notice of Claim. If they occur afterwards, the successful party may request them at the conclusion of the trial.
Although legal fees cannot be recovered, legal disbursements may be recoverable if they fit one of the criteria above.
Parties are not compensated for the time they spend preparing for or attending court.
E. Filing a Notice of Claim
1. Cost
The cost to file a notice of claim is $100 if the claim is for $3,000 or less. The cost increases to $156 for claims above $3,000 and up to $25,000. A person who is unable to afford the filing or other fees may apply to the registrar for a fee waiver (Rule 20(1)) by filing an Application to the Registrar and a Statement of Finances.
2. Where to File (Rule 1(2))
A claimant must file the notice of claim at the Small Claims registry nearest to where:
- the defendant lives or carries on business (see DreamBank.; or
- the transaction or event that resulted in the claim took place.
This can sometime be unclear in the case of contracts that are executed by fax or email or in other claims, such as negligence, where the conduct complained of took place in a number of locations. (See DreamBank; Rudder v Microsoft Corp., 1999 CanLII 14923 (ON SC); Simpson-Sears Ltd. v. Marshall (1979), 12 B.C.L.R. 244 (S.C.)). A claimant may wish to obtain legal advice if there is any uncertainty regarding where to file.
If two different Small Claims registries have jurisdiction, the claimant should choose the one that is most convenient. If the defendant disputes the claimant’s choice, the defendant can file an application for change of venue and a judge will decide the most appropriate location.
A company can live in multiple locations including where it is registered, where it carries on business, and where its records are kept. (See DreamBank; Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28).
3. How to File
The claimant must file at least four complete and identical copies of the notice of claim. One copy is for the court, one is for the claimant, one is a service copy, and one is required for each defendant.
Once the notice of claim has been filed and stamped by the registry and the fee, unless waived, has been paid, the claimant must, within one year, serve a copy on the defendant.
F. Serving a Notice of Claim
A copy of the filed Notice of Claim together with a blank Reply form (available from the registry) must be served on each defendant (Rule 2(1)). A claimant has 12 months from the date of filing to serve the defendants (Rule 2(7)). If more time is required, the claimant can apply to the registrar for an extension (Rules 2(7), 16(2)(a), and 16(3)).
The permissible methods for serving a defendant depend on who the defendant is. The table below sets out how each category of defendant can be served. If a defendant is evading service or, after a diligent search, cannot be found, a claimant may apply to a judge for an order for substitutional service.
| Defendant | Permitted Methods of Service |
|---|---|
| Individual Over 19 Years Old (Rule 2(2)) |
|
| Individual Under 19 Years Old (Rules 2(6) and 18(2)) |
|
| Individual outside BC |
|
| BC Corporation (Rule 2(3)) |
|
| Extraprovincial Corporation | See Rule 2(4) |
| Unincorporated Company (Proprietorship) (Rule 2(2)) |
|
| Unincorporated Company (Rule 2(5)) (Partnership) |
|
| Company outside BC | See Rule 18(6.1) |
| Strata Corporation (See Strata Property Act, SBC 1998, c 43, s 64) |
|
| Society (See Society Act, RSBC 1996, c 433, s 12; Rule 18(3)) |
|
| Unincorporated Association (Rule 18(5)) |
|
| Incorporated Association (See Cooperative Association Act, SBC 1999, c 28, s 28)
Housing Cooperative Community Service Cooperative |
|
| Trade Union (Rule 18(5)) |
|
| Municipality (Rule 18(1)) |
|
| ICBC |
|
| Estate (See Wills Estate and Succession Act, SBC 2009, c13, s 61(1)) |
|
If a defendant is served incorrectly, a claimant cannot obtain a default order until after the defendant has been properly served. If the defendant has been served incorrectly but files a Reply, the claimant does not have to serve the defendant again.
If the claim involves a motor vehicle accident, the other driver and ICBC must be served, even though ICBC may not be named as a defendant. (See Insurance (Vehicle) Act, RSBC 1996, c 231, s 22).
1. Personal Service
Personal service is effected when the claimant gives the notice of claim and blank reply form to the defendant in a manner that ensures that the nature of the document is brought to the defendant’s attention. For example, a notice of claim inside an unmarked and sealed envelope or rolled inside of a newspaper is not properly served.
If a defendant knows the nature of the document and has touched it, service has likely been effected. If the defendant knows of the nature of the document and refuses to touch it, the claimant may place it at the defendant’s feet.
Personal service can be effected by any adult who is not under a legal disability. A claimant may wish to have a friend or a process server serve the Notice of Claim.
NOTE: Personal service should not be used as a means of intimidating or exacting revenge on a defendant. While it may seem satisfying to personally serve the defendant, alternative methods should be employed if there is a risk of a heated exchange. Such an exchange may lead to physical violence and, in any event, negative encounters in the course of the litigation will be counterproductive to settlement discussions.
2. Registered Mail
Registered mail is a service offered by Canada Post. In order to prove that a document was served by registered mail, a party must either obtain a copy of the signature obtained by Canada Post at the time of delivery or obtain a printout of the delivery confirmation from http://www.canadapost.ca.
3. Substitutional (Alternate) Service
When, after a diligent search, a claimant is unable to locate the defendant or the defendant is evading service, the claimant can apply to the registrar (Rule 16(3)) for permission to serve the defendant in another manner (Rules 16(2)(e) and 18(8)). An affidavit and a hearing are not required.
The alternate method of service that is ordered should be sufficient to bring the claim to the defendant’s attention. Suggested methods of alternate service include a Facebook message, email, facsimile, regular mail, and text message to all known addresses and phone numbers for the defendant. Other methods include posting the Notice of Claim on the defendant’s door. The claimant should seek an order requiring service in as many methods as will be reasonably necessary to make the defendant aware of the claim.
G. Proof of Service
Once the defendant has been served, the claimant should complete a Certificate of Service (Form 4) and file it along with the service copy of the Notice of Claim. If there are multiple defendants, the claimant should file a Certificate of Service and service copy of the Notice of Claim for each defendant. Other methods of written proof of service are available (Rule 18(14)). Rarely, a judge may allow sworn oral evidence of personal service (Rule 18(15)).
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