Small Claims Appeal (20:App L)

This information was taken with permission from the Small Claims Factsheet 14 produced by the Law Centre at the University of Victoria Faculty of Law.

There are two main grounds of appeal: an error of fact and an error of law. In order to appeal a decision from the Small Claims Court, one must argue that the Judge made either an error of fact or an error of law. The following provides a step by step guide on how to appeal a decision from Small Claims Court.

Step 1: Obtain a copy of the written Order made by the Small Claims Court Judge which is being appealed

• If you do not already have a copy of the Order that you want to appeal, you should go to the Court Registry in the Court House where the Order was made. Ask the Clerk for a copy. There may be a small photocopying fee which you will have to pay.

Step 4: Pay the $200 Filing Fee (See Supreme Court Civil Rules, BC Reg 168/2009, Appendix C) and $200 Security for Costs (See Small Claims Act, s 8(1))

• Also, deposit with the Court Registry the amount of money the Small Claims Court Judge ordered to be paid to the Respondent. Alternatively, bring an application to a Judge to reduce the amounts payable.
• If you cannot afford the filing fee, you may want to apply to a Supreme Court Judge to reduce the amount to be paid.
• To succeed in reducing the filing fee, you must be able to prove that you are indigent (see Supreme Court Civil Rule 20 -5). The BC Court of Appeal has considered the meaning of that word in a case called Johnston v. Johnston. The Court said "indigent" means "a person who has some means but such scanty means that he is needy and poor."
• The Court refused to approve any particular standard for determining whether a person is "indigent", and each case will be looked at individually. However, if you receive social assistance or persons with disabilities benefits and you prove this to the court, you are likely to be declared indigent.
• If you cannot afford to pay the security for costs (or the amount required to be paid to the Respondent by the Small Claims Court Order) you may want to apply to a Supreme Court Judge to reduce the amounts to be paid.
• It is not clear what test the Court will apply to succeed in an application to reduce these amounts. However, it is clear that evidence of an inability to pay the amount required will be vital.

Step 5: File the Notice of Appeal in Small Claims Court on the same day it was filed in Supreme Court

• When you file the Notice of Appeal, be sure to attach the Supreme Court Practice Direction, Standard Directions for Appeals from Provincial Court pursuant to the Small Claims Act.
• Section 7 of the Small Claims Act says that the Notice of Appeal must be filed in the Small Claims Court Registry on the same day that it is filed in the Supreme Court Registry. However, in a case decided in 1993 called First City Trust v. Bridges Café Ltd., the court recognized that in certain places in British Columbia the distance between the location of the Supreme Court Registry and the Small Claims Registry was so great as to make it very difficult to comply with Section 7. (See First City Trust v Bridges Café Ltd, [1993] BCJ No 1353). In that case, the filing took place on the next day. The Court held that the right of appeal would not be lost, even if the filing did not occur on the same day, as long as the Respondent was not prejudiced. Therefore, every reasonable effort should be made to file the Notice of Appeal in the Small Claims Court Registry on the same day or at the latest the day after the Notice of Appeal was filed in Supreme Court Registry.

Step 6: Within 7 days of filing the Notice of Appeal, serve the Notice of Appeal on each person who was a party to the lawsuit in Small Claims Court who will be affected by the Appeal.

• If you need more time to serve the Notice of Appeal, you must bring an application to a Supreme Court Judge. See Step 4 above.
• The Appellant can serve the Notice of Appeal, or can have a process server or a friend give the documents to the Respondent. If you decide on using a process server, look in the yellow pages under "Process Servers." To save money you should telephone several process servers to get quotes about how much it will cost to have the documents served because prices vary. You should also confirm that the process server will provide you with a sworn Affidavit of Service. An Affidavit of Service is a document that proves to the Court that the documents were served on the Respondent.
• The person who is going to serve the document should be given two copies of the document. They should compare the two copies to ensure that they are the same. This is because one copy will be given to the Respondent to be served and the second copy will be attached to an Affidavit of Service. In the Affidavit of Service the person serving the document will be swearing that they gave a copy of the document to the Respondent. Unless they first compare the documents, they will not know that the copy of the documents attached to the Affidavit of Service are the same as those given to the Respondent.
• If the person delivering the documents does not already know the Respondent, they should confirm that the documents are being given to the right person. This can be done simply by asking the name of the person being given the documents.
• After leaving a copy of each document with the Respondent to be served, the person serving the document must make a note of the time, date, and place (street address, city, and province) where the documents were served. This information will be needed to prepare an Affidavit of Service

Step 7: Apply to the Registrar for a date for hearing the Appeal

• That date cannot be less than 21 days after applying for the date. Before the Registrar will set a hearing date, the Appellant must prove the money to be deposited in Step 4 has been deposited (or an Order has been obtained which reduces the amount required to be deposited).

Step 8: Serve the Notice of Hearing of Appeal on the Respondent

• Also, serve any Order obtained under Step 4. Be sure to act quickly. There is a deadline which must be met (unless a Judge grants an Order extending the time). See Step 10 for instructions on how to serve the documents.

Step 9: The Appellant must order transcripts of the oral evidence given at the Small Claims Court trial and the Judge's reasons for judgment

• The Appellant must pay for a copy of the transcript for the Court and one for each party to the appeal. Act quickly.
• Transcripts are prepared by Court Reporters. You will have to make arrangements with the Court Reporters who work in your area of the Province to prepare the transcripts that you will need. To find out who may do the work in your area you may wish to speak to the Court Registry staff. Alternatively, you may wish to telephone Court Reporters listed in the yellow pages under "Reporters-Court & Convention."

Step 10: Within 14 days of filing the Notice of Appeal, the Appellant must prove to the Registrar that the transcript has been ordered and that the Notice of Appeal, Notice of Hearing of Appeal, and the Order reducing the amount of money to be paid under Step 4 (if any) have been served on the Respondent (See the Practice Direction of the Chief Justice regarding Standard Directions for Appeals from Provincial Court Pursuant to the Small Claims Act)

• To prove that the Notice of Appeal, Notice of Hearing of Appeal and Order (if any) have been served, you will need to file an Affidavit of Service. A process server usually will prepare and have sworn an Affidavit of Service as part of the work they do for you. If you or a friend serve the documents, you will have to prepare your own Affidavit of Service.

Step 11: Prepare a Statement of Argument

• Before you can prepare your Statement of Argument you must first pick up the transcript from the Court Reporter. Next, you must carefully read your copy of the transcript. You should make a note of the pages in the evidence or the Judge's reasons for judgment that contain the error in fact or law that you say should result in your appeal being successful. You should also look at copies of any exhibits which were given to the Judge during the Small Claims trial (like contracts, photos, reports, affidavits) to see if the exhibits contain evidence which would help your appeal.
• When completing a Statement of Argument, the first step is to decide whether parts of the Small Claims Order are acceptable, or whether you do not agree with the entire Order. Then, on the Statement of Argument, list what you do not agree with.
• Then, on the Statement of Argument you should list the evidence and the page and line numbers in the transcript, which will show the Supreme Court Judge where the Small Claims Court Judge made an error. This will become more clear to you if you view the sample and complete your Statement of Argument in the same way. The sample is based on the case described earlier in this Factsheet in which the Judge failed to apply the Limitation Act.
• Finally, in the portion of the Statement of Argument dealing with the nature of the Order you are seeking, you should state what you want the Judge to do. For example, if you brought a lawsuit in Small Claims Court and you lost, you may want the Supreme Court Judge to make an Order for what you sued for. So, if you were owed money and you sued for $8000 and you lost, you would ask in your Statement of Argument for an Order that the Respondent pay you $8000. On the other hand, if you were the Defendant in the same lawsuit and you lost at the trial, you might want an Order dismissing the claim.
• It would be very useful to get some legal advice when filling in the Statement of Argument.

Step 12: Within 45 days of filing the Notice of Appeal, the Appellant must:

1. File at the Supreme Court Registry the original copy of the transcript;
2. File a Statement of Argument; and
3. Serve a copy of the transcript and Statement of Argument on the Respondent. (See the Practice Direction of the Chief Justice regarding Standard Directions for Appeals from Provincial Court Pursuant to the Small Claims Act).

• After you have prepared the Statement of Argument make a photocopy for yourself and each Respondent. Take the original and each copy, plus a copy of the transcript to the Supreme Court Registry. The Registry will date stamp the Statement of Argument. You can then serve the Statement of Argument and transcript on the Respondent.

Step 13: At this point the Respondent will have to prepare a Statement of Argument.

• The Respondent must file the Statement of Argument and deliver a copy to the Appellant not less than 14 days before the hearing of the appeal. A Respondent's Statement of Argument is a document which sets out:
  1. What paragraphs the Respondent disagrees with in the Appellant's argument;
  2. Why the Respondent disagrees with the Appellant's argument; and,
  3. What Order the Respondent would like to see the Supreme Court Judge make.
• The Respondent should start to prepare the Respondent's Statement of Argument by first carefully reading the Appellant's Statement of Argument. Note where you think errors were made. The Respondent should then read the transcript and review all the exhibits and list the page and line on the transcript that supports the Respondent's case. Then fill in the form in a manner similar to that in which the Appellant's Statement of Argument was completed.
• It would be very useful to get some legal advice when filling in the Statement of Argument.

Step 14: Prepare for the hearing

• The hearing will not be a new trial. A Judge could order a new trial at the end of the hearing. But the trial would occur at a later date. So the hearing will have a different format than what you experienced at the trial. For example, no witnesses will be called to give evidence. Instead, what usually happens is that the Appellant first tells the Judge what the trial was about. The Appellant then tells the Judge what decision(s) made by the Small Claims Court Judge that the Appellant disagrees with and why. The Appellant may go through the Appellant's argument set out in the Statement of Argument. The Judge might read the portions of the transcript and the exhibits which the Appellant refers to in the Statement of Argument. The Judge may also ask the Appellant questions. The Appellant might conclude by noting the Order that the Appellant would like the Judge to make.
• It would then be the Respondent's turn. The Respondent might take the Judge through the Respondent's argument asset out in the Respondent's Statement of Argument. The Respondent would answer questions the Judge had. The Respondent would conclude by telling the Judge what Order the Respondent would like the Judge to make.
• To prepare for this type of hearing you should carefully review your Statement of Argument and any exhibits that you are going to refer to. You might also make notes of what you want to say.
• Small Claims appeals do not happen often. However, if you can watch one before your case occurs it will help to give you a good idea of what is likely to happen. To find out if an appeal will happen before your case goes ahead, call the Supreme Court Registry and ask to speak to the Trial Coordinator.

Step 15: Appear in Court

• Make sure you bring your copy of the Statement of Argument, transcript, and exhibits to Court with you on the day of your hearing. Arrive earlier than the time appointed for the hearing to begin.
• Find the trial list, which will usually be posted somewhere in the Court building. This list tells which cases are to be tried on that date and in which particular Courtroom they will take place. If your case is not on the list, then you should immediately check with the Court Clerk or Registry. Otherwise, go to the proper Courtroom and be seated in the gallery.
• When your case is called move forward to the Counsel table. Stand while speaking to the Judge. Introduce yourself to the Court. In Supreme Court a Judge is called "My Lord or My Lady" or "Your Lordship or Your Ladyship."
• The Judge probably will have read both Statements of Argument and will have some familiarity with the case. The Appellant will then present their case first, followed by the Respondent.

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