Difference between revisions of "Responding to a Small Claim (20:VI)"

== 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, provide the Dispute Response Form to the tribunal and pay the required fee (See Appendix I: Civil Resolution Tribunal Fees). A Dispute Response Form can be found at the following link:  

https://civilresolutionbc.ca/wp-content/uploads/2017/06/FORM-Response-Individual-May-2017.pdf.

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. See Section VII. Default Order for more information

For more information on Counterclaims or adding Third Parties through the CRT see Section VI. B.: Possible Strategies.

Many lawsuits arise or continue because a wrongdoer has not apologised to the party who was wronged. The ''Apology Act'', SBC 2006, c 19 allows a person to apologise for a wrongful act or failure to act without the apology becoming an admission of liability. A sincere apology can often avert litigation or form an important foundation for a settlement.  

If a defendant pays the entire amount of the claim directly to the claimant (Rule 3(1)(a)), the defendant need not file a Reply. The defendant should retain a receipt as proof of payment and request that the claimant withdraw 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.  

If the entire claim is admitted but the defendant requires time to pay or only part of a claim is admitted (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 (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 [[Enforcement_of_a_Small_Claims_Judgment_(20:XVI) | Section XVI: Enforcing a Judgment]]).  

A defendant who opposes all or part of the claim (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 (Rule 20(5)).  

Whether or not a defendant agrees or disagrees with all or a part of the claim, the defendant can counterclaim (Rule 4(1)). 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 on 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 (Rule 20(5)).  

The relationship between a counterclaim and a set-off should be noted. (See ''Johnny Walker Bulldozing Co Ltd v Foundation Co of Canada Ltd'', 1997 CanLII 3726 (BCSC); ''Gwil Industries Inc v Sovereign Yachts (Canada) Inc'', 2002 BCSC 713 (CanLII); ''Lui v West Granville Manor Ltd'', 1985 CanLII 155 (BC CA)). A counterclaim is a standalone claim and it is possible for a defendant to succeed on a counterclaim when the claimant has been unsuccessful. A set-off is a defence. If the claimant is successful, a set-off will reduce the amount payable to 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.  

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

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

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

      (a) indicating in a completed Dispute Response Form that the respondent will add at least one claim in the dispute;

      (b) completing an Additional Claim Form;

      (c) providing the Additional Claim Form to the tribunal; and

      (d) paying the required fee to add a claim (see Appendix I: Civil Resolution Tribunal Fees).

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, he  or she may make a claim against that other party by completing a Third Party Notice (Form 3). If a settlement conference, mediation session, or a trial conference has not been held, leave of the court is not required (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 (Rule 5(1)(b)).  

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 (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 (Rule 5(3)); all of these documents are to be served in the same manner as serving a Notice of Claim (Rule 5(4)). A defendant has only '''30 days''' after filing to serve the third party and file a certificate of service (Form 4; Rule 5(5)) at the registry. 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 (Rule 5(5.1)).  

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

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

      (a) indicating in a completed Dispute Response Form that the respondent will apply for dispute resolution against the other person,

      (b) completing an Additional Claim Form identifying the other person and describing any claims against that person,

      (c) providing the Additional Claim Form to the tribunal, and

      (d) paying the required fee to add a claim (see Appendix I: Civil Resolution Tribunal Fees).

== B. Time Limits ==

Unless a defendant pays the amount of the claim directly to the claimant and asks the claimant to withdraw the claim (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.'''

*a defendant served with a Notice of Claim (Rule 3(4));  

*the claimant served with a counterclaim (Rule 4(3.1)(b)); or  

*a third party served with a third party notice (Rule 5(7)).  

If the defendant was served inside British Columbia, a Reply must be filed within '''14 days after service''' (Rule 3(4)). If the defendant was  served outside British Columbia, a Reply must be filed within '''30 days after service''' (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.

== C. Defences ==

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

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. (See ''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.  

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. (See ''R. v Lavallee'', [1990] 1 SCR 852; ''Wackett v Calder'', [1965] BCJ No 129; ''Brown v Wilson'', [1975] BCJ No. 1177; and ''R v Beckford'', [1987] All ER 425).  

The same general rules apply as for self-defence provided that the use of force is reasonable. (See ''Gambriell v Caparelli'', [1974] OJ No. 2243).  

The Reply must be filed in the same registry where the Notice of Claim was filed (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 (Rule 3(4)(b)).

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