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Difference between revisions of "Small Claims Trials (20:XIV)"
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Small Claims Trials (20:XIV) (view source)
Revision as of 04:20, 17 August 2020
, 04:20, 17 August 2020no edit summary
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Vancouver (Robson Square) and Richmond hold simplified trials pursuant to Rule 9.1. Simplified trials are set for one hour before an adjudicator. An adjudicator will usually be a justice of the peace but may occasionally be a judge. A justice of the peace adjudicator is referred to as “Your Worship”. Simplified trials are held in the evening in Vancouver and during the day in Richmond. | Vancouver (Robson Square) and Richmond hold simplified trials pursuant to Rule 9.1. Simplified trials are set for one hour before an adjudicator. An adjudicator will usually be a justice of the peace but may occasionally be a judge. A justice of the peace adjudicator is referred to as “Your Worship”. Simplified trials are held in the evening in Vancouver and during the day in Richmond. | ||
The parties must each file a Trial Statement at least 14 days before the trial date and serve each other party at least 7 days before the trial (Rules 9.1(17) and (18)). There are penalties for failing to comply to comply with these timelines (Rule 9.1(19)). | The parties must each file a Trial Statement (Form 33) at least 14 days before the trial date and serve each other party at least 7 days before the trial (Rules 9.1(17) and (18)). There are penalties for failing to comply to comply with these timelines (Rule 9.1(19)). | ||
The trial does not need to comply with formal rules of procedure and evidence (Rule 9.1(20)). The adjudicator will ask questions and control the proceedings to stay within the one-hour timeframe. | The trial does not need to comply with formal rules of procedure and evidence (Rule 9.1(20)). The adjudicator will ask questions and control the proceedings to stay within the one-hour timeframe. | ||
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*Introduce yourself and state your name clearly. Remember to spell your surname for the record. | *Introduce yourself and state your name clearly. Remember to spell your surname for the record. | ||
*Use simple words; do not use “legalese”. | *Use simple words; do not use “legalese”. | ||
*Do not speak directly with opposing parties. Make submissions only to the judge and have | *Do not speak directly with opposing parties. Make submissions only to the judge and have them ask questions to the opposing party. | ||
*Never call witnesses by their given name. Use Mr., Ms., Miss, or Mrs. followed by their last name. | *Never call witnesses by their given name. Use Mr., Ms., Miss, or Mrs. followed by their last name. | ||
*A judge of the Provincial Court is referred to as “Your Honour” and the clerk is referred to as “Madame Clerk” or “Mister Clerk”. When referring to another party, use Mr., Ms., Miss, or Mrs. followed by their last name or refer to them according to their status in the claim (e.g., the defendant). | *A judge of the Provincial Court is referred to as “Your Honour” and the clerk is referred to as “Madame Clerk” or “Mister Clerk”. When referring to another party, use Mr., Ms., Miss, or Mrs. followed by their last name or refer to them according to their status in the claim (e.g., the defendant). | ||
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Witnesses can be led on matters that are not in issue (e.g., their name, where they work, etc.). Leading questions tend to be ones where the answer is either yes or no. Leading the witness at the start will help the witness to relax. | Witnesses can be led on matters that are not in issue (e.g., their name, where they work, etc.). Leading questions tend to be ones where the answer is either yes or no. Leading the witness at the start will help the witness to relax. | ||
When asking questions about issues that are in dispute or are related to a party’s claim or defence, that party should refrain from suggesting answers to the witness. The witness must be allowed to give evidence in | When asking questions about issues that are in dispute or are related to a party’s claim or defence, that party should refrain from suggesting answers to the witness. The witness must be allowed to give evidence in their own words. | ||
A witness must authenticate all documents that are entered into evidence unless the parties have agreed to their authenticity. When authenticating a document, pass three copies to the clerk: one for the judge, one for the court record, and another for the witness. Once the witnessed has identified the document, it will be entered into evidence and given an exhibit number. | A witness must authenticate all documents that are entered into evidence unless the parties have agreed to their authenticity. When authenticating a document, pass three copies to the clerk: one for the judge, one for the court record, and another for the witness. Once the witnessed has identified the document, it will be entered into evidence and given an exhibit number. | ||
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Once the direct examination of a witness has concluded, the witness may be cross-examined by the other party. There are two main purposes of cross-examination: to point out inconsistencies and omissions and to introduce facts or conclusions. If the witness has performed poorly or has not been damaging, it may not be necessary to cross-examine that witness. | Once the direct examination of a witness has concluded, the witness may be cross-examined by the other party. There are two main purposes of cross-examination: to point out inconsistencies and omissions and to introduce facts or conclusions. If the witness has performed poorly or has not been damaging, it may not be necessary to cross-examine that witness. | ||
Some questions can make the situation worse. A witness should never be asked to repeat what | Some questions can make the situation worse. A witness should never be asked to repeat what they said in “chief”. This only emphasizes the point and allows the witness to clarify or minimise weaknesses | ||
At some point in cross-examination, the opposing version of the facts should be put to the witness to allow them to comment. This is known as | At some point in cross-examination, the opposing version of the facts should be put to the witness to allow them to comment. This is known as the rule in ''[http://canlii.ca/t/h6kw6 Browne v Dunn]'' and, if not followed, can result in less weight being placed on a witness’ evidence or the recall of adverse witnesses. (See ''[http://canlii.ca/t/1f0lz Budnark v Sun Life Assurance Co. of Canada]'', 1996 CanLII 1397 (BCCA)). | ||
A witness should not allow the cross-examiner to misconstrue their evidence. If a question is unclear, the witness should ask for clarification. Only the question asked should be answered and additional information should not be volunteered. It is okay if the witness does not know the answer to a question; the witness should not guess the answer. | A witness should not allow the cross-examiner to misconstrue their evidence. If a question is unclear, the witness should ask for clarification. Only the question asked should be answered and additional information should not be volunteered. It is okay if the witness does not know the answer to a question; the witness should not guess the answer. | ||
'''NOTE:''' Parties should not speak to their witnesses after cross-examination and before or during re-examination about the evidence or issues in the case without the court’s permission. (See ''R. v Montgomery'', 1998 CanLII 3014 (BCSC)). If such a discussion occurs, the witness’ evidence may be tainted and the court may not believe it. | '''NOTE:''' Parties should not speak to their witnesses after cross-examination and before or during re-examination about the evidence or issues in the case without the court’s permission. (See ''[http://canlii.ca/t/1f6s8 R. v Montgomery]'', 1998 CanLII 3014 (BCSC)). If such a discussion occurs, the witness’ evidence may be tainted and the court may not believe it. | ||
=== 8. Re-Examination === | === 8. Re-Examination === | ||
If new evidence is introduced during cross-examination that was not reasonably anticipated in direct examination or if a witness’ answer needs to be clarified or qualified, the judge may give permission to re-examine the witness on the new evidence. (See ''R v Moore'',[1984] OJ No. 134; and ''Singh v Saragoca'', 2004 BCSC 1327 (CanLII) at para. 40). During re-examination, leading questions cannot be asked. | If new evidence is introduced during cross-examination that was not reasonably anticipated in direct examination or if a witness’ answer needs to be clarified or qualified, the judge may give permission to re-examine the witness on the new evidence. (See ''[http://canlii.ca/t/g945z R v Moore]'',[1984] OJ No. 134; and ''[http://canlii.ca/t/1j0fr Singh v Saragoca]'', 2004 BCSC 1327 (CanLII) at para. 40). During re-examination, leading questions cannot be asked. | ||
=== 9. Closing Arguments === | === 9. Closing Arguments === | ||
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When the evidence, submissions, and closing arguments are finished, the judge must give a decision. The judge may give a decision orally at the end of the trial, at a later date, or in writing (Rule 10(11)). The registrar will notify the parties of the date to come back to court for reasons or, if the decision is in writing, when it was filed in the registry (Rules 10(12) and (13)). | When the evidence, submissions, and closing arguments are finished, the judge must give a decision. The judge may give a decision orally at the end of the trial, at a later date, or in writing (Rule 10(11)). The registrar will notify the parties of the date to come back to court for reasons or, if the decision is in writing, when it was filed in the registry (Rules 10(12) and (13)). | ||
When payment from one party to another is part of the judgment, the judge must make a payment order at the end of the trial and ask the debtor whether | When payment from one party to another is part of the judgment, the judge must make a payment order at the end of the trial and ask the debtor whether they needs time to pay (Rules 11(1) and (2)). If the debtor does not require time to pay, the judgment must be paid immediately (Rule 11(7)). If time to pay is needed, the debtor may propose a payment schedule, and if the successful party agrees, the judge may order payment by a certain date or by instalments (Rules 11(2)(b), (3), and (4)). If the creditor does not agree to the debtor’s proposal, the judge may order a payment schedule or a payment hearing (Rule 11(5)). | ||
If a payment schedule is not ordered, the debt is payable immediately and the creditor is free to start collection proceedings (Rule 11(7)). | If a payment schedule is not ordered, the debt is payable immediately and the creditor is free to start collection proceedings (Rule 11(7)). | ||
{{REVIEWED LSLAP | date= August 16, 2020}} | |||
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