Difference between revisions of "Starting a Small Claim (20:V)"

{{REVIEWED LSLAP | date= August 13, 2020}}

As of June 1, 2017, the Civil Resolution Tribunal now has jurisdiction for small claims matters of $5000 or less. If you are wanting to bring a claim for between $5001 – 35,000, then it should be brought through Small Claims Court.  

Directions for filings have been significantly affected by the ongoing COVID-19 pandemic. Restrictions the provincial court registry placed on the services provided and documents that could be filed were removed on July 13, 2020. Because of the fluid public health situation, the functioning of small claims proceedings is subject to ongoing change. For the latest updates, we recommend you contract the court registry or visit: https://www.provincialcourt.bc.ca/COVID19.

Conversely, the CRT is fully functional and remained so throughout the pandemic.

== A. Settlement Letter ==

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 ''[http://canlii.ca/t/gb4m0 Schetky v Cochrane]'', [1918] 1 WWR 821 (BCCA); ''[http://canlii.ca/t/gwdv3 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.  

== B. Identifying the Defendant(s) ==

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.  

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.  

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.

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 [https://justice.gov.bc.ca/FilingAssistant/ filing assistant] makes it convenient to add multiple defendants.

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)).

'''Note: If a motor vehicle has caused personal injury or property damage or a claimant has been denied coverage by ICBC, refer to [[Introduction to ICBC Automobile Insurance (12:I)| Chapter 12 - ICBC Motor Vehicle Insurance]] and [[Introduction to Motor Vehicle Law (13:I)|Chapter 13 - Motor Vehicle Law]]. Claims involving motor vehicles and motor vehicle insurance can be  complicated; it is not possible to cover all possibilities in this Small Claims guide.'''

 

*if the accident occurred after April 1st, 2019, the dispute resolution through the CRT will be available for damage claims up to $50,000, benefits disputes, fault determinations and “minor injury” determinations;

*parties other than the driver (e.g., the owner of the vehicle) may also be liable;

*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.

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; ''[http://canlii.ca/t/1f4rl Goodhead v The Law Society Of BC]'', 1997 CanLII 4299 (BC SC)).  

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.  

The “Royal Canadian Mounted Police” is not a legal entity that can sue or be sued. (See ''[http://canlii.ca/t/1dtx9 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 ''[http://canlii.ca/t/28lkh Amezcua v Taylor]'', 2010 BCCA 128 (CanLII); ''[http://canlii.ca/t/1jsn7 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)).

Municipalities are special corporations incorporated by letters patent. A municipality means, in relation to a regional district, a municipality in the regional district and, in the case of the Metro Vancouver Regional District, includes the City of Vancouver (See ''Local Government Act'', RSBC 2015, c 1, Schedule - s 1). When letters patent are issued, the name of the incorporated municipality is published in the BC Gazette (See ''Local Government Act'', RSBC 2015, c 1, s 780(1)(a)). A claimant should search the BC Gazette to obtain the legal name of the municipality.

It is critical that a claimant provide written notice to the city within '''two months''' of the time, place and manner in which the damage has been sustained. As well, all legal actions must be commenced within 6 months after the cause of action first arose (See ''Local Government Act, RSBC 2015, c 1, ss 735 and 736). For more information, please see [[Introduction to Public Complaints (5:I)|Chapter 15 - Public Complaints]].

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, the following rules of the ''Supreme Court Civil Rules'', BC Reg 168/2009 [SCCR] apply:  

*Rule 25-2 (10) and (11) when delivering notice of applying for an estate grant or for the resealing of a foreign grant in relation to the estate

Persons with a legal disability must be represented by a litigation guardian (See SCCR, Rule 20-2(2)).   With some limitations, a litigation guardian can be any person ordinarily resident in British Columbia.

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.

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.  

== C. Can the Defendant(s) Pay? ==

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. Civil Resolution Tribunal ==

The Civil Resolution Tribunal is designed to facilitate dispute resolution in a way that is accessible, speedy, economical and flexible for amounts $5,000 and under. 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.

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.  

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.   

If parties do not resolve the claim during the case management phase, the claim will proceed by tribunal hearing (Civil Resolution Tribunal Act, SBC 2012, c 25, s 30 [CRTA]). If a party to a dispute fails to comply with an order of the tribunal made during the case management phase, the case manager may (after giving notice to the non-compliant party) refer the dispute to the tribunal for resolution, where the tribunal will: a) proceed to hear the dispute; b) make an order dismissing a claim in the dispute that is made by the non-compliant party; or c) refuse to resolve a claim of the non-compliant party or refuse to resolve the dispute.  

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 CRTA s 11.

Applications may be made online or a paper application form can be found online at https://civilresolutionbc.ca/resources/forms/#apply-for-crt-dispute-resolution. Fees vary slightly by method of application. The cost to apply for dispute resolution online is $75-125, while the cost by paper application is $100-150.

*a request for more information about the application;

*a Dispute Notice to provide to each respondent; or

*an explanation as to why the Dispute Notice will not be issued

*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  

*complete the Proof of Notice Form;

*provide the completed Proof of Notice Form to the tribunal within 10 days of providing notice; and

*provide any other information or evidence about the Dispute Notice or notice process requested by the tribunal.  

A Dispute Notice can be served on a respondent by e-mail, registered mail, courier delivery requiring a signature, or personal delivery. 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 here: https://civilresolutionbc.ca/wp-content/uploads/2020/04/CRT-Rules-in-force-May-1-2020.pdf.

===== (3) Companies defined by the Business Corporations Act =====

*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 =====

===== (5) Society incorporated under the Societies Act =====  

*by delivery in person to a director, officer, receiver manager or liquidator of the society.

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.

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. The information shared during facilitated mediation is confidential and is generally not allowed to be included in the Tribunal Decision Plan.

If the negotiation and facilitation 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. Parties must include in the Tribunal Decision Plan all relevant evidence they possess regarding their claim, including evidence which does not support their position . Common kinds of evidence include photos or videos, contracts, correspondence regarding the dispute, and statements from witnesses or experts. All evidence and materials relied on must be translated into English . More information about evidence can be found at https://civilresolutionbc.ca/tribunal-process/starting-a-dispute/evidence/. In particular, the CRT has specific rules regarding expert evidence. See [[Small_Claims_Trial_Preparation_(20:XIII)#|Section XIII.B.: Expert Witnesses]].

For motor vehicle injury claims, pertinent medical information should also be provided. Note that for this class of dispute there are limits on both the amount of expert evidence that can be submitted and the amount of money that the CRT can order one party to reimburse another for fees and expenses. A party wishing to adduce expert evidence to support a motor vehicle injury claim should consult https://civilresolutionbc.ca/expert-evidence-and-expenses-in-mva-personal-injury-disputes/ for more information. For strata disputes, copies of strata meeting minutes and any complain letters and/or bylaw infraction letters should be included in the Tribunal Decision Plan.

*the tribunal can decide the dispute relying only on the information and evidence that was provided in compliance with the Tribunal Decision Plan;

*the tribunal can dismiss the claims brought by a party that did not comply with the Tribunal Decision Plan; and

*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.

== E. 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 [[Small_Claims_Registries_(20:App_A)|Appendix A]]) and an electronic copy is [http://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms available online].  

Where possible, a claimant should type the Notice of Claim form. A sample Notice of Claim is attached (See [[Sample_Notice_of_Claim_for_Small_Claims_(20:App_C)|Appendix C]]) and may be a helpful guideline when drafting a Notice of Claim.  

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 information may result in the claimant’s claim being dismissed and/or the claimant being liable for costs or penalties.  

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 [https://justice.gov.bc.ca/FilingAssistant/ 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 [[Limitation_Periods_(20:App_F) | Appendix F]]) has already expired,  the claimant may not be able to correct the error.