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Difference between revisions of "Do You Have a Small Claim? (20:III)"
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Do You Have a Small Claim? (20:III) (view source)
Revision as of 19:06, 28 July 2017
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In order to have a legal claim, it must be recognised by the law. A frivolous claim is one that does not disclose a legal cause of action, is incapable of proof, or is otherwise bound to fail. A vexatious claim is one that is brought in order to annoy, frustrate, or antagonise the defendant. A claim may be both frivolous and vexatious. | In order to have a legal claim, it must be recognised by the law. A frivolous claim is one that does not disclose a legal cause of action, is incapable of proof, or is otherwise bound to fail. A vexatious claim is one that is brought in order to annoy, frustrate, or antagonise the defendant. A claim may be both frivolous and vexatious. | ||
If a claim is frivolous or vexatious, the claimant will lose and may be penalised up to 10% of the amount of the claim (''Small Claims Rule'' 20(5)). The penalty could be up to $ | If a claim is frivolous or vexatious, the claimant will lose and may be penalised up to 10% of the amount of the claim (''Small Claims Rule'' 20(5)). The penalty could be up to $8,750 on a $35,000 claim; it pays to research your cause of action and limit your claim to the proper amount. | ||
== A. Types of Claims & Remedies == | == A. Types of Claims & Remedies == | ||
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=== 4. Restitution === | === 4. Restitution === | ||
The law of restitution (See ''Garland v Consumers' Gas Co.'', 2004 SCC 25; ''Kerr v Baranow'', 2011 SCC 10; ''Skibinski v Community Living British Columbia'', 2012 BCCA 17) applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited. | The law of restitution (See ''Garland v Consumers' Gas Co.'', 2004 SCC 25; ''Kerr v Baranow'', 2011 SCC 10; ''Skibinski v Community Living British Columbia'', 2012 BCCA 17) applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited. The type of claim commonly pursued for a restitution remedy is referred to as “unjust enrichment” and is a complicated and evolving area of the law. A party planning to attain a restitution remedy should consult a lawyer, research what must be proved to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practising lawyer. | ||
=== 5. Statute === | === 5. Statute === | ||
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== B. Types of Damages == | == B. Types of Damages == | ||
Although the Small Claims Court has the jurisdiction to award $ | Although the Small Claims Court has the jurisdiction to award $35,000 (''BC Reg'' 179/2005), the monetary awards in most cases are significantly less. There must be a principled basis for an award of damages and it is helpful to separate a claim into the following types of damages. Ensuring that there is a legal basis for a claim is a critical step as there are penalties for proceeding through a trial in Small Claims Court on a claim that has no reasonable basis for success (''Rule'' 20(5)). | ||
=== 1. General Damages === | === 1. General Damages === | ||
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=== 2. Special Damages === | === 2. Special Damages === | ||
Special damages are those that are not presumed as a direct consequence of the act (See ''Stroms Bruks Aktie Bolag v Hutchison'', [1905] AC 515, at p 525). | Special damages are those that are not presumed as a direct consequence of the act (See ''Stroms Bruks Aktie Bolag v Hutchison'', [1905] AC 515, at p 525). In other words, special damages are generally quantifiable out-of-pocket expenses. For example, if a person has been put to expense and has receipts showing the amounts spent, these expenses would be classified as special damages. In a personal injury action, this could be medical bills, or in an action involving faulty equipment, repair bills could be classified as special damages. Each and every expense must be strictly proved with documents or other satisfactory evidence. | ||
=== 3. Nominal Damages === | === 3. Nominal Damages === | ||
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Statutory damages are those that arise from a breach by the defendant of an obligation found in a statute. The statute and relevant case law should be examined carefully to determine what damages may be claimed and the principles for assessing damages. | Statutory damages are those that arise from a breach by the defendant of an obligation found in a statute. The statute and relevant case law should be examined carefully to determine what damages may be claimed and the principles for assessing damages. | ||
=== 7. | === 7. Aggravated Damages === | ||
Aggravated damages provide additional compensation where the wrongdoer’s actions have caused mental distress, injury to dignity or injury to pride . Awards of aggravated damages are rare and depend heavily on the actions of the wrongdoer and the circumstances. Aggravated damages have previously been awarded in cases of aggravated assault and sexual assault . The claimant must provide actual evidence of mental distress that results from the wrongdoing of the defendant. | |||
A claimant who seeks | A claimant who seeks aggravated damages must ask for aggravated damages in the Notice of Claim. Aggravated damages cannot be awarded in addition to the $35,000 monetary limit. | ||
=== 8. | === 8. Punitive Damages === | ||
Punitive damages, also called “exemplary damages”, are reserved for conduct that is so abhorrent that the court must impose an additional penalty to punish the wrongdoer and discourage others from engaging in similar conduct. Punitive damages are rarely awarded. Punitive damages are not compensatory and the amount, if any, is in the complete discretion of the judge. | |||
A claimant who seeks punitive damages must ask for punitive damages in the Notice of Claim. Punitive damages cannot be awarded in addition to the $35,000 monetary limit. | |||
=== 9. Treble Damages === | === 9. Treble Damages === | ||
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*d) That, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage (''Limitation Act'', s 8). | *d) That, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage (''Limitation Act'', s 8). | ||
Special rules for discovery apply in various circumstances. For example, when a person signs a document acknowledging liability for a claim, discovery is deemed to occur on the date the acknowledgement is made unless the limitation period has already expired (''Limitation Act'', s 24(1)). Generally, there is an ultimate limitation period of 15 years from the date the basis of the claim occurred, regardless of when discovery happens (''Limitation Act'', s 21(1)). If it has been close to 2 years since the events giving rise to your claim occurred, act quickly and refer to Appendix F or consult a lawyer. | Special rules for discovery apply in various circumstances. For example, when a person signs a document acknowledging liability for a claim, discovery is deemed to occur on the date the acknowledgement is made unless the limitation period has already expired (''Limitation Act'', s 24(1)). Generally, there is an ultimate limitation period of 15 years from the date the basis of the claim occurred, regardless of when discovery happens (''Limitation Act'', s 21(1)). If it has been close to 2 years since the events giving rise to your claim occurred, act quickly and refer to Appendix F: Limitation Periods or consult a lawyer. | ||
Under this act, the limitation period depends on the type of claim and who the other party is. A claim may consist of several causes of action and each cause of action may have a separate limitation period. For example, if a claimant waits three years, they may be unable to bring a claim in negligence but may still be able to claim for breach of contract. Litigants should review the ''Old Limitation Act'' to determine which limitation period applies. | Under this act, the limitation period depends on the type of claim and who the other party is. A claim may consist of several causes of action and each cause of action may have a separate limitation period. For example, if a claimant waits three years, they may be unable to bring a claim in negligence but may still be able to claim for breach of contract. Litigants should review the ''Old Limitation Act'' to determine which limitation period applies. | ||
