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Difference between revisions of "Suing Someone in Small Claims Court"
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Suing Someone in Small Claims Court (view source)
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{{REVIEWEDPLS | reviewer = [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group|date= August 2017}} {{Dial-A-Law TOC|expanded = courts}} | {{REVIEWEDPLS | reviewer = [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group|date= August 2017}} {{Dial-A-Law TOC|expanded = courts}} | ||
To | To sue in Small Claims Court, you file a “notice of claim” in court, and then let the party you’re suing know about it. Learn the steps in the process. | ||
== | ==What you should know== | ||
===What claims you can bring in Small Claims Court=== | ===What claims you can bring in Small Claims Court=== | ||
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====The dollar amount==== | ====The dollar amount==== | ||
Small Claims Court generally deals with '''claims for $5,000 to $35,000'''. | Small Claims Court generally deals with '''claims for $5,000 to $35,000'''. | ||
Claims for up to $5,000 must usually be taken to the online [https://civilresolutionbc.ca/ Civil Resolution Tribunal]. However, Small Claims Court may deal with claims under $5,000 in certain circumstances, such as where the tribunal considers the case to be too complex. | Claims for up to $5,000 must usually be taken to the online [https://civilresolutionbc.ca/ Civil Resolution Tribunal]. However, Small Claims Court may deal with claims under $5,000 in certain circumstances, such as where the tribunal considers the case to be too complex. | ||
Claims for more than $35,000 generally go to the [http://www.courts.gov.bc.ca/supreme_court/index.aspx BC Supreme Court]. You can make a claim for more than $35,000 in Small Claims Court, but if you do you must abandon the amount over $35,000. | Claims for more than $35,000 generally go to the [http://www.courts.gov.bc.ca/supreme_court/index.aspx BC Supreme Court]. You can make a claim for more than $35,000 in Small Claims Court, but if you do you must abandon the amount over $35,000. | ||
====The subject==== | ====The subject==== | ||
Claims brought in Small Claims Court must involve: | Claims brought in Small Claims Court must involve: | ||
Small Claims Court does '''not''' have the power to deal with several types of claims, including claims to do with an interest in land, defamation, wills and estates, and lawsuits against the federal government. | * debt or damages, | ||
For more on where certain types of claims can and can’t be brought, see our information on [[Starting a Lawsuit | * recovery of personal property, or | ||
* agreements about services or personal property. | |||
Small Claims Court does '''not''' have the power to deal with several types of claims, including claims to do with an interest in land, defamation, wills and estates, and lawsuits against the federal government. | |||
For more on where certain types of claims can and can’t be brought, see our information on [[Starting a Lawsuit|starting a lawsuit]]. | |||
{| class="wikitable" | {| class="wikitable" | ||
|align="left"|'''Tip''' | |align="left"|'''Tip''' | ||
Have a claim arising out of a '''motor vehicle | Have a claim arising out of a '''motor vehicle acciden'''t? For accidents taking place in BC after April 1, 2019, injury claims up to $50,000 must be brought to the [https://civilresolutionbc.ca/ Civil Resolution Tribunal]. | ||
|} | |} | ||
===There’s a time limit to sue=== | ===There’s a time limit to sue=== | ||
The [http://canlii.ca/t/8qx3 law in BC] creates a time window to bring a legal action. For most claims, that window (or | The [http://canlii.ca/t/8qx3 law in BC] creates a time window to bring a legal action. For most claims, that window (or '''limitation period''') is '''two years'''. Once two years have passed after a claim is “discovered," it’s too late to start a lawsuit. | ||
The claim is said to be '''discovered''' on the first day you knew, or reasonably ought to have known, all the following: | The claim is said to be '''discovered''' on the first day you knew, or reasonably ought to have known, all the following: | ||
*an injury, loss or damage occurred, | |||
*it was caused at least partly by an act or '''omission''' (something neglected or left undone), | * an injury, loss or damage occurred, | ||
*the act or omission was that of the person you’re suing, and | * it was caused at least partly by an act or '''omission''' (something neglected or left undone), | ||
*a court proceeding would be an appropriate way to seek a remedy. | * the act or omission was that of the person you’re suing, and | ||
* a court proceeding would be an appropriate way to seek a remedy. | |||
For example, let’s say you buy a new high performance bicycle. Three months after you get it, the front brakes fail, and you’re in a serious crash. An expert you hire determines the brakes were faulty. The limitation period starts on the day you discovered the brakes were faulty and realized (or reasonably ought to have realized) it was the bike maker that was responsible for the damage. | For example, let’s say you buy a new high performance bicycle. Three months after you get it, the front brakes fail, and you’re in a serious crash. An expert you hire determines the brakes were faulty. The limitation period starts on the day you discovered the brakes were faulty and realized (or reasonably ought to have realized) it was the bike maker that was responsible for the damage. | ||
For more on limitation periods, see our information on [[Starting a Lawsuit | For more on limitation periods, see our information on [[Starting a Lawsuit|starting a lawsuit]]. | ||
==The steps in the process== | ==The steps in the process== | ||
===Step 1. Prepare the notice of claim=== | ===Step 1. Prepare the notice of claim=== | ||
A lawsuit in Small Claims Court begins with a '''notice of claim'''. You must complete the notice form, file it with the court registry, and deliver it to the party you’re suing. | A lawsuit in Small Claims Court begins with a '''notice of claim'''. You must complete the notice form, file it with the court registry, and deliver it to the party you’re suing. | ||
You can complete the notice of claim by: | You can complete the notice of claim by: | ||
In the notice of claim, briefly describe what happened that led to your claim. You don’t need to tell everything about your case. Later, at a settlement conference or trial, you will have an opportunity to fully explain your side of the story. | * using the court’s online [https://justice.gov.bc.ca/FilingAssistant/index.do;jsessionid=INTr4U2EBho-T3WXyhyIFEcE.08878bd1-3cd1-3830-87f0-9372399e9d53 Filing Assistant], which walks you through the steps of completing the form, | ||
* downloading the notice of claim form (Form 1) from the BC government website at [http://gov.bc.ca/smallclaims gov.bc.ca/smallclaims], or | |||
* going to a [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/courthouse-locations Small Claims Court registry] and asking for the notice form. | |||
In the notice of claim, briefly describe what happened that led to your claim. You don’t need to tell everything about your case. Later, at a settlement conference or trial, you will have an opportunity to fully explain your side of the story. | |||
Say how much money you’re seeking. If you’re asking for something besides money (for example, the recovery of property), write that down and include a dollar value. | Say how much money you’re seeking. If you’re asking for something besides money (for example, the recovery of property), write that down and include a dollar value. | ||
As the person who is suing, you are called the '''claimant'''. The person or company you are suing is called the '''defendant'''. | As the person who is suing, you are called the '''claimant'''. The person or company you are suing is called the '''defendant'''. | ||
Take care in naming the defendant. If you name the wrong party, your claim will be dismissed. Make sure to use the defendant’s proper name. If you’re suing a company, you can get the company’s '''legal name''' by doing a '''company search''' with [https://www2.gov.bc.ca/gov/content/employment-business/business/managing-a-business/permits-licences/businesses-incorporated-companies/searches-certificates BC Registries]. You can call them at 1-877-526-1526 or visit a [https://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/citizens-services/servicebc Service BC location] for more information. (Note you will need a copy of the company search when you go to file your notice of claim.) | Take care in naming the defendant. If you name the wrong party, your claim will be dismissed. Make sure to use the defendant’s proper name. If you’re suing a company, you can get the company’s '''legal name''' by doing a '''company search''' with [https://www2.gov.bc.ca/gov/content/employment-business/business/managing-a-business/permits-licences/businesses-incorporated-companies/searches-certificates BC Registries]. You can call them at 1-877-526-1526 or visit a [https://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/citizens-services/servicebc Service BC location] for more information. (Note you will need a copy of the company search when you go to file your notice of claim.) | ||
===Step 2. File the notice of claim in court=== | ===Step 2. File the notice of claim in court=== | ||
You must '''file the notice of claim''' in the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/courthouse-locations Small Claims Court registry]. You have a choice of which registry to file in. You can file the notice in the registry nearest to where the person you are suing lives or carries on business, or in the registry nearest to where the events you’re suing about took place. | You must '''file the notice of claim''' in the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/courthouse-locations Small Claims Court registry]. You have a choice of which registry to file in. You can file the notice in the registry nearest to where the person you are suing lives or carries on business, or in the registry nearest to where the events you’re suing about took place. | ||
For example, say you want to sue a person for injuries you suffered when they punched you at a nightclub. The incident took place at a nightclub in Vancouver. The person lives in Surrey. You can file the notice of claim in either the Vancouver or Surrey court registry. | For example, say you want to sue a person for injuries you suffered when they punched you at a nightclub. The incident took place at a nightclub in Vancouver. The person lives in Surrey. You can file the notice of claim in either the Vancouver or Surrey court registry. | ||
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There is a filing fee, which you may get back from the defendant if you win. | There is a filing fee, which you may get back from the defendant if you win. | ||
If the defendant is a company, you also need to file a copy of your company search. | If the defendant is a company, you also need to file a copy of your company search. | ||
===Step 3. Serve the notice on the defendant=== | ===Step 3. Serve the notice on the defendant=== | ||
You must '''serve''' the notice of claim on the defendant. “Serving” means delivering the notice to them. You must also include a blank reply form for them to fill out. You can get the blank reply form (Form 2) at [http://gov.bc.ca/smallclaims gov.bc.ca/smallclaims]. | You must '''serve''' the notice of claim on the defendant. “Serving” means delivering the notice to them. You must also include a blank reply form for them to fill out. You can get the blank reply form (Form 2) at [http://gov.bc.ca/smallclaims gov.bc.ca/smallclaims]. | ||
If the defendant is a person aged 19 or over, you can serve them by '''personal service''' or '''registered mail'''. To serve a document personally, you or someone acting on your behalf can simply hand the document to the defendant. If the person refuses to take it, you can drop it on the floor at their feet. | If the defendant is a person aged 19 or over, you can serve them by '''personal service''' or '''registered mail'''. To serve a document personally, you or someone acting on your behalf can simply hand the document to the defendant. If the person refuses to take it, you can drop it on the floor at their feet. | ||
If the defendant is a company, you can send the notice by registered mail or personally deliver it to the company’s '''registered office'''. The address of the registered office is shown on the company search you had to submit with your notice of claim. | If the defendant is a company, you can send the notice by registered mail or personally deliver it to the company’s '''registered office'''. The address of the registered office is shown on the company search you had to submit with your notice of claim. | ||
After you serve the notice of claim, you must prove it by completing a '''certificate of service''' (in Form 4). | After you serve the notice of claim, you must prove it by completing a '''certificate of service''' (in Form 4). | ||
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===Step 4. Wait for a reply=== | ===Step 4. Wait for a reply=== | ||
After a defendant is served, they have '''14 days''' to respond. (A defendant who does not live in BC has 30 days to respond.) The defendant responds by filing a '''reply'''. | After a defendant is served, they have '''14 days''' to respond. (A defendant who does not live in BC has 30 days to respond.) The defendant responds by filing a '''reply'''. | ||
In their reply, the defendant may: | In their reply, the defendant may: | ||
*agree to pay all your claim, but not right away | |||
*oppose all or part of the claim | * agree to pay all your claim, but not right away | ||
*sue you back, by making a '''counterclaim''' | * oppose all or part of the claim | ||
* sue you back, by making a '''counterclaim''' | |||
The court will send a copy of the reply to you, as the claimant. In most cases, the court will set a date for a '''settlement conference'''. | The court will send a copy of the reply to you, as the claimant. In most cases, the court will set a date for a '''settlement conference'''. | ||
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Once the defendant files a reply, the registry usually sets a date for a 45 minute meeting called a '''settlement conference''' with a judge. The purpose is to try to settle the case before a trial. You and the defendant (and your lawyers, if you have them) attend the conference. The judge will give their opinion of the case during the conference. | Once the defendant files a reply, the registry usually sets a date for a 45 minute meeting called a '''settlement conference''' with a judge. The purpose is to try to settle the case before a trial. You and the defendant (and your lawyers, if you have them) attend the conference. The judge will give their opinion of the case during the conference. | ||
If you and the defendant do not settle the case, it will go to '''trial'''. See our information on [[ | If you and the defendant do not settle the case, it will go to '''trial'''. See our information on [[Small Claims Court|going to trial in Small Claims Court]]. | ||
==Common questions== | ==Common questions== | ||
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===What happens if the defendant doesn’t respond in time?=== | ===What happens if the defendant doesn’t respond in time?=== | ||
If the defendant doesn’t file a reply within the time limit or contact you to resolve the claim, you can file an '''application for default order''' (in Form 5). File it at the registry where you filed the notice of claim, along with a copy of the certificate of service (in Form 4). | If the defendant doesn’t file a reply within the time limit or contact you to resolve the claim, you can file an '''application for default order''' (in Form 5). File it at the registry where you filed the notice of claim, along with a copy of the certificate of service (in Form 4). | ||
If the claim is for a debt, a '''default order''' may be made without you even going to a hearing. If the claim is not for a debt, the court registry must schedule a '''default hearing''' date so a judge can decide the amount you may get. | If the claim is for a debt, a '''default order''' may be made without you even going to a hearing. If the claim is not for a debt, the court registry must schedule a '''default hearing''' date so a judge can decide the amount you may get. | ||
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If you are satisfied with what the defendant offers, you can withdraw your claim by filing a '''notice of withdrawal''' with the court. This form is available online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims]. You should put any agreement in writing and have both parties sign it. | If you are satisfied with what the defendant offers, you can withdraw your claim by filing a '''notice of withdrawal''' with the court. This form is available online at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/small-claims-forms gov.bc.ca/smallclaims]. You should put any agreement in writing and have both parties sign it. | ||
If the defendant offers payments, you can prepare a '''consent order''' or a '''payment order'''. File the order at the court registry where you filed the notice of claim. The order [[Getting Your Judgment Paid | If the defendant offers payments, you can prepare a '''consent order''' or a '''payment order'''. File the order at the court registry where you filed the notice of claim. The order [[Getting Your Judgment Paid|can be enforced]] if payment stops. | ||
== | ==Who can help== | ||
===With your case=== | ===With your case=== | ||
You do not need a lawyer to go to Small Claims Court. But you'll probably better understand the process, as well as the strength of your case, if you get '''legal advice'''. If you have limited means, you might be able to get legal help from pro bono services, a student legal clinic, or an advocate. See our information on [[Free and Low-Cost Legal Help | You do not need a lawyer to go to Small Claims Court. But you'll probably better understand the process, as well as the strength of your case, if you get '''legal advice'''. If you have limited means, you might be able to get legal help from pro bono services, a student legal clinic, or an advocate. See our information on [[Free and Low-Cost Legal Help|free and low-cost legal help]]. | ||
===More information=== | ===More information=== | ||
The '''BC government''' website has how-to guides on Small Claims Court, including [http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim making a claim], replying to a claim, serving documents, getting ready for court, and getting results. | The '''BC government''' website has how-to guides on Small Claims Court, including [http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/making-a-claim making a claim], replying to a claim, serving documents, getting ready for court, and getting results. | ||
* [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides Visit website] | |||
The BC government’s '''Small Claims Court Filing Assistant''' walks you through the steps of completing court forms. | The BC government’s '''Small Claims Court Filing Assistant''' walks you through the steps of completing court forms. | ||
* [http://justice.gov.bc.ca/FilingAssistant/ Visit website] | |||
The '''BC Provincial Court''' website features information on Small Claims Court, as well as past court decisions. | The '''BC Provincial Court''' website features information on Small Claims Court, as well as past court decisions. | ||
* [http://www.provincialcourt.bc.ca/ Visit website] | |||
The '''Small Claims BC Online Help Guide''', from Justice Education Society, provides step-by-step information on each stage of a small claims case. | The '''Small Claims BC Online Help Guide''', from Justice Education Society, provides step-by-step information on each stage of a small claims case. | ||
* [http://www.smallclaimsbc.ca/ Visit website] | |||
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