Overview of a lawsuit in Small Claims Court

Factsheet 1

Overview

Small Claims Factsheet One
Prepared by Glenn Gallins
Revised February 2008, Links checked 2019
Funded by the The Law Foundation of British Columbia

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      INTRODUCTION 

      A lawsuit in Small Claims Court is like a trip. There is a point where you start and a point where you end. In between there are many side trips you can take. This factsheet can serve as your map. It will give you an overview of a lawsuit in Small Claims Court. It lists many of the steps that may be taken by each party in a lawsuit in Small Claims Court. 

      However, there may be steps that would be useful to take which are not listed. So you should not rely completely on this factsheet. 

      For a complete knowledge of Small Claims Court, you should read: 

      Several Supreme Court Rules are also used by the Small Claims Court, R17(18) and R22. These rules are Supreme Court Rules 6, 42, 46, 48 and 69  (1) to (3), (4) (a), (6) to (10), (12) to (14) and (16) to (20). 

      SOME DEFINITIONS 

      Many of the words used in the Small Claims Act and Rules may not be familiar to you. These words, and brief definitions of them, are given below. To begin with, however, you will need to become familiar with the following two words: 

      • CLAIMANT: The person who starts the lawsuit in Small Claims Court. 
      • DEFENDANT: The person who is being sued. 

      STEPS IN A SMALL CLAIMS LAWSUIT 

      The steps which a Claimant can take in Small Claims Court are listed in the left hand column below. The Defendant’s steps are listed in the right hand column. The steps have been listed in the order in which they are likely to occur. 

      Noted after most of the steps is the source of law which applies to the step. For example, R(1) means Small Claims Rule 1 and SCR 6(7) means Supreme Court Rule 6(7). When referring to sections of legislation, you’ll see that “section” is shortened to “s.” – for example, “Small Claims Act s.3” refers to section 3 of that act.

      More details regarding many of the steps described below can be found in the other factsheets in this series. The FS number noted after most steps refers to the factsheet number. 

      CLAIMANT 

      DEFENDANT

      BEFORE YOU BEGIN: 

      • Determine whether Small Claims Court has jurisdiction over the case.
      • Conduct searches at the Registrar of Companies Office or other registries (if necessary).
      • Send a demand letter (if appropriate).
        • Factsheet: FS2 
      		   

      STARTING A LAWSUIT IN SMALL CLAIMS: 

      • Prepare and file a Consent to act as Litigation Guardian if a Litigation Guardian is needed.
        • Law: SCR20-2 
        • Factsheet: FS3 
        • Click here to download the necessary form
            
      • Apply to the Registrar to waive fees (if appropriate).
      • Prepare a Notice of Claim.
      • File the Notice of Claim at the Small Claims Registry.
      • Garnish money owed to the Defendant (if appropriate).
      • Obtain an order to detain and preserve property (if appropriate).
      • Obtain an order to return things to the Claimant pending outcome of the lawsuit.
      		  

      NOTIFYING THE DEFENDANT OF YOUR CLAIM: 

      • Serve Notice of Claim. 
        • Law: R2, R18
        • Factsheet: FS6 
            
      • File Proof of Service.
      • Renew Notice of Claim if not served within 12 months.
      		  

      DAMAGES FOR PERSONAL INJURY:

      If a lawsuit is for damages for personal injury: 

      • Obtain all medical reports and records of expenses and losses.
      • File a Certificate of Readiness with copies of medical reports and a record of expenses and losses.
      		  
        

      OPTIONS IF YOU ARE BEING SUED: 

      • Pay the amount claimed.
      • Prepare and file a Reply within 14 days to:
        • admit the claim and ask the Judge to set a payment schedule, or 
        • oppose the claim, or  
        • make a counterclaim. 
      • Begin an action in Supreme Court if the counterclaim (excluding interest and expenses) is for more than $35,000 and apply for an Order postponing the Small Claims trial.

      • If a Litigation Guardian is needed, prepare and file a Consent to Act as Litigation Guardian.
        • Law: SCR 20-2 
        • Factsheet: FS3 
        • Click here to download the necessary form

      • If another person (or company) should pay the claim, conduct a search at the Registrar of Companies Office (Law: R5(2.1), R5(2.2)):
        • Prepare and file a Third Party Notice; 
        • serve a Third Party Notice;  and
        • file Proof of Service within 30 days. 

      RESPONDING TO A COUNTERCLAIM: 

      • File a Reply to the counterclaim.
      		  

      OBTAINING A DEFAULT ORDER: 

      • If Defendant does not file a Reply and the claim is for debt, apply for a Default Order at the Court Registry.
      • If Defendant does not file a Reply but claim is not for debt, appear at a hearing before a Judge to obtain a Default Order. 

      SETTING ASIDE A DEFAULT ORDER: 

      • If Default Order granted, apply to set it aside.

      OBTAINING A SUMMARY JUDGMENT: 

      • If Defendant has filed a Reply and if there is absolutely no defence, make an application to a Judge for Summary Judgment.
      		  

      BOTH CLAIMANT AND DEFENDANT 

      SMALL CLAIMS MEDIATION FOR CLAIMS BETWEEN $10,000 AND $35,000: 

      • Mediation is optional for claims between $10,000 and $35,000.
        R7.3(2) 
      • One party can compel another party to mediate by filing a Notice to Mediate for Claims Between $10,000 and $35,000 (Form 29): R7.3(5) 
      • The parties must jointly appoint and share the cost of a mutually acceptable mediator within 14 days of the Notice being delivered to all parties. If parties cannot agree on a mediator, either party can apply to the BC Mediator Roster Society for an appointment of a mediator.
        R7.3(9), R7.3(10), R7.3(35) 
      • Attend mediation.
        R7.3(17). R7.3(18) 
      • If a party does not attend mediation, the attending party must obtain a completed Verification of Default (Form 31) from the mediator and file it at the registry.
        R7.3(37) 
      • Obtain a Default Order or dismissal of the lawsuit.
        R7.3(38), R7.3(39), R7.3(40) 
      • If a Default Order of dismissal of action has been made for non-attendance at a mediation, apply to set it aside.
        R7.3(42), R7.3(43), R7.3(44) 
      • Settle some or all of the issues. If issues are resolved, prepare a Mediation Agreement and file it at the registry.
        R7.3(48) 

      SETTLEMENT CONFERENCE:

      Prepare for Settlement Conference: 

      • acquire all documents and records that will be relied upon at trial.
        R7(5) 
      • apply for adjournment (if necessary).
        R7(7) 

      Attend Settlement Conference. 

      • At the Settlement Conference the Judge may: 
        • mediate issues. 
        • decide issues that do not require evidence. 
        • make orders agreed to by the parties. 
        • set a trial date. 
        • discuss evidence and procedure of trial. 
        • order a party to produce evidence at trial. 
        • order inspection and copying of documents. 
        • order examination of damaged property by a third party. 
        • dismiss a claim, counterclaim or reply. 
        • make other orders for the just, speedy and inexpensive resolution of the claim.

      If the lawsuit is not ended at the Settlement Conference: 

      You have two options following a Settlement Conference that did not resolve the lawsuit: proceed to settle, or prepare for trial.

      1. Make or accept an offer to settle: R10.1 

      2. Prepare for trial: see FS13 

      • Prepare and serve witnesses with a summons and reasonable travelling expenses.
      • If expert evidence is needed, serve on the opposite party a summary of the expert’s evidence or a report stating the expert’s opinions at least 30 days before trial.
      • If an expert’s report is received from the opposite party and the expert must be cross-examined, give notice requiring expert to attend trial at least 14 days before trial.
      • Organize the case so that it will be presented clearly to the Judge at trial. 
      • Conduct trial.

      CLAIMANT 

      DEFENDANT 

      AFTER THE TRIAL: 

      AFTER THE TRIAL: 

      • Pay money as required by payment order, or 
          
      • Request payment hearing.

       DEFINITIONS 

      CERTIFICATE OF PLEADINGS: 

      A form used to tell the Court Registry that a Claimant is ready for a Settlement Conference. 

      COUNTERCLAIM: 

      If the Defendant believes the Claimant owes him money, he can make his claim part of the lawsuit by filing a counterclaim. 

      DAMAGES: 

      Money to compensate for loss or injury. 

      DEFAULT ORDER: 

      An Order of the Court obtained without the need for a trial. 

      DEMAND LETTER: 

      A letter to the Defendant demanding such things as payment of money owed, return of goods belonging to the Claimant, or doing something required by a contract. 

      EXPERT: 

      A person who has some special scientific, technical or professional knowledge. 

      GARNISHMENT: 

      When money is owed to the Defendant, the person who owes that money can be required to pay that money into Court. 

      GUARDIAN AD LITEM: 

      An adult who is responsible for looking after a child or other legally incompetent person’s interest in a lawsuit. A Guardian ad Litem is also called a “Litigation Guardian.” 

      JURISDICTION: 

      The right of the Court to decide the case. 

      MEDIATE: 

      Assist the Claimant and Defendant to voluntarily settle the lawsuit on terms acceptable to them. 

      PAYMENT HEARING: 

      A hearing at which a Judge assesses the ability of a debtor to pay the amount owed and also decide whether to impose a payment schedule. 

      PAYMENT ORDER: 

      An Order made by a Judge stating that one person owes money to another person. 

      REPLY: 

      The form filed in Small Claims Court by the Defendant to let the Court know that the Defendant is going to contest the lawsuit (or admit the claim and ask for a payment schedule). 

      SERVE: 

      To give a copy of the document to someone. 

      SETTLEMENT CONFERENCE: 

      A meeting conducted by a Judge before trial at which the Claimant and Defendant attend. 

      THIRD PARTY NOTICE: 

      A form used by the Defendant to add another person to the lawsuit where the Defendant believes the other person should pay part of the claim.