Recovering specific property
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This factsheet will tell you how to bring a lawsuit for the return of property that belongs to you and which another person wrongfully refuses to give back to you. In this factsheet reference is made to other factsheets in this series and to booklets which have been issued by the Province of British Columbia. The other factsheets and booklets may provide you with details which will answer questions which may arise in your particular case.
You should obtain:
- Factsheet No. 1 which will give you an overview of the procedure in Small Claims Court;
- Factsheet No. 2 which will give you information about starting a lawsuit;
- Factsheet No. 6 which deals with serving documents;
- Factsheet No. 7 which deals with obtaining a default Order; and
- Province of British Columbia Small Claims Court Guide #2 “Making a Claim for Proceedings Initiated in Small Claims” and Guide #5 “Serving Documents“.
You will also need special forms. These include:
STEPS TO FOLLOW
The first step is to prepare a Notice of Claim.
Click here to view a sample of a completed Notice of Claim.
It includes a sample of the wording you can use to fill in the “What Happened” portion of the form. Naturally, you will need to alter the words to fit your particular case. The sample also gives you the exact words which you can use to fill in the “How Much” section of the form.
If you wish more information about filling in the Notice of Claim form you should refer to Factsheet No. 2 called “Starting a Lawsuit” and “Small Claims How-To Guides” by the Province of British Columbia.
Click here to obtain a blank Notice of Claim form that you can use.
A CHOICE OF PROCEDURES
You then have a choice of procedures to follow. You could file the Notice of Claim at the Small Claims Court Registry and “serve” it on the Defendant. That is, you could have a copy of a Notice of Claim given to the person who has your property. There are various ways allowed by law to have a Notice of Claim served on the Defendant. You may wish to refer to Factsheet 6 and Serving Documents by the Province of British Columbia for more information about service.
RETURN AFTER SETTLEMENT CONFERENCE OR TRIAL
After the Notice of Claim has been served you could then wait for a Settlement Conference at which time the lawsuit might be resolved. If it is not resolved at that point, a trial would take place at a later date. Depending on how busy the Small Claims Court is where the lawsuit is begun, it may take several months to over a year before a Settlement Conference takes place. A trial would then occur several months to a year after the Settlement Conference. During that time, you would not have your property.
IMMEDIATE RETURN OF PROPERTY
If you do not want to wait for a Settlement Conference and trial, there is a different procedure you can follow. The rest of this factsheet describes the procedure to follow if you want your property back quickly.
POSTING A BOND
If you decide to apply to the Court for the immediate return of your property, a Judge may require you to “post a bond”. In Small Claims Court the “bond” is often in the form of money which you must pay to the Court Registry. The amount of the bond will be decided by a Judge.
Why is a bond usually required? The reason is that when you apply for an Order to have your property returned immediately, the Judge may only hear your evidence. The Judge may make an Order based on just your evidence requiring the Defendant to immediately return the property to you. Later, at a full trial at which the Judge has heard all the evidence from both sides, the Judge may decide that you are not the true owner of the property. If you are unable at that time to return the property because it has been damaged or destroyed or because you no longer have it, the money posted as a bond will be paid to the Defendant as compensation. If, however, after a trial the Judge decides that the property does belong to you the money posted as bond will be returned to you.
In addition to having to post a bond you may also have to pay a bailiff to actually seize your property. This can be costly. Thus you should check about the cost of using a Bailiff’s service before you proceed. Click here to view a list of Bailiffs operating in British Columbia.
PREPARE AN APPLICATION TO A JUDGE
To get your property back quickly you must apply for an Order from a Judge. To apply for an Order from a Judge you must fill in an Application to a Judge form.
If you refer to that form you will see that there are only two parts of the form which may be difficult to fill in. The first is the part that asks you for details of the Order you are asking for. The second is the facts upon which your application is based.
THE WORDS TO USE
The words to use to describe the Order you want on the Application to a Judge form are as follows:
- “An Order directed to [insert name of the Bailiff] to recover the following property wrongfully held by the Defendant:
- [list property].”
If you believe an Order must be obtained immediately without serving the Defendant you should add: “That this Order be granted without the need to serve the Defendant with a copy of this application.”
After the words on the form“The facts on which the application is based are as follows:” you should write down facts which show that the property belongs to you. If you are asking for an Order without serving the Defendant with the application you must also give reasons why the Order is needed urgently. For example, if you know that the Defendant is going to sell, give away or destroy your property, you should include those facts on the Application to a Judge.
You should also write down where you got your information. Write down who you spoke to or what you saw, or where you read the information.
After completing the Notice of Claim and the Application to a Judge forms you should make four photocopies of them and file them at the Registry of the Small Claims Court which has jurisdiction to hear your lawsuit. Jurisdiction is discussed in Factsheet No. 2.
Be prepared to pay the filing fee which is also discussed in Factsheet No. 2.
IF YOU NEED THE ORDER URGENTLY
If you need the Order urgently ask to speak to the Small Claims Court Registrar. Tell the Registrar that you want to appear in Court as soon as possible without serving the Defendant. Tell the Registrar why you need the Order urgently. Under Small Claims Rule 16(10), you will not have to serve the application if the Registrar agrees. Otherwise, you will have to serve the application or appeal the Registrar’s decision.
APPEAR IN COURT
The date and time that you will have to appear in Court will be filled in by the Small Claims Court Clerk or Registrar on the Application to a Judge form. Appear in Court at the time required.
Your opportunity to speak to the Judge will usually occur early in the Court session. When you arrive you should take a seat in the Courtroom.
After the Court is called to order, the Judge or Court Clerk will usually read through the whole list of the day’s cases. When your case is called stand up and inform the Judge that you are present. After the list is read through once, the Judge will usually begin to go through the list a second time. When your name is called the second time, you should go to the front of the Courtroom. Stand when you speak to the Judge and address the Judge as “Your Honour”. You should say the following: “Your Honour, I am making an application for the return of property.”
The Judge may then ask you some questions about your case. The Judge will then either grant the Order you are seeking, tell you what further things you must do to obtain your Order, or refuse to grant the Order you want.
PREPARE AN ORDER
If the Judge decides to grant the Order, then the Order must be put in writing.
The bottom of the Application to a Judge form is used for that purpose. Sometimes the Judge (or Clerk) will fill in the Form. Other times, the Judge will order you to fill in the Form. In both cases, the Judge must sign the Order in the box containing the words “By the Court”. The Order must then be filed in the Court Registry.
HAVE THE ORDER ENFORCED
Once the Judge signs the Order you can give the Bailiff a copy of it together with a copy of the Notice of Claim. The Bailiff will then require you to pay the necessary fees. The Bailiff will then serve the Notice of Claim and Order on the Defendant and seize your property from the Defendant.
THE NEXT STEP
Once you have your property back you must remember that the case is not over. If the Defendant files a document called a “Reply” you will then have to appear at a Settlement Conference and perhaps at a trial. However, if a Reply is not filed within fourteen (14) days of the date the Bailiff gives a copy of the Notice of Claim to the Defendant, you should file a Default Order.
You can obtain information about how to file a Default Order by referring to Factsheet No. 7 , which is called “Obtaining a Default Order.”
Prepared by Glenn Gallins
Revised February 2008, links checked 2019
Funded by the PLE Program of the Legal Services Society