Starting a lawsuit
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Prepared by Glenn Gallins
Revised February 2008, Links checked 2019
Funded by the PLE Program of the Legal Services Society
THINGS TO DO BEFORE STARTING A LAWSUIT:
Before starting a lawsuit there are several steps you’ll need to take. These include:
- Confirming that the Small Claims Court has the power to hear your case.
- Finding out the correct spelling of the name of the person or company you are planning to sue.
- If you are going to sue a company or a society, obtain a printout from the Registrar of Companies office showing the address of the company’s registered office, or the address of the society on file at the Registrar of Companies office.
- Sometimes sending a letter to the person you want to sue demanding what you want before starting the lawsuit.
- If you are under the age of 19, having an adult assist you with the lawsuit. The adult who assists you is called your “Litigation Guardian” or your “Guardian Ad Litem.” The adult will have to file at the Court Registry a form called a “Consent to Act as Guardian Ad Litem.”
- If you cannot afford the $100 or $156 fee charged to start the lawsuit, applying to the Registrar of the Small Claims Court for an order to allow you to start the lawsuit without paying the fee.
- If your lawsuit is for money owed to you, you may wish to get a garnishing order. At this point in a lawsuit you cannot garnish wages from the employer of the person who owes you money. But you can garnish other people and companies, such as banks.
- If your lawsuit is about getting things back that belong to you, you may wish to get a temporary order a long time before the trial takes place. There are two types of temporary orders:
- One type of temporary order you might get from a Small Claims Court Judge would require the things in dispute to be preserved. For example, you might get an order which would prevent the things from being sold to another person or being removed from British Columbia.
- Another type of temporary order which you might get would require the things be returned to you until a trial takes place. If the Judge decides the things are yours later at the trial you will get to keep them. If not, you will have to return them.
STEP 1 – DOES SMALL CLAIMS COURT HAVE THE POWER TO DEAL WITH YOUR CASE?
WHAT YOU CAN SUE FOR:
The Small Claims Act says you can bring a lawsuit in Small Claims Court for:
- Debts owed to you up to $35,000. Note that the amount of the claim can be more than $35,000 if the extra amount is for interest and expenses such as court costs;
- Damages for injuries done to you where your claim does not exceed $35,000;
- The recovery of property (other than land) where the value of the property does not exceed $35,000;
- A Court Order requiring a person to complete a contract relating to goods or services where the value of the goods or services does not exceed $35,000;
- Relief from opposing claims to property (other than land) where the value of the property does not exceed $35,000.
WHAT HAPPENS IF THE CLAIM IS WORTH MORE MONEY THAN $35,000:
If you have a claim that amounts to more than $35,000 (excluding interest and court costs), you may abandon part of the claim so that the remaining balance falls within the jurisdiction of the Small Claims Court: see Small Claims Rule 1(4).
To abandon part of a claim, you must say on the Notice of Claim that the amount over $35,000 is abandoned: see Small Claims Rule 1(5). The remainder of the claim may then be heard by the Court.
WHAT YOU CANNOT SUE FOR:
You cannot sue in Small Claims Court for:
- Defamation (libel or slander) or malicious prosecution;
- Disputes where the title to land comes into question;
- Some landlord and tenant matters which the Residential Tenancy Branch has jurisdiction over, or that require the granting of an injunction, or that deal with possession or occupation of a residential premise.
WHERE TO SUE:
There are many Small Claims Courts in British Columbia. You must sue in the Small Claims Court nearest to where the person you wish to sue lives or carries on business, or where the matter that you are suing about took place. For example, if you want to sue a person who resides in Victoria because they injured you in a motor vehicle accident in Kamloops, you could sue in the Small Claims Court nearest where the person who injured you resides (that is, Victoria) or where the motor vehicle accident occurred (that is, Kamloops).
STEPS 2 and 3 – IDENTIFYING WHO TO SUE
The person who you are going to sue is called the Defendant.
- If the Defendant is an individual, his or her full name should be used on the form that starts the lawsuit.
For example, use “James Brown” not “Mr. Brown” or “Jane Green” not “Mrs.”, “Miss”, or “Ms. Green”.
- If the Defendant is a business which is not incorporated, call the Municipal Hall in the town where the business is located and find out the name of the business and the person running it from the Business Licence Office. Both the business and the person running the business should be named as Defendants on the form that starts the lawsuit.
For example, if the name of the business is “Brown the Baker,” and it is run by James Brown, you should sue James Brown, carrying on business as Brown the Baker, and Brown the Baker.
- If the Defendant is an incorporated business, use the company name. To find out the correct spelling of the company name you are required by Small Claims Court Rule 1 (2.1) to do a company search and obtain a printout of the address of the registered office of the company. If you live in Victoria you can go to the Registrar of Companies Office at 940 Blanshard Street and do the search yourself. The fee is $10.00.
STEP 4 – WRITE A DEMAND LETTER
Sometimes you can succeed in obtaining what you want merely by writing a letter to the person you are thinking of suing.
Here is an example of such a letter:
“I am writing to you to ask you to repay me the money I lent to you on January 31, 2019. I have spoken to a lawyer and have been told that the IOU you gave me is good evidence of the debt. If you do not pay me by two weeks from the date of this letter, I will bring a lawsuit in Small Claims Court against you to recover the money you owe me. Yours very truly, _________”
There are certain times when you will not want to write such a letter. For example, you may be planning at the beginning of the lawsuit to garnish money owed to the Defendant. In that case you will not want to warn the Defendant that a lawsuit might start soon. For more information, see Factsheet 19 on “Garnishing Orders.”
STEP 5 – WHAT IF YOU ARE UNDER NINETEEN (19) YEARS OLD?
If you are under nineteen (19) years of age, see Factsheet 3 on ” Lawsuits Involving Persons Under 19 Years of Age.” This Factsheet gives you details of the special steps minors must take before they can start a lawsuit in Small Claims Court.
STEP 6 – AVOID PAYING FILING FEES
Normally to start a lawsuit in Small Claims Court you must pay a fee. The fee is $100 if your claim is worth $3,000 or less, and $156 if your claim is for more than $3,000. Click here to view the fees for Registry Services in Small Claims Court.
However, the Small Claims Rule 20 (1) says that the Registrar can make an order exempting you from paying Court fees. In order to be exempt, you must meet the test by proving that you cannot afford the fees payable. To apply to the Registrar you must:
- Complete an Application to the Registrar;
- Complete a Statement in Support of a Fee Exemption;
- File both forms at the Court Registry.
Click here to download a sample of a application to the registrar requesting an exemption from having to pay court fees.
Click here to download a blank Application to the Registrar.
Click here to download a sample of a completed Statement of Finances.
Click here to download a blank Statement of Finances.
The key to succeeding is to accurately show your income, expenses, assets and debts so the Registrar can decide that you cannot afford to pay the court fees. It does not cost anything to make an application to be exempt from the payment of fees, so if you think you cannot afford to pay you have nothing to lose by trying.
APPEALING A REGISTRAR’S DECISION
If you do not succeed in getting a fee exemption and you think the Registrar was wrong, you can appeal to a Small Claims Judge. To appeal you must:
- Fill in an Application to a Judge. (Click here to obtain a blank Application to a Judge form which you can use.)
- File the form at the Registry.
You will then be given a date when you can appear in court to have a Judge consider your appeal.
STEP 7 – GARNISHING MONEY OWED TO THE DEFENDANT
If you are suing for a debt owed to you, you can garnish money (other than wages) owed to the Defendant. The money will be paid into court. If you win your case, the money will then be waiting for you. For details about how to obtain a Garnishing Order see Factsheet 19, which is called “Garnishing Orders.”
Please note that under the law, you cannot garnish at this point if you are suing for damages. When you sue for damages you are asking the court to decide how much money you should be given to make up for an injury that was done to you.
STEP 8 – OBTAINING AN ORDER TO PRESERVE PROPERTY OR AN ORDER TO RETURN YOUR THINGS UNTIL THE TRIAL
If your lawsuit is about having things you own returned to you or about some item which you are afraid will be damaged or lost by the Defendant, you may want to apply to a Judge for an order to preserve the item or to have the item returned to you now. To find out how to apply for such an order, see either Factsheet 4 which is called “Preserving Property” or Factsheet 5 which is called “Recovering Specific Property.”
PREPARING A NOTICE OF CLAIM
The document which starts a lawsuit in Small Claims Court is called a Notice of Claim.
Click here to download a blank Notice of Claim form which you can use.
As you will see, the form has instructions on it which must be followed. The form requires that you fill in 6 types of information:
- The name, address and phone number of the Claimant (the person suing).
- The name, address and phone number of the Defendant.
- A description of what happened to lead to the lawsuit.
- A statement of where the claim happened.
- A statement of when the claim arose.
- A statement of how much money is being claimed.
Only two parts of the form may cause you any problem. They are the what happened part and the how much part.
The “what happened” part of the form should be written in clear, simple English. Each important point can be numbered and set out in a separate sentence. The goal is to write enough facts so that a Judge will understand the basis for the lawsuit.
Scroll down to view sample “what happened” paragraphs for many different types of claims.
These samples may help you fill in the “what happened” part of your Notice of Claim.
HOW MUCH – DEBT CLAIMS:
If your lawsuit is for a debt, it will be easy to know how much you are suing for. If you are owed $5,000.00 you would ask for that amount plus interest.
If you are suing for damages and you do not know how much a Court is likely to give you, you should probably ask for the maximum, which is $25,000. You should also ask for interest pursuant to the Court Order Interest Act. Of course, if a Judge decides your claim is worth less than $25,000 you will only get an Order for the amount the Judge thinks your claim is worth.
The words “how much” do not apply to all types of lawsuits you can bring in Small Claims Court. Here are the words you can use for other types of claims:
- To enforce a contract: “I want an Order which will require the Defendant to perform his obligations under the contract.”
- To have the goods returned to you: “I want an Order requiring the Defendant to return to me the following goods: (list the goods)” or “If the Defendant fails to return the goods, compensation for the wrongful taking of those goods in the amount of $_________.”
IF THE DEFENDANT IS OUTSIDE OF BC:
If the Defendant is not living in British Columbia, the paragraph at the bottom of the Notice of Claim which is called “Time Limit for a Defendant” must be changed. Rather than saying that a Reply must be filed within 14 days, the paragraph should be changed to say that a Reply must be filed within 30 days.
THE NEXT STEP:
After preparing the Notice of Claim you may do one or more of the following things:
- File a Consent to Act as Guardian Ad Litem (if necessary).
- Obtain an Order so that you do not have to pay filing fees.
- File the Notice of Claim at the Court Registry.
- Obtain a Garnishing Order, or Order to preserve or return property.
- Give copies of the documents to the appropriate persons.
SAMPLE WORDING TO USE IN THE “WHAT HAPPENED” PORTION OF THE NOTICE OF CLAIM
NOTE: In the samples below you will find a number of parentheses “( )” containing examples of the type of information you should include in your Notice of Claim. When filling out your Notice of Claim, replace the information inside these parentheses with information which pertains to your claim.
LAWSUIT TO RECOVER MONEY PAID BY MISTAKE:
- On (date – e.g., 4 April 2014), I paid (amount – e.g., $268.40) to the Defendant by mistake.
- The reason I mistakenly paid the Defendant was because (e.g., I didn’t closely scrutinize the bill the Defendant gave me for services, and the bill was for $268.40 more than I owed).
LAWSUIT TO RECOVER MONEY OWING ON A JUDGMENT FROM ANOTHER PROVINCE:
- On (date – e.g., 27 March 2014), I obtained a Judgment against the Defendant in a lawsuit in the (name of Court – e.g., Provincial Court of Nova Scotia).
- The amount of the Judgment was (e.g., $5,000.00).
- No payments have been made to me by the Defendant on the Judgment.
LAWSUIT TO RECOVER MONEY FOR PROPERTY SOLD TO THE DEFENDANT:
- On (date – e.g., 14 February 2014), I entered into a (verbal, written) contract with the Defendant.
- Under that contract I sold to the Defendant (describe property – e.g., a 2001 Nissan Sentra car, Licence Number ABC 123), hereinafter referred to as “the Property”.
- Under the contract the Defendant agreed to pay me (e.g., $8,600.00) for the Property.
- I delivered the Property to the Defendant, but the Defendant has refused to pay me.
LAWSUIT TO RECOVER A LOAN MADE TO THE DEFENDANT:
- On (date – e.g., 1 April 2013), I loaned to the Defendant (amount – e.g., $3600.00).
- The Defendant agreed to repay to me the amount loaned, plus interest, at the rate of (e.g., 5% per year).
- The Defendant agreed to repay the total amount to me by (date – e.g., 1 April 2014), at the rate of (e.g., $300.00 per month).
- The Defendant has failed to repay me (amount – e.g., $900.00) of the amount owed.
LAWSUIT TO RECOVER MONEY FOR WORK DONE FOR THE DEFENDANT:
- On (date – e.g., 9 September 2013), I entered into a (verbal, written) contract with the Defendant.
- Under that contract I agreed to (describe work to be done – e.g., build a suite in the Defendant’s basement) hereinafter referred to as “the Work”.
- Under the contract the Defendant agreed to pay me (amount – e.g., $8,000.00) for the Work.
- I did the Work, but the Defendant has refused to pay me (how much – e.g., $5,600.00) of the money owed to me.
LAWSUIT TO RECOVER MONEY FOR A CHEQUE THAT “BOUNCED”:
- The Defendant wrote a cheque made payable to me in the amount of (e.g., $500.00).
- The cheque was dated (e.g., 16 October 2013).
- I deposited the cheque after that date and it was returned to my bank because there were not sufficient funds in the Defendant’s account to cover the amount of the cheque.
LAWSUIT TO RECOVER A PORTION OF A LOAN OWED BY A JOINT DEBTOR:
- On (date – e.g., 1 April 2013), the Defendant and I became indebted to (name of creditor – e.g., Bank of Montreal) in the amount of (e.g., $4,000.00), plus interest.
- The Defendant and I agreed with one another that we would be equally responsible for the debt.
- I have repaid (state how much – e.g., $4,300.00) which includes the Defendant’s share of (amount – e.g., $2,150.00).
- I have asked the Defendant to repay me but the Defendant has refused to do so.
LAWSUIT FOR BREACH OF CONTRACT (GENERAL):
- On (date – e.g., 1 April 2014), I entered into a (verbal, written) contract with the Defendant.
- Under the contract the Defendant was (state what was supposed to be done by the Defendant – e.g., to paint the outside of my home).
- The Defendant breached the contract by (e.g., only painting the front of my home and abandoning the job).
LAWSUIT FOR BREACH OF CONTRACT TO REPAIR PROPERTY:
- On (date – e.g., 14 June 2013), I entered into a (verbal, written) contract with the Defendant.
- Under the contract the Defendant was to repair (name the object to be repaired – e.g., the engine in my 2012 Nissan Sentra).
- The Defendant breached the contract by failing to repair (name the object – e.g., the engine) in a proper and workmanlike manner.
LAWSUIT FOR MOTOR VEHICLE ACCIDENT (WHERE THE DEFENDANT IS THE OWNER AND DRIVER OF A VEHICLE INVOLVED IN THE ACCIDENT:
- On (date – e.g., 4 March 2013), I was involved in a motor vehicle accident which was caused by the Defendant.
- The accident occurred at (location – e.g., the intersection of Main Street and Jones Street, in Victoria, B.C.).
- As a result of that accident I was personally injured.
- In addition, my car was damaged and I suffered other losses.
LAWSUIT FOR MOTOR VEHICLE ACCIDENT (WHERE THE DRIVER OF THE VEHICLE IS DIFFERENT FROM THE OWNER OF THE VEHICLE) [Note: Both owner and driver are named as Defendants.]:
- On (date – e.g., 4 March 2013), I was involved in a motor vehicle accident which was caused by the Defendant (name of driver – e.g., Jim Smith).
- The Defendant (Jim Smith) was driving a vehicle owned by (name of owner – e.g., Steven Smith).
- The accident occurred at (location – e.g., the intersection of Main Street and Jones Street, in Victoria, B.C.).
- As a result of the accident I was personally injured.
- In addition, my car was damaged and I suffered other losses.
LAWSUIT FOR WRONGFUL DISMISSAL:
- I was employed as a (e.g., Sales Clerk) for the Defendant.
- I started work on (date – e.g., 10 January 2011).
- I was paid (amount – e.g., $925.00) per month.
- I was dismissed without cause and without being given any notice on (date – e.g., 3 June 2013).
LAWSUIT FOR ILLEGALLY SEIZING A CAR:
- On (date – e.g., 1 April 2013), the Defendant wrongfully seized my (describe car – e.g., 2002 Nissan Sentra, Licence Number ABC 123), hereinafter referred to as “my Car”.
- My Car had been parked (describe location – e.g., in the parking lot of the Waterfront Pub, in Victoria, B.C.).
- (If appropriate): The Defendant refused to give back my Car to me until I paid (amount e.g., $46.00) which I paid to the Defendant under duress.
LAWSUIT FOR A DECEPTIVE ACT UNDER THE TRADE PRACTICES ACT:
- On (date – e.g., 1 April 2013), the Defendant engaged in a deceptive act or practice within the meaning of the Trade Practices Act (B.C.). The Defendant sold to me a (describe object – e.g., 2011 Nissan Sentra, Licence Number ABC 123) hereinafter referred to as “the Car”.
- The Defendant represented the Car to me as (give details – e.g., a 2011 Nissan Sentra), but the Car turned out to be (e.g., a 2000 Nissan Sentra).
LAWSUIT AGAINST A BAILEE FOR DAMAGING GOODS:
- On (date – e.g., 1 April 2013), I delivered to the Defendant my (describe goods – e.g., 2000 Nissan Sentra, Licence Number ABC 123) hereinafter referred to as “the Property”.
- As a result of the Defendant’s negligence in the care and custody of the Property, the following damage was done: (describe damage – e.g., hub caps were stolen and the tail lights were broken).
LAWSUIT FOR ASSAULT AND BATTERY:
- On (date – e.g., 1 April 2014), without provocation or justification, the Defendant threatened to (e.g., hit me, strangle me, kill me), and the Defendant did (describe – e.g., punch me, push me to the ground, strike me about the head with a broken bottle).
- As a result of the Defendant’s act, I sustained (list – e.g., personal injuries, pain and suffering, loss of past and future wages, loss of future earning capacity and loss of amenities of life).
LAWSUIT TO REQUIRE SPECIFIC PERFORMANCE OF A CONTRACT:
- On (date – e.g., 1 April 2013), I entered into a (verbal, written) contract with the Defendant.
- Under that contract the Defendant agreed to (describe obligation – e.g., sell and deliver to me a 2000 Nissan Sentra motor vehicle, Licence Number ABC 123).
- Under the contract I was to pay the Defendant the sum of (amount – e.g., $7,500.00).
- The contract was to be completed on (date – e.g., 5 April 2013).
- I was ready to perform my obligations under the contract, but the Defendant has refused to perform his obligations.
When a lawsuit is for an Order for specific performance, fill in the “how much” portion of the Notice of Claim with the following words:
“I claim an Order for specific performance by the Defendant of the contract entered into between myself and the Defendant on (date – e.g., 1 April 2019).”
LAWSUIT FOR THE RETURN OF GOODS:
See Factsheet 5.