LSLAP Training SMALL CLAIMS COURT PROCEDURE LEGAL RESEARCH

LSLAP Training: SMALL CLAIMS COURT PROCEDURE & LEGAL RESEARCH AND WRITING

Jurisdiction of Small Claims Court � Small Claims Act, s. 3(1) gives specific jurisdiction to deal with debt or damages, recovery of property, and specific performance of agreements. � Can only hear matters up to $25, 000. � Cannot hear: wills, estate, or trustee issues, remedies affecting an interest in land, PPSA, most strata, libel and slander, residential tenancy, human rights, bankruptcy, privacy law, trademarks and patents, and judicial review. � LSLAP deals mostly with contract and debt matters.

Limitation Periods �New Limitation Act effective June 1, 2013 Limitation act flowchart �Two years for most causes of action arising on or after June 1 (including contract and debt) If the cause of action arose before June 1, 2013, the older limitation period may apply �Always check with supervising lawyer to confirm limitation dates.

Naming Parties �If D is an individual - use full name without titles. �If D is a corporation - the corporation must be properly named, and corporate registry documents must be obtained. Corporate Registry Search necessary �If D is a non-incorporated business, can be named as “Joe c. o. b. a. Joe’s Bagels”. �Note section 27(1) of BCA, which may result in directors’ liability if name not properly displayed.

Drafting the Notice of Claim �Use the precedent provided on the LSLAP website �Notice of Claim should be concise, but include all relevant facts, clearly and chronologically Think of all the necessary facts to prove a case Ex. Existence of contract, term of contract, breach of contract, damages and causation �DO NOT use case law or attach evidence �Be sure to identify the cause of action ie. “breach of contract, ” which must be supported by the facts in your pleadings

Filing and Service � File closest to where business of action occurred: Small Claims Rule 1(2): action must be filed at the registry closest to where the D lives or carries on business, or where the transaction occurred. CANNOT represent files that are filed outside lower mainland � Must serve within 1 year of filing Rule 2(7) � Individuals can be served personally or by registered mail Rule 2(2) Individuals and unincorporated businesses can be served personally, or by registered mail with a signature (individuals to their home, not work (Rule 18(17)) � Corporations can be served at “registered office” by registered mail Rule 2(3) Corporations can be served at registered office by registered mail, delivery to registered office, at place of business, or with a director, officer, etc. of the company. � Substituted Service - if service is not possible by these methods, may apply to Registrar (Rule 18(8)

Replying to a Claim � ONLY 14 DAYS TO REPLY Rule 3(4): reply should be filed within 14 days of the date of service of the notice of claim. If not filed on time, default orders may be issued! � If outside BC, 30 days. � Must be filed in the same registry as notice of claim was filed. � May include a counterclaim against the plaintiff, up to $25, 000 and within the jurisdiction of the Court � Can reply to default in normal fashion, but default not available without application (Rule 6(2))

Default Orders �IF NO REPLY = DEFAULT Rule 6(1): If a Reply is not filed within 14 days (or 30 if served outside BC), the claimant may apply for a default order. �Usual practice is to advise other party before seeking default (courtesy and good practice) �Default orders may still require a hearing to determine amount of damages (if non-debt). �Default on a counterclaim requires an application/not automatic on expiry of reply time

Setting Aside Default �Rule 17(2): A party may apply to have a default order cancelled �Must include a Form 17 and an affidavit explaining the reason for delay �A draft reply should be included. �Must show that the party did not wilfully fail to enter a defence, that they applied to set aside as soon as possible, and that there is a defence worthy of consideration.

Mediation �Optional: Surrey and North Vancouver (rule 7. 2/7. 3). �Mandatory: Robson Square –for claims over $5000 (Rule 7. 4) �If mediation agreement breached, may ask court for payment order. �If claimant fails to attend, defendant may seek dismissal.

Settlement – Always an Option! �Settlement out of court is always possible, but ensure you get clear instructions and talk to supervising lawyer in making any settlement agreement. �Formal Offer to Settle (Rule 10. 1): If a party refuses a formal offer to settle and then obtains a ‘worse’ or equal result at trial, judge may order penalties (basically for failure to accept a reasonable offer).

Settlement Conference � Focus is on compromise NOT arguing your case – more about client management than legal argument (important to have multiple settlement options going in) � Rule 7: Applies to all registries *except* Robson Square. Date fixed automatically. � Judge may (each judge runs their conferences differently): mediate, make document orders, discuss evidence, dismiss a claim (if no triable issue etc. ), make payment orders, and make other orders. � Parties must bring “all relevant documents” (Rule 7(5). � If party does not comply with payment agreement, may obtain payment order (Rule 7(20).

Trial Conference �Robson square ONLY: Mandatory for matters over $5000 not settled at mediation (Rule 7. 5) �Trial statement must be filed at least 14 days in advance of Trial Conference, and served on the other party at least 7 days in advance. (7. 5 (9) and (10)). �Trial Statement: Statement of Facts, Documents, and Witness Summaries (“Will say”).

Pre-Trial Applications - Registrar �Rule 16(2) What the Registrar can do on application: renew a claim, change dates, extending filing time, authorizing hearings by phone, permitting service outside BC or by alternate methods, exempt a person from filing fees. �Must use Form 16 and file at the registry. Service not usually required �If applicant disagrees with decision, may have it reviewed by a judge (Rule 17(21)).

Pre-Trial Applications - Judge �Substantive or contested matters, matters concerning: joining or severing of parties, dismissal orders, witnesses, production of documents, payment schedule, trial schedule. �Note: Applications to dismiss can be brought prior to settlement conference under Rule 16(6)(o), but often it makes sense to wait until the Settlement Conference to make this application. Must argue that case is without reasonable grounds, outside Court’s jurisdiction, frivolous, abuse of process, etc.

Simplified Trial �ONLY for Claims $5 K or less Rule 9. 1: Robson Square and Richmond only, for claims $5000 or less (excluding personal injury) �Trial statement required 14 days before, and served 7 days before (Rule 9. 1(17/18)) Merely contains facts, evidence and witnesses (not argument or law) �Often one hour or less, before an adjudicator �Relaxed rules of evidence (Rule 9. 1(22))

Summary Trial �Only applies to debt claims by claimants “in the business of lending money or extending credit” (Rule 9. 2(1)(d)). �Parties must file contracts, statements of account, payment rec’ts, etc at least 14 days before the trial date, and serve on other party at least 7 days in advance of trial date. �Rules of evidence flexible (9. 2(9)).

Regular Trial �Relaxed rules of evidence (Rule 10(1)) �Witness summons must be issued to witness at least 7 days in advance (experts have separate rules). �Trial binder should be used, including opening and closing statements, witness statements, documents, legal authorities, etc. Not filed, but used by students in court. �Regular trial conduct: opening, examination of witnesses, closing. Ensure you have a trial supervising lawyer and book trial prep with LSLAP supervising lawyer.

Enforcement �Need a payment order, consent order, or default order. NOTE: can also enforce some other matters, esp. Residential Tenancy orders. �If payment schedule: can’t take further action as long as payments made on time (Rule 11(6) �If payments not made on time, or if no payment order, can take further enforcement steps. �Useful to obtain searches of possible assets and existing debts to determine enforcement possibilities.

Enforcement – Payment Hearing (Rule 12) �Creditor can request this: useful to obtain information about debtor’s assets. �Must use a summons to payment hearing and serve personally (Rule 12(7)). �Debtor can also request a payment hearing (i. e. if they need a different payment schedule). �Warrant of arrest may be issued for failure to attend (Rule 12(15)

Enforcement – Garnishing Orders �Requires an affidavit and draft order � Ensure accurate information about bank account or employer. Defendant must have been made aware of order and know of the opportunity to request payment hearing. �May garnish up to 30% wages, or bank accounts. Money is paid into court. �Prejudgement garnishment may be available for debt- only claims.

Enforcement – Seizure and Sale �Can only use this option if no payment schedule ordered (Rule 11(7) �Must pay bailiff fees upfront. �Often involves seizure of motor vehicles – always ensure property is worth seizing and owned solely by debtor.

Enforcement – Registration against land �May register judgement against land, and payment will occur when land or property is sold or transferred. �Can be used even if payment schedule in effect.

Enforcement – Default Hearing �If the debtor does not obey a payment schedule, may use default hearing. �Judge may confirm schedule, make orders for arrest of debtor (which debtor may annul by appearing voluntarily).

Small Claims Procedure Flowchart

Legal Research Start with the LSLAP Manual 1. Describes the area of law generally and what aspects we can assist with May realize we can’t help with their issue = referral Review any relevant Legislation 2. May be mentioned in the LSLAP Manual Chapter or in any letter they may have received (for government benefits/by laws etc. ) Review relevant Case Law 3. Cases may be mentioned in the Manual Review the tribunal’s website for case law AND look for SC cases from tribunals (greater authority/discussion at SC level)

Legal Writing �Review website for precedents/templates �Ask other students if they have handled similar files and ask to look at their letters/submissions �Ensure your writing is appropriate to your audience Avoid using legal jargon when communicating with clients and lay-people Cite legislation and case law appropriately and strategically �Edit your writing for spelling and grammar