Small Claims Court Bc Counter Claim In An Essay

How do I sue someone?

In BC’s Small Claims Court, all cases start with someone making a claim – which is done by completing a standard court form called the Notice of Claim. Once the Notice of Claim form is completed, the person who is suing (called the “claimant”) will register the claim form with the court and then provide the other person or company, (the “defendant”) with a copy. This is called filing a claim and serving documents. To learn more about how to sue someone, see Filing a Notice of Claim.

What court fees will I need to pay?

In order to advance a case in Small Claims Court, both the claimant and defendant will need to pay court fees. There are different amounts that must be paid, according to the value of the case and the specific step in the court process. See the current payment schedule for court fees.

If you cannot afford to pay filing fees, you can apply to the court to have the fees waived. You must make the application each time a court fee is due to be paid. To apply, you must complete the Application to the Registrar (Form 16), provide a Statement of Finances, gather other required information (tax receipts, bank statements, etc.) and submit these to the court registry where the case will be heard. To learn more about waiving court fees, click here.

I received a Notice of Claim, now what?

If you have received a Notice of Claim form, you are being sued. In BC’s Small Claims Court, all cases start when someone completes a Notice of Claim form, files it with the court and then serves it on the defendant. If you were in BC when the Notice of Claim was served on you, you have 14 days to reply. If you were outside of BC, you have 30 days. To this: To learn more about how to sue someone, see Replying to a Notice of Claim.

Should I settle out of court?

Only you can make this decision – but most cases do settle before they go to trial. Less than 10% of claims are resolved by a trial. Going to trial can be a long, frustrating process. Court is confrontational, things might not go your way and it usually takes more than one year to get a judgment. The Small Claims Court process includes several steps to help parties to resolve disputes, without going to court, these include: mediation, settlement conference and trial conference. To learn more, this site includes helpful information about settling out of court.

How do I change or withdraw something I filed?

You can change a Notice of Claim, Reply, or other document filed with the court, as long as it is before the first court proceeding you have been asked to attend. If you want to change something after the first court proceeding, you will need the permission of a judge.

To change a document before your first court proceeding has begun:

  • Underline, initial, and date all your changes in the revised document
  • File a copy of the revised document at the court registry
  • Serve a copy of the revised document on each party in the claim

You can withdraw a claim or other filed document at any time by doing the following:

  • Complete a Notice of Withdrawal form
  • File a copy of the Notice of Withdrawal at the court registry
  • Promptly serve the notice on all the parties who were served with the claim or other document

For more information, see Rule 8 of the Small Claims Court Rules. In addition, you can use these checklists to be sure you have taken all the required steps: Serving Documents Checklist, Starting a Claim Checklist, Replying to a Claim Checklist.

What if the defendant does not reply to my claim?

If the defendant was in British Columbia when you served the Notice of Claim, then a reply is due in 14 days. If the defendant was out of the province, the deadline is extended to 30 days. If the defendant has not responded within the required time limit, you can ask the court for a Default Order. Complete the Application for a Default Order. File the application at the same court registry where you filed the Notice of Claim. Provide the Certificate of Service that proves the defendant received the claim. Pay the fees and wait to hear back from the court.

What if the defendant opposes my claim?

The defendant may file a Reply to a Claim that disputes all or part of the claim you filed. They might even decide to sue you – this is called a counterclaim (see below). The court registry will send you a copy of the Reply. In addition, the registry will notify you that a date has been set for the next step in the court process.

In Small Claims Court, the process your case will follow depends on the location where the claim was filed. To learn about the next step in your case, see Court Processes.

The defendant made a counterclaim, now what?

The court registry will send you a copy of the defendant’s reply to your claim. If it includes a counterclaim, you must provide a reply by completing the Reply to a Claim form. The process you follow will be the same one that the defendant followed to reply to your claim. Learn more here.

What if I think someone else should pay the claim?

If you think someone other than you who should pay a claim, you can make a third party claim. For example, you are being sued for doing a roof that leaks but you think the leak is because the shingles were faulty. Follow the instructions below.

To make a third party claim, you must:

  1. Complete a Third Party Notice form.  
  2. File the notice at the court registry and pay your filing fee
  3. Serve the third party with these documents:
  • A copy of the Third Party Notice
  • A copy of the Notice of Claim
  • A copy of your Reply
  • A copy of any notice of settlement conference or trial that has been issued
  • A blank Reply form

The claimant and defendant have both filed documents, now what?

In Small Claims Court, the process your case will follow depends on the court location where the claim was filed. Registry staff will send you a notice indicating a date for the next step in the process for your case. This website provides helpful information and videos for every court process at every court location.

  1. Vancouver: Summary Trial, Simplified Trial, Trial Conference, Trial)
  2. Richmond: (Simplified Trial, Settlement Conference, Trial Conference, Trial
  3. All other areas: Settlement Conference, Trial

What if my case is about an automobile accident?

If your case is about a motor vehicle accident and you are only disputing liability for property damage, you will go directly to trial. You will not have to go to a settlement conference. If your case involves personal injury, read the information below.

What if my claim involves personal injury?

If you are claiming damages for injury to yourself, the maximum amount of your claim must still be $35,000. In addition to the Notice of Claim form, you must also file a Certificate of Readiness form. The certificate must:

  • Say that you are willing to discuss settling the entire claim at a settlement conference
  • Be filed within six months of the date you served the Notice of Claim (if you have not done this step, see Notice of Claim)
  • Have attached to it all medical and other reports and records that you intend to rely on to prove your claim for expenses and losses
  • Be mailed with copies of all the attached documents to the other side, usually ICBC

What is a summary trial?

At the Vancouver Courthouse, downtown at Robson Square, financial debt claims under Rule 9.2 go to a Summary Trial. These are cases where the claimant’s legal matter involves loaning money or extending credit (i.e. credit card debt, overdue loans and overdraft). The claim must be under $35,000.

Claims may only be filed at the court registry nearest where the defendant lives, carries on business, or where the transaction took place. Summary trials do not follow the same court process nor the formal rules of procedure and evidence as regular trials do. To watch a video and learn more, see Vancouver Summary Trials.

What is a simplified trial?

At the Vancouver Courthouse, downtown at Robson Square, and Richmond Courthouse, all claims between $5,001 and $10,000 – except financial debt claims under Rule 9.2 and personal injury claims – go to a simplified trial. A ‘Justice of the Peace’ (an experienced lawyer), who can also be called an adjudicator, hears Simplified Trial cases. Most of the trials last less than one-hour. To watch a video and learn more, see Vancouver Simplified Trials.

What is mediation?

Mediation is a way to resolve disputes where a neutral third party helps both sides to find a solution. Mediation is an alternative dispute resolution technique that generally costs less time and money than going to court. In addition, it has the added benefit of helping the disputing parties to maintain a more positive relationship.

Claimants and defendants are encouraged to use mediation to resolve disputes. If one party requests mediation, then the other party is required to participate and must share the costs. To learn about mediation, click here. For more about mediation, see the Ministry of Justice’s page on Mediation in BC. To find a qualified mediator in British Columbia, visit the website of Mediate BC or the BC Arbitration and Mediation Institute.

What is a settlement conference?

A settlement conference provides both parties with the opportunity to sit with a Provincial court judge to explore ways to settle their case, without going to trial. The purpose of a Settlement Conference is to settle the case and if necessary, to prepare the parties for trial. The judge that sits in a settlement conference acts as a mediator and legal resource – he or she will NOT be the same judge that hears the cases if it goes to trial. Settlement conferences are mandatory in all BC courts, except Vancouver and except for some motor vehicle accident cases. To learn more, see Court Processes.

What is a trial conference?

Trial Conferences are only held in Vancouver Small Claims Court. A Trial Conference is a meeting between both parties in a dispute and a Provincial Court judge. The purpose of the conference is to determine the amount of time the case will be need for the trial. The judge will ask the parties about the witnesses and evidence they intend to present. The judge may also issue orders for either party – such as an order to provide medical information, financial information, etc. The purpose of the Trial Conference is to ensure a just, speedy and inexpensive resolution of the claim. To watch a video and learn more, see Vancouver Trial Conference.

How do I prepare for my case?

On this website, you can learn about the different steps in the Court Process that your case will follow. There is an overview video and each specific process also includes a video that will help you gain a better understanding about how to prepare. Take the time to review this information so that you have a better understanding of next step in your case. You can use the Trial Preparation Checklist to be sure that you are organized and ready to present your case.

If your case is going to court for a settlement conference, trial conference or trial, the Ministry of Justice has produced a guide called Getting Ready for Court that will help you understand the process. There is an excellent manual produced by the Law Student Legal Advocacy Program called Small Claims Procedure. It provides in-depth information about all aspects of moving a case through Small Claims Court. You can also read The Law Centre Factsheet: Preparing for Trial. And, the BC branch of the Canadian Bar Association has audio and text scripts online called Going to Trial in Small Claims Court.

How should I prepare for trial?

When do I present the witnesses?

You will not be expected to bring witnesses to a mediation session, a settlement conference nor a trial conference. However you will have to summarize what they would say if they were in court. It is helpful to obtain signed witness statements or to have written summaries of what they will testify about. You will be expected to bring witnesses to trial and they should be prepared for cross examination. For more, read Getting Ready for Court.

How do I present evidence?

You must bring all of the relevant documents regarding your case to your mediation session, settlement conference, and/or trial. You will not be expected to produce witnesses at a mediation session or settlement conference. However you will have to summarize what they would say if they were in court. At a settlement conference, you can ask the judge questions about how to present your evidence. For more about preparing evidence, read Getting Ready for Court.

What is the protocol in the court?

Generally speaking, cases are heard Monday to Friday from 9:30 am to 12:00 noon and from 1:30 to 4:30 pm. A daily court list is published that describes the cases that will be heard in each court house and each courtroom. Be sure that you are in the right courtroom when your case is called.

When the Judge first enters the Courtroom, the cases to be heard that day will usually be read out. When your case is called, stand up and identify yourself. You should then remain seated until your case is called again. When your case is called come forward and reintroduce yourself before taking your place at the litigant's table. You can then begin your case. In the courtroom, the judge is addressed as ‘Your Honour’. The other party is usually referred to as Mr. LAST NAME or Ms. LAST NAME. When speaking to the Judge, always stand and speak in a clear voice.

Members of the public do not have to wear anything special, but wearing business-like clothing shows respect for the serious nature of the court. Turn off cell phones and other electronic devices. Cameras are not permitted without permission. Conduct yourself in a professional manner. Be organized and have documents at hand. Be honest and confident – NOT righteous and arrogant. Shouting, rude behaviour and threats are not tolerated.

Tips for appearing in court

Small Claims Court is not as formal as some of the others, but it is still a court. It is important to be prepared before you go before a judge. Here are some tips:

  • Dress properly. Wear clean clothing in good repair. Dress your best. Be well groomed.
  • Write down all the points you want to make so they are clear and in a logical order. You won’t be allowed to read the list, but you can use it as a guide.
  • Bring all your evidence with you. Gather all the documents relevant to your case, including cheques, invoices, receipts, photographs, expert reports, contracts, warranties, broken objects or whatever is needed to show your losses.
  • Bring your witnesses to a trial, but do not coach them or give them memorized speeches. Do not ask leading questions: simply ask them to tell what they know in their own words about the matter. The judge can and probably will question them and you.
  • Speak clearly and slowly. Tell the court exactly what damages you have suffered and what they have cost you. Be prepared to prove the damages with receipts, estimates, photos or other proof.

What if I can’t make a trial date set by the court?

If you discover that you cannot attend a trial date, you will need to request an adjournment (to postpone it to another date). Only a judge can adjourn a trial. Complete the Application to a Judge form to change the date of your trial. The registry staff will tell you when you will have to appear in court to make the request. The application form will have to be served on the other parties to the lawsuit at least seven days before the date set for you to appear in court.

If there is not enough time before the trial to make an application to adjourn it, you or someone representing you will have to appear in court on the date set for the trial to request the adjournment. The judge must be satisfied that the postponement is unavoidable and an injustice will occur if the trial proceeds.

What if I miss the trial?

If a claimant does not attend the trial, the claim will be dismissed. If a defendant or third party does not attend, the claim will be allowed and a judgment will be granted against the absent party.

What if I need an interpreter?

The court does not provide interpreters for Small Claims Court. If you need an interpreter you will have to provide your own. A friend or relative can provide this for you. The court is not responsible for the accuracy of interpretation. For a list of qualified interpreters, visit the website of The Society of Translators and Interpreters of BC.

What is the Civil Resolution Tribunal?

The CRT offers new ways to resolve your disputes and legal issues in a timely and cost-effective manner. It is a new online tribunal that claims for $5000 or under will go through. It allows for online negotiation as well as adjudication to help you settle your dispute. For more information visit Civil Resolution Tribunal.

When is a claim exempt from the CRT?

If you apply to Provincial Court for exemption from the CRT process a judge may order the CRT to not facilitate or adjudicate a claim if:

  • CRT doesn’t have jurisdiction or
  • It is not in the interests of justice and fairness for the CRT to deal with the claim (see CRT Act s. 12)

The application for exemption must be filed within 14 days of a response being made in the CRT.

What if I am unhappy about the CRT adjudicator’s decision?

You can file a notice of objection with the CRT within 28 days of receiving the decision.

Guide #4 - Replying to a Claim (PDF)

It is important that you have read Small Claims Court guide #1, What is Small Claims Court?, prior to reading this guide.

If someone is suing you in small claims court, you will receive a notice of claim or a notice of Civil Resolution Tribunal claim. For most people, this raises a lot of questions. This guide will answer some of those questions and give you information that may help with some of the decisions you'll have to make.

If you decide to oppose the claim, the guide will tell you how. If you simply want a reasonable payment schedule, it will tell you how to arrange that.

If you are the person making the claim and the person you are suing makes a counterclaim against you, this guide may provide help with some of the decisions you'll have to make.

Read the guide first and then decide what action you want to take.

Note: From time to time, the Ministry of Attorney General and the Provincial Court run pilot projects to explore ways to improve the small claims court. If the registry where your case is filed is running a pilot project, it might not follow the process in this guide. You can find more information on the pilot project processes or from your court registry.

  1. I have received a notice of claim or a notice of Civil Resolution Tribunal. What if I just do nothing?
  2. What if I want to pay the claim?
  3. What if I don't agree with the claim?
  4. What is a reply?
  5. How much time do I have to file my reply?
  6. Where do I get a reply form?
  7. How do I fill out the reply?
  8. What do I do with my reply, after I have filed it out?
  9. What happens next?
  10. What if I think there is someone else who should pay?

1. I have received a notice of claim or a notice of Civil Resolution Tribunal claim. What if I just do nothing?

The one thing you should NOT do is ignore the claim. If you do nothing, the other party can get a judgment against you, just as if there had been a trial.

2. What if I want to pay the claim?

You may agree that you owe what is claimed. If that's the case, you can pay it directly to the other party. Or you may contact the other party to make some arrangements that you can both live with and the other party can withdraw the claim. Either way, that will end the lawsuit.

Alternatively, if you have reached an agreement, you may both sign a consent order and file it with the registry or the other party may file a payment order with the registry. Nothing further would happen with the lawsuit, unless the terms of the agreement were not followed.

3. What if I don't agree with the claim?

If you were served with a notice of claim and if you and the claimant cannot agree, either on the claim itself or on the terms of payment, there are several things you can do:

  • If you do owe what is claimed, but can't pay it right away and can't agree with the claimant on a payment schedule, you can ask the court to set a schedule of payments that you can handle.
  • If you don't agree with the claim, you can deny all or part of what the claimant says.
  • You can make a claim against the claimant.

Whatever you decide, the reply is the form you will use.

If you feel someone else is responsible for the claimant’s claim, you may add this person as a party by filing a Third Party Notice form.

If you were served with a notice of Civil Resolution Tribunal claim:

If a response was filed and served in the Civil Resolution Tribunal (CRT), and is attached to the notice of Civil Resolution Tribunal claim, no reply is required to be filed in the Provincial Court. The response to the claim in the CRT continues as the reply in Provincial Court. This may be a response to a claim, counterclaim or third party notice.

If you do have to file a reply to the notice of Civil Resolution Tribunal claim, you can do any one or more of the options above for a defendant who was served with the notice of claim, except you cannot make a claim against the claimant or add another party without the permission of a judge. Again, whatever you decide, the reply is the form you will use.

4. What is a reply?

The reply is your answer to the notice of claim or notice of Civil Resolution Tribunal claim. It is a special form you will use to tell:

  • what you disagree with in the notice, and why
  • what, if anything, you agree with
  • what, if anything, you are claiming against the party, and
  • whether you want the court to set a payment schedule

5. How much time do I have to file my reply?

If you were served your notice of claim or notice of Civil Resolution Tribunal claim in British Columbia, you have 14 days from that date to file your reply. If you were served your notice of claim/notice of Civil Resolution Tribunal claim outside the province, you have 30 days to reply.

If you did not file your reply and the time limit to do so has passed, you can still ask the court for permission to file a reply after the time limit but you will have to have a good reason for your delay.

6. Where do I get a reply form?

When the claimant gave or sent you the notice of claim, a blank reply form should have been included. If the claimant gave you a notice of Civil Resolution Tribunal claim, a blank reply form would have been included to parties who did not respond to the claim in the CRT.  If you need a blank reply form (SCR Form 2), or if you need another form, you can get them off the website under Small Claims forms or at any provincial small claims registry. A Service BC office may have the forms.

7. How do I fill out the reply?

The small claims court forms are specially designed to be used by people who are not lawyers. You may find all the help you need on the sheet that is attached to the front of the form. You may also wish to use the online Filing Assistant, which will prompt you through a series of questions that will help you complete the reply form. You can find the Filing Assistant on the Court Services Online website. More information about completing the form is included below. We’ll look at each section in the reply form and go through it step-by-step.

TO:

This is where you put the name of the claimant. Simply copy the claimant's name, address and telephone number from the notice of claim/notice of Civil Resolution Tribunal claim.

FROM:

This is where you put your own name, address and telephone number. Copy your name as it appears on the notice of claim/notice of Civil Resolution Tribunal claim.

The address given on the notice may not be the right one. Be sure the address you give is correct because this is where the registry will send any further notices or information to you. If your address changes at any time, be sure to notify the small claims court registry and all other parties to the lawsuit by completing a notice of change of address form. Otherwise, they will continue to send mail to your old address and you won't know what is happening in your case.

DISPUTE:

This is where you tell what you disagree with in the claim. You should take some care with this part.

Look at the "How Much" section of the claim. If the claim has more than one part - a, b, c, and so on - then you should reply to each part separately, using the same letters. 

If there is anything in the claim that you agree with, be sure to include that here. Otherwise, the claimant might have to spend money to prove it in court. The judge could order you to pay the claimant back for money that was wasted proving something that was never really an issue.

Try to be brief. You may have other quarrels with the claimant, but don't include them here. Stick to only those items that appear in the claim under "How Much". Don't worry about using "legal language". Just make your point in your own words.

Example 1 – Dispute

You are a roofer. You put a roof on an addition to a customer's house and now the customer is suing you. They say the roof leaked and they had to pay $1,250 to fix it. In the “How Much” section they say:

a) Cost of replacing chair - $479.00
b) Cost of cleaning carpet - $135.00
c) Cost of repairing roof - $1,250.00

You might say, in your “Dispute” section:

a) I don't know about any chair in the area that could have been damaged by a leak from the roof.
b) There was only a small rug in the room and it would not cost $135 to clean it.
c) If there was a leak at all, it was caused by faulty shingles.

AGREEMENT WITH THE CLAIM:

Most of us want to pay what we owe. Often the reason we don't is that we simply can't. Or we can't pay it right away. Sometimes installment payments can be the answer. Or a delayed payment date might satisfy both sides.

If you want to pay the claim but you need some time - and you can't come to an agreement with the claimant - fill in this space with the sort of payment arrangements you want to make.

Example 2 – Agreement with the Claim

Say you are the roofer in Example 1. You admit that you owe the $1,250, but work has been slow lately and you have a lot of other obligations. You might say this: “I will pay $300 a month, on the first of each month, starting in June 2014 until August 2014, and $350 on September 1, 2014.”

Example 3 – Agreement with the Claim

Or, if you were due to be paid for a big job in July, you might say, “I will pay $1,250 before September 1, 2014."

COUNTERCLAIM:

(Information in this section does not apply to a defendant where the proceeding was started by a notice of Civil Resolution Tribunal claim, unless the defendant has permission of a judge to make a claim against against the claimant.)

If you have a claim to make against the claimant, this is where it goes. For example, if the roofer in Example 1 hadn't been paid for the work, he might make a counterclaim for the amount owing on the invoice. A counterclaim is just another claim, like the one in the notice of claim, except that it is made by the defendant, against the claimant. It is important to correctly identify who you are suing.

For more information about making a counterclaim, read guide #2: Making a Claim for Proceedings Initiated in Small Claims Court and guide #3: Making a Claim for Proceedings Previously Initiated Before Civil Resolution Tribunal. Your ServiceBC office may also have the guide.

HOW MUCH?

This is where you say what you are claiming in your counterclaim. Again, look at guides #2 and #3 for more information.

8. What do I do with my reply, after I have filled it out?

The next step is to file the reply with the court. You do that by taking or mailing it to the small claims registry. The address will be on the notice of claim or notice of Civil Resolution Tribunal claim) you received. If you have completed the reply form online, make sure you print and file it at the registry.

When your reply is filed, you will be asked to pay a filing fee unless you have agreed to pay the full claim. If you have set out a counterclaim there will be an additional fee. The fee for filing a counterclaim will depend on the amount of the counterclaim. You may pay by cash, personal or company cheque, certified cheque, money order or bank draft, payable to the Minister of Finance.

9.  What happens next?

Once the registry has accepted your reply form, they will send a copy to each of the other parties in the case (usually there is only the claimant).

If you had agreed to pay all or part of the claim, the claimant may contact you to sign a consent order set- ting out the terms for payment or the claimant might file a payment order at the court registry.

If the claimant doesn't agree with your proposed payment schedule, you can ask for a payment hearing or the claimant may summons you to a payment hearing so that the payment schedule can be set by the court. You can read more about payment hearings in guide #7: Getting Results.

If the Claim was Initiated in Small Claims Court

If your offer is not acceptable to the claimant, a settlement conference is usually the next step. You will receive a notice in the mail, telling you where and when it will be held and you must attend. You can read more about the settlement conference in guide #6: Getting Ready for Court.

The judge at the settlement conference will discuss with both of you the possibility of settling the claim. If you have asked in your reply for a payment schedule, that will be discussed at the settlement conference.

If the Claim is Continued from the CRT

If your offer is not acceptable to the claimant, the next step is for the claimant to prepare and file a certificate of compliance. 

The certificate of compliance is a document used to tell the court and each other party that the claimant has complied with the court rules and that his or her case is ready to continue. The certificate of compliance must be filed within six months after the claimant served the notice of Civil Resolution Tribunal claim on all other parties and before a settlement conference or trial conference is held. Then, within 14 days of filing the certificate of compliance, the filing party must serve a copy of the certificate and copies of all attached documents on each of the other parties. Once the certificate of compliance has been filed, the registry will set a date for a settlement conference or trial conference.

Remember that at any stage you are always free to try to work out some agreement with the claimant, which will put an end to the lawsuit.

10. What if I think there is someone else who should pay?

(Information in this section does not apply to a defendant where the proceeding was started by a notice of Civil Resolution Tribunal claim, unless the defendant has permission of a judge to make a claim against another person. However, if a claim was made against a third party in the CRT and filed with the notice of Civil Resolution Tribunal claim, that claim continues.)

It may be that there is someone else who should be responsible for paying the claim.

This is called a "third party claim". If you have a third party claim, you will fill out the form and file it in the registry, just as you did with your reply. There is a fee for filing a third party notice.

Example 4 – I think someone else should pay

The roofer in the earlier example might feel that if the roof does leak, it must be because the shingles were faulty. In that case, he might issue a third party notice against the supplier of the shingles. He can say, in effect, “I don't agree that there is anything wrong with the roofing job but if there is, then it is the shingle supplier who should pay you, not me.”

Then you have to let the third party know about your claim. You do this by serving the third party with these documents:

  • a copy of the third party notice
  • a copy of the notice of claim
  • a copy of your reply
  • a copy of any settlement conference, mediation session, trial conference or trial, if one has been issued
  • a blank reply form

A third party notice must be served in the same way as a notice of claim. For more information about service, see guide #5: Serving Documents.

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