Script 168 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia. This script discusses preparing for and attending your trial in Small Claims Court. Before a trial, most cases have a “settlement conference”
If the defendant (the person or company being sued) defends the lawsuit, both the claimant and defendant will receive a notice from the Small Claims Court registry advising them that they must attend a meeting called a “settlement conference.” A judge also attends, but this judge isn’t usually the same judge who presides over the trial if the case goes that far. The purpose of the settlement conference is to try to resolve or “settle” some or all of the issues between you, and if settlement isn’t possible, to help you prepare your case for trial. What happens at the settlement conference?
You must bring all the documents and reports you plan to use at trial to prove your side of the case. If you’re having trouble getting copies of the other side’s documents, the judge can order that copies of these documents be exchanged. The judge will discuss the claim with the two of you and see if the claim can be settled. If it can’t, the judge usually schedules a date for the trial. The judge can also dismiss the claim if he or she thinks it’s groundless. Think about a written offer of settlement
After the settlement conference but before the trial, you may want to prepare a written offer of settlement and “file” it with (i.e., submit it to) the Small Claims Court, then present it to the other side. The other side will have 28 days to accept it. If they don’t, and if the outcome at trial is much the same as your offer, the judge can order them to pay an additional penalty of up to 20% of your offer. What if you have to go to trial?
You’ll likely be the main witness for your case. But you’ll also want to think about what other witnesses and what expert witnesses and/or reports you’ll need to support your case. Ordinary witnesses can testify about facts that they personally know about
For example, they can testify about what they saw. But they can’t talk about what they heard one person say to another – that’s considered “hearsay” evidence and isn’t usually allowed to prove the truth of those statements. What about expert witnesses and/or reports?
Expert witnesses are the only witnesses who can give evidence about an opinion. If you intend to have an expert testify at the trial – such as a doctor for a personal injury claim – you must give the other side a summary of the expert’s evidence at least 30 days before the expert testifies. If you just want to use a letter or written report from the expert, you have to give the other side a copy of that report, together with a statement of the expert’s qualifications, at least 30 days before the trial. Then if the other side wants to “cross-examine” or ask questions of that expert at trial, they must let you know at least 14 days before the trial, and your expert must attend the trial in person. Repair estimates and estimates of the value of property aren’t considered expert evidence. But copies must still be given to the other side at least 14 days before the trial. And you can expect to have to call the person who prepared the estimate to explain it at trial if the other side wants to question them. You must make the arrangements for your witnesses to attend the trial
If a witness refuses to come voluntarily or you’re not sure they’ll attend, you can pick up a form called a Summons to Witness from the Small Claims Court registry. (You can also download this form from the Small Claims Court website.) The form tells you how to deliver the summons to the witness, who must receive it at least seven days before the trial. Expect to pay your witness’s fees and expenses
You have to offer to pay a witness’s reasonable travel expenses to attend the trial. You should also expect to pay your expert witness’s fees and expenses – you’ll want to determine that in advance before deciding whether or not to require the expert’s attendance at trial. You may be able to avoid the expense of having your expert personally testify at the trial by providing the expert’s opinion in writing to the other side well before trial, but if the other side wants to question your expert, you’ll have to produce your expert in person. Once the trial begins, how do you present your case to the judge?
In Small Claims Court, you don’t have to follow the strict rules of evidence followed in Supreme Court, and the judge will decide what rules or procedures to follow. However, the judge may understandably become impatient if the matter is technically difficult and you haven’t properly prepared your case. How do you proceed if you’re the claimant?
As the claimant, you will speak first. You might want to start with an “opening statement” and tell the judge briefly what your case is about. Then you can give your evidence. You’ll tell your story and produce any documents that help to prove your case. After, the defendant has a chance to cross-examine or question you on what you’ve said. You’ll then call your other witnesses and question them, so they can give their evidence to support your claim. You should ask open-ended questions like “What colour was the light?” not leading questions like “Was the light red?” The defendant is then allowed to cross-examine your witnesses. How do you proceed if you’re the defendant?
You should make written notes while the claimant is testifying. When the claimant has finished, you’ll get to cross-examine them. Your objective will be to get the claimant to admit things that help your case, or to weaken the claimant’s testimony by showing that the claimant has a poor memory, is mistaken, or is lying. Don’t worry if the claimant doesn’t actually admit that they are exaggerating or lying – what matters is that you have put your version to them fully and fairly. After the claimant and the claimant’s witnesses have finished, you get to tell your side of the story and call your own witnesses to testify. The claimant may then cross-examine you and your witnesses. The judge often asks questions too. What happens after the evidence is presented?
When all the evidence is finished, the claimant and defendant are usually allowed to explain their views of the case. Finally, the judge announces the decision or judgment
If the claimant wins, the whole amount – plus court costs for such things as filing fees, delivering the summons and witness costs – may be due immediately. Or the judge can make a Payment Order setting out a schedule for when the defendant is to pay certain amounts. If the defendant filed a Reply and forced a trial when they had no reasonable chance of defending it, the defendant might also be required to pay an additional 10% of the claim. On the other hand, if the claimant loses, the claimant may be required to pay the defendant’s court costs. And if the judge thinks the claimant put the defendant to the trouble and expense of a lawsuit when the claimant had no reasonable basis for success, the claimant might be made to pay a penalty of up to 10% of the value of the claim. As an alternative to trial, consider mediation
For all claims between $10,000 and $25,000, you can insist on the other side attending a mediation session. Mediation is a process that involves having a mediator (who is a neutral unbiased person) listen to both sides and attempt to resolve the dispute. If you want to try mediation, you fill in a form called a Notice to Mediate. Once you give that form to the Small Claims Court registry, a mediation session will be scheduled, which the other side must attend. Then if an agreement is reached, that settles the matter. At certain courthouses in BC – namely Vancouver, Surrey, North Vancouver, Nanaimo and Victoria – either side can use the Notice to Mediate for claims under $10,000 as well. Also, in these particular courts, some kinds of cases are automatically referred to mediation. If your case is one of these, the Court Mediation Program will send you and the other side a notice telling you when and where the mediation is going to be held, and you both must attend one meeting involving a mediator. There is a simplified trial process for Vancouver and Richmond
As part of a new pilot project, trials in the Vancouver Robson Square and Richmond courts for most claims up to $5,000 are limited to one hour and are decided by a justice of the peace instead of a judge. Details of this and other new procedures in these two courts can be found on the Small Claims Court website. Where can you get more information? [updated June 2008]
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