Making a Claim

To make a claim in small claims court you must do two things:

The notice of claim is the document you will use to do both.

The notice of claim form is designed for people who are not lawyers. You may find all the help you need on the sheet attached to the front of the form. If you would like more information, this booklet is for you. It will answer some often-asked questions and describe, step by step, how to fill out the notice of claim and what to do with it.

What is the notice of claim?
The notice of claim is the key to the whole lawsuit. This document tells:

Where do I get a notice of claim form?
You can get one from any small claims court registry. If you can't go there yourself, you can telephone or write and ask them to send you one. If there isn't a small claims registry near you, your government agent may have the forms. (Small Claims forms are also available on-line or you may wish to use the Filing Assistant. The Filing Assistant will prompt you through a series of questions that will help you complete the notice of claim form.)

The notice of claim is a special form with several copies attached, and they are not all the same. If you use the form provided by the court you will be sure to have the copies you need.

How do I fill out the notice of claim?
Let's look at an actual notice of claim and go through it step by step.

FROM:

If you are the claimant all you need to put here is your name and your mailing address. This seems simple, and in most cases it is, but it's important to make sure you name the right claimant. For example, if you have a company, should you or the company - or both - be named as claimant? See the examples on the following pages to help you decide.

Your mailing address is important because this is where the court will send the reply to your claim, and any other notices or other documents in connection with your case.

If your address changes at any time, be sure to notify the court and all other parties to the lawsuit. Otherwise, they will keep sending mail to you at your old address and you won't know what is happening in your case.

If you are under 19 years of age, you must start the claim through an adult who lives in the province and is willing to act as your litigation guardian. This person must file at the registry a signed Certificate of Fitness and Consent to Act as Guardian Ad Litem.

If you cannot find an adult willing to assist in this case, you can contact the Child and Youth Services section of the Public Guardian and Trustee. You may contact their office by phone at 604-660-4444 or 1-800-663-7867 or by email at mail@trustee.bc.ca.

It is important to know that as a minor, if your claim is for personal injury, the adult assisting you must use a lawyer if your claim goes to trial.

TO:

This is where you will answer the question, Who are you suing?

You must be very careful when naming the defendant. If it's not exactly right, you may win your case but then be unable to get your money.

Example 1 You hired a roofer to put a new roof on your house. The roof leaks, so you sue "Zoro Carey Roofing Ltd." You win the case but they refuse to pay, so you ask the sheriff to go and take some of their goods to sell at auction. Now you find you're out of luck because the company's real name is "ZC Roofing Ltd." You have a judgment against the wrong party.

The rules about names are strict, but they are not complicated. Here are some rules you may need to know:

A. If you are suing an individual:

B. If you are suing a company incorporated in British Columbia:

Usually you can tell if you are dealing with an incorporated company because its name will end in "Limited" ("Ltd."), "Corporation" ("Corp."), or "Incorporated" ("Inc."). To get the correct name and address of the registered office you must request a company search. This can be obtained from:

Corporate Registry

There is a fee for a company search which must be enclosed with the request. Phone (250)387-5101 for details. (If you are calling from outside the Victoria area, you can avoid incurring long-distance charges by contacting Enquiry BC at 604-660-2421 from Vancouver or 1-800-663-7867 from elsewhere in BC, and ask to be transferred to 250-387-5101.)

A company search of a BC corporation can also be done at your local government agent's office, or through a title service listed in the Yellow Pages of your phone directory.

The registered office may not be the place where the company carries on business, but the registered office address is the one you will put on the notice of claim. You must file a copy of the company search in the registry when you file your notice of claim. The cost of the search can be added to your claim by the registry.

Usually you will name only the company as defendant.

 

Example 2 In the roofing company example we mentioned earlier, the unsatisfied customer was suing Zoro Carey Roofing Ltd. because that was the name on the invoice provided and Zoro Carey did the installing of the leaky roof. Even though Zoro Carey installed the roof, the defendant would still be ZC Roofing Ltd. because the agreement to install the roof was with the company. In the "To" column on the Notice of Claim, the customer would list ZC Roofing Ltd. as the defendant.

There are some cases, though, where both the company and the principal of the company would be defendants. These are cases where the principal has something to do with the case, beyond just being the principal of the company.

 

Example 3 ZC Roofing Ltd. applied for a credit application at a roofing supply company but the credit application is denied without a personal guarantee from Zoro Carey. Zoro signs the guarantee and, by doing so, is agreeing to pay the debt personally if ZC Roofing Ltd doesn't. If the roofing supply company decides to sue, the defendant in the action would be: ZC Roofing Ltd. and Zoro Carey

C. If you are suing a company incorporated outside British Columbia:

If the company has no assets in BC, you should start your claim in the jurisdiction where the company is incorporated. See Rules 18 (6) and (6.1).

You may start a claim in BC against a company incorporated outside BC if the company has assets in BC and is not an extra-provincial company [see Rules 18(6) and (6.1)]. It is strongly recommended that you do a company search before filing the notice of claim. The company search will help you obtain the correct legal name of the corporation. Having the correct legal name will increase your ability to enforce a judgment if the court rules in your favour.

D. If you are suing a business which is not an incorporated company:

Contact your local business licence office and ask for

You will want to name both the business and the owner so that if you get a judgment you can collect from either of them.

 

Example 4 Zoro's wife, Ann, has her own landscaping business. It is not an incorporated company. If one of her suppliers wants to sue her because she didn't pay a bill, the supplier should name as the defendants" ANN CAREY, carrying on business as ANN'S LANDSCAPING, and ANN'S LANDSCAPING.

You may use "c.o.b.a." as a short form for "carrying on business as" if you wish.

E. If you are suing a partnership:

This is very much like suing a business. Name the partners and the partnership.

 

Example 5 If Ann, in the above example, was in partnership with her sister Joan, then the defendants would be: ANN CAREY and JOAN KOSKI, c.o.b.a. A/J LANDSCAPING, and A/J LANDSCAPING.

F. If you are suing a society:

This is also very much like suing a business. You must obtain a printout of a search showing the most recent address of the society. The search is done through the Corporate Registry, and you can get the telephone number and address from the section above which deals with suing a company incorporated in British Columbia.

G. If you are suing more than one defendant:

You may name more than one defendant if the claims against each of them are related - as in our examples above. If you need to, you can divide the "TO:" space in half and use each half for one defendant, like this:

H. If it was an auto accident that led to your claim:

You should name as defendants both the driver and the registered owner of the vehicle. You can get the owner's name and address by sending the licence plate number, the date of the accident and the claim number (or as many of these items as you can) to:

There is a fee for this information, which must be enclosed with the request. Telephone 604-661-2233 or 1-800-464-5050 for details.

I. If you are suing the Province of British Columbia:

You should name as a defendant:

This is the legal name of the Province of British Columbia.

WHAT HAPPENED?

This is the part where you tell what the case is about. You should think about this and try to put down only the facts that are necessary to make your case.

Example 6 The customer who was suing the roofer (see Example 1) might say this: "ZC Roofing Ltd. put a new roof on my house at 123 King Street Vancouver, BC. The roof leaks and ZC Roofing Ltd. has refused to fix it. My furniture and carpeting were damaged and I had to hire another roofer to fix the leak."

You do not say, "I have invoices from Ace Carpet Cleaners to prove that the carpet was damaged." That is evidence - what you will use to prove the claim. It doesn't belong here.

You don't have to use "legal language". Just tell what happened. That doesn't mean you can leave out essential details. The defendant has to know exactly what the claim is about. Also, the judge will read this document to learn about your case.

Notice that in our example the address of the house is given. The roofer will have no trouble knowing which job this case is about.

WHERE?

You may have already answered this question in the "What Happened?" section. It is here so the court registry staff can be sure that your claim is being made in the right location. (We'll explain what that means later.)

You don't need the complete address here - the name of the city or town will do.

If the case involves a breach of contract, tell where the contract was made or where the payments were to be made.

WHEN?

Again, you may have already answered this. It is here so the court registry staff can be sure that your claim is being made in time.

There are time limits to most legal actions, and they can be quite complicated. It all depends on what kind of claim you have. The homeowner in example 1 would have two years to sue for the damages caused by the leaky roof. But if the roofer were suing because the homeowner hadn't paid what he owed for the job, he would have six years to start that lawsuit.

If you think you might be running out of time and you are not sure what the time limit is, you may want to seek legal advice.

If you have tried to settle your differences and that hasn't worked, do not delay in making your claim.

HOW MUCH?

This is where you tell what it is you want from the defendant. If your claim has more than one part, separate them and show what you are claiming for each part. Be sure to make it clear how you arrived at the amounts you are claiming.

Example 7 Look back at Example 6. The claimant in that case might fill out the "How Much?" part like this:
a) Cost of replacing chair b) Cost of cleaning carpet c) Cost of repairing roof TOTAL	$479.00 135.00 1,250.00 $1,846.00

Example 8 A supplier is suing a customer for payment of a bill. The notice of claim might say, in the "How Much?" section:
a) Invoice dated May 1, 1987	$849.00
b) Interest at 24% per annum, pursuant to contract, from May 1, 1987 to the date of filing and	220.00
c) Annual interest
TOTAL	$1,069.00

A note about interest:

If you and the defendant had agreed on the rate of interest, this is the rate you must use if you are claiming interest - and it must be expressed as an annual rate. In Example 8, a term of the sale was that interest would be charged at two per cent per month or 24 per cent per year. The amount of interest that had accumulated up to the date of filing is calculated. Then a separate claim is added for the amount of interest that will add up between the filing date and the date the payment order is made. You don't have to actually do this calculation - just say that you are claiming annual interest.

If there was no agreement about interest, or if there was but you do not claim it, you will still be entitled to the rate of interest allowed under the Court Order Interest Act. This rate is set by the government and reviewed every six months. It is generally lower than the prevailing interest rates. You do not need to calculate it until it's time to file your payment order.

What if the defendant owes me more than $25,000?
You might have a claim for something more than $25,000, but still want to make it in small claims court. You can do that if you are willing to reduce the amount you are claiming to $25,000. Just say on the notice of claim, in the "How Much?" section, "I am abandoning the amount of my claim that is over $25,000."

The $25,000 limit applies to the total of everything you are claiming, including the value of any goods you might be asking for. But it does not include interest and expenses. So, if your claim was for a debt of $25,500, you could abandon the $500 and claim $25,000 plus interest and expenses. (The expenses you can claim in small claims court are very limited - generally, they amount to no more than the filing fee and a service fee.)

If you do abandon part of your claim, to bring it under the $25,000 limit, you may not sue for it in another court, or another small claims action. Once you have abandoned it, that part of your claim is gone and you can't sue for it again.

Is that all there is to the notice of claim?
You will see there is a space for "Filing Fees" and "Service Fees" just under your "Total". The registry staff will fill these in for you.

The filing fee is the amount you will have to pay to the registry when they accept your notice of claim. If you win your claim, the defendant will have to pay this back to you.

The amount allowed for the service fee varies depending on how you serve the notice of claim. (There is another booklet called SERVING DOCUMENTS that will give you more information about this.) Again, if you win, you can usually get the service fee back from the defendant.

The registry staff will fill in the "Total Claimed".

Under that figure are two boxes labelled `Debt' and "Other Than Debt". The registry staff will fill these in as well.

What do I do with my notice of claim, after I've filled it out?
The next step is to let the court know about your claim by taking the notice of claim to the small claims court registry. If you have completed the notice of claim form online, make sure you print and file it at the registry. Remember, if you are suing a company or a society, you must also have a printout of the search along with your notice of claim.

When your notice is accepted, you will be asked to pay the filing fee. You may pay this by cash, personal or company cheque, certified cheque, money order or bank draft, payable to the Minister of Finance.

It is possible to mail your notice of claim to the registry (don't forget the filing fee) but if you can, you should take it in personally. The registry staff will check your document for you and if they notice any errors you can usually fix them on the spot. You'll save the time it takes to mail documents back and forth.

How do I know which registry to take it to?
You have to file your claim in the small claims court registry nearest to either:

Example 9 Look back at our roofing company example. If your leaky roof is in Vancouver and the roofing company is in Surrey, you have a choice. You could file the claim in Vancouver (where the event happened) or in Surrey (where the defendant carries on business).

Once I've filed the notice of claim, what do I do next?
The next step is to let the defendant know about your claim. You do this by giving him or her the defendant's copy of your notice of claim. (This is called "serving" the notice of claim.) You can do this by registered mail.

If you don't want to use the mail, you can serve the notice of claim by handing it to the defendant personally. You can do this yourself or you can have somebody else do it for you. This might be a friend, who would do it as a favour, or it might be a professional process server, who would charge a fee. If you have someone serve it for you, be sure that the person completes the certificate of service that is printed on the back of one of your copies of the notice of claim. Along with the notice of claim, you also must serve a blank reply form which the defendant can use to reply to your claim.

There are special rules for serving a notice of claim on companies, partnerships and other businesses, municipalities and the Government of British Columbia. There are also rules for serving someone who is a minor, or who is out of the province or hard to find. (See Booklet #4: SERVING DOCUMENTS for information.)

If my case is about an auto accident, does ICBC have to be involved?
Yes. If you are suing for damages from an automobile accident, you must also serve a copy of the notice of claim on ICBC. The easiest way to do this is by registered mail. The address is:

ICBC Legal Department
#800 - 808 Nelson Street
Vancouver, BC V6Z 2L5

Then you must prove to the court that you've served ICBC. Complete the certificate of service that is printed on one of your copies of the notice of claim, and take or mail it to the registry with the proof of service. They won't set a date for settlement conference or do anything else on your file until they have that proof of service.

How soon do I have to get my notice of claim to the defendant?
You have a year to do this. After that time, your notice of claim will expire. If you wanted to continue after that time, you could apply for a renewal.

What happens next?
After receiving your notice of claim, the defendant may contact you directly and offer to pay the claim or try to settle the case in some way. You are free to make whatever arrangements you want at any time. Just because you have filed a notice of claim with the court, does not mean that you must continue with the lawsuit.

If you are satisfied with what the defendant offers, you should withdraw your claim. If the defendant offers payments, you could write an agreement as a consent order and file it at the registry. This can be enforced if payment stops.

If the defendant files a reply and agrees to pay all or part of the claim, but you don't agree with how it is to be paid, you can file a payment order and ask for a payment hearing so that the court can set a payment schedule.

If the defendant files a reply disputing your claim, the registry will send you a copy of it and set a date for a settlement conference.

The defendant normally has 14 days from the date the notice of claim was served to file the reply. (A defendant who is out of province when served with the notice has 30 days.)

To learn more about what to expect at the settlement conference, read Booklet #5: GETTING READY FOR COURT.

If the defendant does nothing, you can ask the court to give you a default order, which is enforceable just like an order made by a judge following a trial.

How can I get more information?
This is one in a series of booklets available from any small claims court registry.

The titles in the series are:

#1 WHAT IS SMALL CLAIMS COURT?
#2 MAKING A CLAIM
#3 REPLYING TO A CLAIM
#4 SERVING DOCUMENTS
#5 GETTING READY FOR COURT
#6 GETTING RESULTS
#7 COURT MEDIATION PROGRAM FOR CLAIMS UP TO $10,000
#8 MEDIATION FOR CLAIMS BETWEEN $10,000 AND $25,000

CIVIL RULES - For more detailed information you may want to look at the small claims court rules themselves. The rules have been written for non-lawyers.

The people behind the counter at any small claims registry are helpful. They cannot give legal advice and they cannot fill out your forms for your, but they will gladly answer many of your questions about small claims court procedures.

The information contained in this booklet is simply an overview of the significant provisions of the Small Claims Act and Small Claims Rules. It is not intended as a substitute for the Act or the Rules, which should be examined for specific information. Also, the information is not intended to be legal advice. If you have any legal questions, you should see a lawyer.

Updated: November 27, 2007