If someone
is suing you in small claims court, you will receive a notice
of claim. For most people, this raises a lot of questions.
This
booklet will answer some of those questions. It will give
you information that may help you with some of the decisions
you'll have to make.
If you
are a claimant and the person you are suing makes a counterclaim
against you, this booklet may provide some help with some
of the decision you'll have to make.
If you
decide to oppose the claim, it will tell you how. If you
simply want a reasonable payment schedule, it will tell
you how to arrange that. Read the booklet first and then
decide what action you want to take.
What
if I just do nothing?
The one thing you should NOT do is ignore the claim. If
you do nothing, the claimant can get a judgment against
you, just as if there had been a trial.
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 claimant. Or you may
contact the claimant to make some arrangements that you
can both live with, and the claimant 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 claimant may
file a payment order with the registry. Nothing further
would happen with the lawsuit, unless the terms of the agreement
were not followed.
What
if I don't agree with the claim?
If you and the claimant cannot agree, either on the claim
itself, or on the terms of payment, there are several
things that you can do:
How
much time do I have to file my reply?
If you were in British Columbia when you received the
notice of claim, you have 14 days from that date to file
your reply. If you were outside the province when you
received the notice of claim, you have 30 days to reply.
Even
after the time limit has passed, the court registry will
still file your reply, as long as the claimant has not
obtained a default order against you or had a hearing
date set to determine what you owe in default.
Even
if one of those things had happened, you can still ask
the court for permission to file a reply after the time
limit. You will have to have a good reason for your delay.
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 with it. If it was not,
or if you need another form, you can get one from any
small claims registry. If there isn't one near you, your
government agent may have the forms. 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
reply form.
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. This booklet will give you more information.
Let's
look at an actual 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.
FROM:
This
is where you put your own name, address and telephone
number. Again, copy your name as it appears on the notice
of claim.
The
address given on the notice of claim may not be the right
one. You must be sure that 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. 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 notice
of claim. You should take some care with this part. Look
at the "How
Much" section of the notice of 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.
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Example
1
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:
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| a)
Cost of replacing chair |
$479.00 |
| b)
Cost of cleaning carpet |
135.00 |
| c)
Cost of repairing roof |
1,250.00 |
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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.
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If there
is anything in the notice of 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 many other quarrels with the claimant,
but don't include them here. Stick to only those items that
appear in the notice of claim under "How
Much".
Don't
worry about using "legal language". Just make
your point in your own words.
AGREEMENT
WITH THE CLAIM:
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.
In the spaces to follow, you can tell what sort of payment
arrangements you want to make.
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.
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Example
2
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 1st of each month, starting
in June, 2004 until August, 2004, and $350 on September,
2004."
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Example
3
Of,
if you were due to be paid for a big job in July,
you might say:
"I
will pay $1,250 before September 1, 2004."
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COUNTERCLAIM:
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.
Fore
more information about making a counterclaim, read Booklet
#2: MAKING A CLAIM
which you can get at any small claims registry (or government
agent's office, if there is no small claims registry near
you).
HOW
MUCH?
This
is where you say what you are claiming in your counterclaim.
Again, look at Booklet #2: MAKING
A CLAIM, for more information.
What
do I do with my reply, after I've 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 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 the 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.
If you
can, you should take it to the registry yourself. The staff
there will check the form for you and point out any errors
or things you might have missed. They can't give legal advice
but they are experienced in dealing with small claims forms
and they can be very helpful.
If they
have to mail a form back to you for corrections, you may
run out of time.
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 setting 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 Booklet #6: GETTING
RESULTS.
If your
offer is not acceptable to the claimant, a settlement conference
is 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 Booklet #5: 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.
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.
What
if I think there is someone else who should pay?
It may be that there is someone else who should be responsible
for paying the claim.
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Example
4
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's the shingle supplier who should pay you,
not me."
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This
is called a "third party claim". If you have a
third party claim, ask your small claims court registry
for a third party notice. 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.
Then
you have to let the third party know about your claim. You
do this by serving the third party with these documents:
