Personal Injury claims worth $25,000 or less should be pursued in Small Claims Court. While it can be difficult to determine the value of the claim if the injuries sustained are minor or do not last for a long time, the Small Claims Court will likely be the best choice. In some cases, even claims estimated to be worth more than $25,000 may be best pursued in Small Claims Court. These will be discussed in another article. The following paragraphs provide a brief summary of the steps involved in a typical personal injury claim pursued in Small Claims Court. Please note that these steps may vary from case to case.
Filing and Serving the Notice of Claim
The lawsuit is started by filling out and filing a Notice of Claim at the Provincial Court Registry nearest to (1) where the Defendant lives or carries on business; or (2) where the accident took place. The Notice of Claim will state the name of the person or company you are claiming caused your injuries (the “Defendant”), when and how the accident occurred, and the damages you suffered. As the value of the claim will not normally be determined at this stage, the Notice of Claim will usually state the maximum amount recoverable, which is $25,000. If the claim is against a company, a corporate search will also need to be attached. You will be charged a fee to file the Notice of Claim, which will form part of your overall claim. You will then serve the Notice of Claim on the Defendant. This must be done within 12 months of having filed the Notice of Claim or the claim will expire. There are limitation periods for commencing a lawsuit. In personal injury matters, the limitation period is usually 2 years, however, there are some exceptions to this, so you should always obtain legal advice if you have been injured in an accident.
Receipt of the Defendant’s Reply
Once the Defendant has been served with the Notice of Claim, the Defendant must file a Reply within a set time frame. After a Reply is filed, the Court Registry will provide you or your lawyer with a copy of the Reply. No matter what the facts of the accident are, the Defendant will typically deny that he or she caused the accident as well as deny that you were injured as a result of the accident. In some instances, the Defendant will admit to causing the accident but will still deny that you were injured as a result of the accident.
Third Party Notice
If a Defendant thinks someone else is responsible for all or part of your damages the Defendant may make a claim against that person or company by serving them with a Third Party Notice.
In a personal injury matter you must be able to prove to the Court that: (1) the Defendant’s action or failure to act was negligent; (2) the Defendant’s negligence caused your injuries; (3) as a result of those injuries you suffered loss or damage; and (4) what efforts you have made to minimize your loss or damage (i.e. following treatment recommendations). To prove these items you will need to obtain documentation and produce witnesses who can support your claim. In a Small Claims matter, this will usually involve obtaining: medical records, a report from your family doctor, receipts for medication and any other treatment received. It may also include employment records if you missed time from work as a result of the accident. If liability is in issue then documentation relating to the accident itself will also be important. Collecting this documentation at an early stage can be vital to your case.
Certificate of Readiness
You must file with the Registry, within six months of serving the Notice of Claim and before a Settlement Conference can be held, a Certificate of Readiness attaching copies of: (a) all medical reports; and (b) all records of expenses or losses incurred or expected. The Certificate of Readiness and attachments must then be served on all other parties within 14 days of being filed.
Before a trial date can be set, a Settlement Conference must take place. All parties will be provided with a Notice of Settlement Conference from the Court Registry confirming the date, time and place of the Settlement Conference. You must bring with you all the relevant documents and reports. You can attend the Settlement Conference with or without a lawyer. At the Settlement Conference, you and the Defendant (in many cases this will be the insurer for the Defendant) will each have an opportunity to explain your side of the case in front of a Judge. The Judge will try to use the information obtained to facilitate settlement discussions. If a settlement cannot be reached, the Judge will move on to discuss issues related to preparing for trial. Settlement Conferences are usually set for 45 minutes to 1 hour.
Any party to the proceeding can file and serve a Notice to Mediate on the other parties. The parties can either agree on who the mediator will be or they can apply to have a mediator appointed. The mediator (often another lawyer) will try to help you reach a settlement with the Defendant. Unlike the Settlement Conference, mediation can be scheduled for a longer time frame that may be more helpful in reaching a settlement.
If you are unable to settle your claim, it will proceed to trial before a judge (there are no juries in Small Claims Court). Your side of the case will go first. Typically, you or your lawyer will start with some opening comments, explaining what the case is about and then call the necessary witnesses to support your claim. Your witnesses will generally include yourself, your doctor and a friend or family member who can comment on your injuries. If liability is an issue, you may also call someone who witnessed the accident. Each witness will be questioned first by you or your lawyer and then by the Defendant or the Defendant’s lawyer. Documents or other evidence you want to rely on will usually be provided to the court through your witnesses. When all of your witnesses are finished, the Defendant or Defendant’s lawyer will present an opening followed by the Defendant’s witnesses. You or your lawyer will also be able to ask questions of the Defendant’s witnesses. In some cases, the Defence will not call any witnesses. Once these witnesses have finished giving evidence, each party will provide the Judge with closing arguments. These arguments will summarize the facts and the law that relate to your case. After the parties have finished presenting, the Judge will decide the outcome of your case. Sometimes the decision is made the same day but in many cases, the Judge makes his or her decision at a later date. In this case, the Judge usually provides written reasons for his or her decision which are often published on the Court website.
For a more detailed explanation of Small Claims procedure see the Small Claims Guides available from your local Courthouse or from the Ministry of the Attorney General’s website: www.ag.gov.bc.ca.
*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.