SMALL CLAIMS COURT—2011
PAPER 6.1
Choosing the Right Path: Small Claims versus
Supreme Court
These materials were prepared by Jonathan Lim of Fasken Martineau DuMoulin LLP, Vancouver, BC, for the
Continuing Legal Education Society of British Columbia, May 2011.
© Jonathan Lim
6.1.1
CHOOSING THE RIGHT PATH:
SMALL CLAIMS VERSUS SUPREME COURT
I.
Remedies: The First Jurisdictional Issue ............................................................................. 1
II.
Money: The Second Jurisdictional Issue .............................................................................. 5
A. Transferring the Claim: Provincial Court Æ Supreme Court .............................................. 5
B. Transferring the Claim: Supreme Court Æ Provincial Court .............................................. 6
III.
Practical/Strategic Considerations in Choosing the Court ................................................. 7
IV.
Impact of the Supreme Court Civil Rules on Small Claims Proceedings .......................... 11
A. Arguments in Favour of Using Supreme Court Rules in Small Claims Proceedings ............ 11
B. Arguments Against Using Supreme Court Rules in Small Claims Proceedings ................. 13
As a junior defence counsel at a large firm, where new files will frequently and magically appear on my
desk (already neatly organized into coloured binders and accordion folders), I am often guilty of not
paying enough attention to the preliminary issue of whether a particular action should be heard in the
Provincial Court or the Supreme Court. The obvious reason is because it is easier to simply assume that
plaintiff’s counsel, or a lay litigant, has chosen the correct court to commence the action in (this is bad).
This paper will explore some of the issues that need to be contemplated when deciding whether a civil
action should be heard in the Provincial Court (Small Claims) or the Supreme Court; how to transfer
a claim from one court to the other; and lastly, how the Supreme Court Civil Rules may impact on
small claims proceedings.
I.
Remedies: The First Jurisdictional Issue
The first issue to consider is whether or not the Small Claims Court has the jurisdiction to grant the
remedy requested by the claimant.
It is important to remember that generally, power flows to the Provincial Court from an outside
source while the BC Supreme Court has built-in generator. In legal terms, the Provincial Court is a
statutory court, which derives its jurisdiction and authority from statutes such as the Provincial Court
Act, R.S.B.C. 1996, c. 379; the Court Rules Act, R.S.B.C. .1996, c. 80; the Small Claims Act, R.S.B.C.
1996, c. 430; and the Small Claims Rules, B.C. Reg. 261/93. In contrast, the Supreme Court is a
superior court of record and “has inherent jurisdiction to regulate its practice and procedures so as to
prevent abuses of process and miscarriages of justice” (R & J Siever Holdings Ltd. v. Moldenhauer, 2008
BCCA 59 at para. 14).
In other words, unlike the statutes and rules that confer jurisdiction to the Provincial Court, the
Supreme Court Civil Rules do not confer jurisdiction to the Supreme Court in the same way. Rather,
the Supreme Court Civil Rules, generally speaking, are in addition to (i.e., cumulative), and not in
substitution of, the powers arising out of the Supreme Court’s inherent jurisdiction. Therefore, in any
given case, the Supreme Court is able to proceed under either the Supreme Court Civil Rules or its
inherent jurisdiction (see Bishop v. Minichiello, 2010 BCSC 1502, for further analysis of the S.C.’s
inherent jurisdiction).
6.1.2
However, this issue is unfortunately not as black and white as one would hope because there exists
several case authorities that state that the Provincial Court has a “limited inherent jurisdiction” to deal
with procedural matters and to grant equitable remedies to ensure that justice is done.
For instance, in the oft-mentioned Provincial Court case of R.K. v. McBride, [1994] B.C.J. No. 2791
(Prov. Ct.) (QL), Mondin J. held that based upon his interpretation of the Small Claims Act and the
Law and Equity Act, R.S.B.C. 1996, c. 253, the Provincial Court, in addition to its statutory
jurisdiction, also has a limited inherent jurisdiction that allows the court to grant equitable remedies
and address matters of procedure to ensure that justice is done. Therefore, Mondin J. made an order
prohibiting the disclosure or publication of the claimant/applicant’s identity, despite the fact that
there is no express statutory authority that allows the Provincial Court to grant equitable remedies.
McBride will be mentioned again in the last part of this paper.
Going back, then, to the first issue of whether or not the Small Claims Court has the jurisdiction to
grant the remedy requested, the primary source of authority of the Small Claims Court is found at s. 2
of the Small Claims Act:
Purpose
2(1) The purpose of this Act and the rules is to allow people who bring claims to the
Provincial Court to have them resolved and to have enforcement proceedings
concluded in a just, speedy, inexpensive and simple manner.
(2) Subject to this Act and the rules, in conducting a hearing the Provincial Court may
make any order or give any direction it thinks necessary to achieve the purposes of this
Act and the rules.
Section 3(1) goes on to generally describe the claims that can be heard by the Provincial Court:
Claims the court may hear
3(1) The Provincial Court has jurisdiction in a claim for
(a) debt or damages,
(b) recovery of personal property,
(c) specific performance of an agreement relating to personal property or
services, or
(d) relief from opposing claims to personal property
if the amount claimed or the value of the personal property or services is equal to or
less than an amount that is prescribed by regulation, excluding interest and costs.
(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or
malicious prosecution.
The Provincial Court Small Claims Handbook prepared by the Continuing Legal Education Society of
BC (the “Small Claims Handbook”) provides an extensive list of claims that are barred from the Small
Claims Court as a result of explicit statutory provisions or case law authorities. I have summarized
this list in a chart on the next page. For a more detailed analysis, including the applicable case law,
please refer to the Small Claims Handbook.
6.1.3
6.1.4
6.1.5
II.
Money: The Second Jurisdictional Issue
The second issue when considering whether an action should be heard in the Provincial Court or the
Supreme Court is the amount of money involved.
Currently, the amount claimed in the Notice of Claim must be $25,000 or less, excluding interest and
costs. If the claim exceeds $25,000, the claimant can choose to abandon the excess amount in order to
bring the claim within the Small Claims Court’s jurisdiction (Small Claims Rule 1(4)).
Note, however, that Small Claims Rule 1(5) requires the claimant to state on the Notice of Claim that
the amount over $25,000 is abandoned. The Small Claims Handbook suggests the following wording:
“The Claimant abandons the sum of $ [amount] to bring this claim within the jurisdiction of this
Honourable Court.”
The same principle applies with counterclaims. If a defendant is sued in Small Claims Court but
wishes to commence a counterclaim that exceeds $25,000, the defendant can either (a) abandon the
excess amount in order to bring the counterclaim within the jurisdiction of the Small Claims Court; or
(b) commence an action in the Supreme Court (Small Claims Rule 4(4)).
Small Claims Rule 4(9) provides an interesting safeguard: if a claimant abandons an excess over $25,000
to commence a Small Claims action and the defendant counterclaims by commencing an action in
Supreme Court, the claimant may withdraw his/her claim from Small Claims Court and (a) begin an
action in the Supreme Court and claim the higher amount, or (b) participate in the action begun by
the defendant in the Supreme Court and claim the higher amount.
Similarly, Small Claims Rule 1(7) provides that if a small claims action is transferred to Supreme
Court, the claimant/plaintiff can sue for the entire amount, regardless of whether he/she had already
abandoned the excess over $25,000 when first commencing the action in Small Claims Court.
It goes without saying that a claimant is not allowed to split the claim by bringing one action for
$25,000 and another action for the excess. However, where there exists multiple actions, each of
which are owed under separate obligations or instruments, separate claims can be brought on each
obligation as long as each claim is below the monetary limit (see Wah Loong Ltd. v. Fortune Garden
Restaurant (Richmond) Ltd., 2000 BCPC 163).
However, where separate claims relate to the same event or loss, the Small Claims Court may
consolidate the claims and the claimant will have to decide whether he wants to abandon the excess
above the $25,000 limit.
If there are multiple defendants, a claimant may file multiple Notices of Claim with respect to a single
event (as long as no single claim exceeds $25,000) and the total of all claims can exceed $25,000.
Similarly, there may be multiple claimants filing Notices of Claim against the same defendant(s) in a
single event as well. In either scenario, pursuant to Small Claims Rule 7.1(4), a judge may (a) hear at
one time evidence that relates to all the claims; (b) apply that evidence to all the claims; and (c) make a
decision in each of the claims.
Most commonly, jurisdiction-based dismissals and applications to consolidate claims are ordered at
settlement conferences pursuant to Small Claims Rule 7(14) or may be brought by way of an
application to a judge pursuant to Small Claims Rule 16(6).
A.
Transferring the Claim: Provincial Court Æ Supreme Court
Small Claims Rule 7.1 provides the authority for a Provincial Court judge to transfer a claim from
Provincial Court to Supreme Court:
6.1.6
Rule 7.1 — Transfers and Multiple Claims
Transfer of claim to Supreme Court
(1) If satisfied that the monetary outcome of a claim (not including interest and
expenses) may exceed $25 000, a judge must transfer the claim to the Supreme Court
(a) on application at any time, or
(b) on the judge’s own motion at the settlement conference or trial.
Note the wording that “if satisfied,” the judge “must” transfer the claim (or counterclaim). In personal
injury cases, a judge is required to consider medical records to assess whether it is more probable than
not that the claim may exceed the monetary jurisdiction of the Provincial Court (see Rosenthal v.
Burchell, [1999] B.C.J. No. 633 (QL) (Prov. Ct.)).
Furthermore, the decision to transfer an action to Supreme Court is based solely on this monetary
consideration. In other words, as stated in the Small Claims Handbook: “the court has no inherent
jurisdiction to transfer a case for other reasons, such as concerns over the multiplicity and complexity
of proceedings, or the desire of a party to utilize procedures provided for by the Supreme Court Civil
Rules (including discovery and summary trials).” For further analysis, see Shaughnessy v. Roth, 2006
BCCA 547 and Jeffries v. Henderson, 2009 BCPC 101.
Lastly, the court is required to consider the monetary value of the claim and a counterclaim separately,
so it is possible that a counterclaim exceeding $25,000 may be transferred to the Supreme Court but
the initial claim (which is under $25,000) will remain in Small Claims Court (as an example, see
Shaughnessy v. Roth, 2006 BCSC 531, aff’d 2006 BCCA 547). However, remember that a
claimant/counter-claimant can still choose to abandon the excess over $25,000 to keep it within the
monetary jurisdiction of the Small Claims Court.
Once the action has been transferred, Supreme Court Civil Rule 19-1 sets out the procedures to
follow.
B.
Transferring the Claim: Supreme Court Æ Provincial Court
Section 15 of the Supreme Court Act, R.S.B.C. 1996, c. 443 provides the authority for the BC Supreme
Court to transfer an action from the Supreme Court to Provincial Court:
Transfer to Provincial Court
15 A judge or master may transfer proceedings to the Provincial Court of British
Columbia if
(a) the proceedings are within the jurisdiction of the Provincial Court under
the Small Claims Act,
(b) a party to the proceedings applies to the judge or master, or all parties to
the proceedings agree to the transfer, and
(c) the judge or master considers it appropriate to do so.
As for whether a judge or master “will consider it appropriate to do so,” the Small Claims Handbook
summarizes the factors the Supreme Court will consider when hearing an application to transfer an
action from the Supreme Court to Provincial Court:
These factors include:
1.
The stage of the proceedings when the request to transfer the proceeding is made; for example:
a.
whether a transfer would result in a significant further delay;
b.
whether a delay would prejudice a party, because vital evidence might be lost, or
because a party has incurred costs not recoverable at Provincial Court;
6.1.7
c.
whether the application should have been made at an earlier date and whether an
explanation exists for the delay;
2.
The costs incurred to date or to be incurred, especially for pre-trial proceedings, by the litigants
and by the court system itself;
3.
The backlog of cases in the respective courts at the time of the transfer application;
4.
The need for specific types of pre-trial discovery procedures in the case;
5.
The potential effect of the case on other proceedings and on the rights and obligations of other
individuals and groups;
6.
Any complex or novel issues of law, and the difference in the rights of appeal for the parties if,
for example, a need exists for a definitive decision from the Court of Appeal; and
7.
If the matter is set for jury trial, a party’s right to a jury trial that is particularly important in the
circumstances.
(see Long v. Jackson (1994), 88 B.C.L.R. (2d) 46 (S.C. Master))
As for factor #7, note that one year after the Long decision was released, former Supreme Court Rule
39(26.1) (now Supreme Court Civil Rule 12-6(4)) was added. This Rule provides that the Supreme
Court can transfer an action to Provincial Court even if a jury notice has already been filed.
In Hiebert v. Brown, [1995] B.C.J. No. 2015 (QL) (S.C. Master), the Court set out some further factors
to consider in a transfer application from Supreme Court to Provincial Court:
1.
Lateness in making the application;
2.
An agreement between counsel that the defendant intended that the trial to be by a
jury;
3.
Non-compliance with existing orders of the Supreme Court, such as orders for
production of documents;
4.
Outstanding requests from examinations for discovery; and
5.
Failure to respond to interrogatories.
III. Practical/Strategic Considerations in Choosing the Court
If you have determined that both Small Claims Court and Supreme Court are available to hear the
action, the next step is to consider some practical and strategic issues that will help you with making a
choice. It is beyond the scope of this paper to discuss and consider all of these issues, so I have
prepared another summary chart on the next page that compares some of the more common and
pertinent issues when deciding between Small Claims and Supreme Court.
I have also included a column on this chart for fast track litigation pursuant to Supreme Court Civil
Rule 15-1, which is allowed in four scenarios:
1.
Claims for money, real property (land and buildings) or personal property and the
total amount claimed, not including interest and costs, is $100,000 or less; or
2.
The trial can be completed in 3 days or less; or
3.
All parties consent; or
4.
The court orders the case into Fast Track litigation.
Note that if the basis of your eligibility for fast track litigation is that your claim is for $100,000 or less,
the court may nevertheless ultimately award the successful party an amount greater than $100,000.
6.1.8
The general purpose of fast track litigation is to make the cost of litigation proportional to the value of
the amount in dispute and the complexity of the case. Fast track litigation streamlines actions by:
1.
Requiring a case planning conference (under Part 5 of the Supreme Court Civil Rules)
to set out a general plan and timeline for the litigation before a party is allowed to
bring any interlocutory applications with to the court (with some exceptions);
2.
Limiting examinations for discovery to 2 hours;
3.
Not allowing juries;
4.
Providing a quick trial date; and
5.
Limiting costs awarded to the successful party.
Fast track proceedings are not available in:
1.
Matters started by petition;
2.
Family law cases; or
3.
Class action lawsuits.
6.1.9
6.1.10
6.1.11
IV. Impact of the Supreme Court Civil Rules on Small Claims Proceedings
Pursuant to Small Claims Rule 17(18), there are only a few Supreme Court Rules that have direct
application to proceedings under the Small Claims Act:
Supreme Court Rules
(18) Only the following Supreme Court Civil Rules apply to proceedings under the
Small Claims Act:
(a) Rule 10-1 [Detention, Preservation and Recovery of Property];
(b) Rule 10-3 [Interpleader];
(c) Rule 13-2 (4) (only as to writs of delivery) and (7) [Enforcement of
Orders];
(d) Rule 20-2 [Persons Under Disability], except Rule 20-2 (4);
(e) Rule 20-2 (4) (only as to personal injury cases).
But aside from these very specific instances, can the Supreme Court Civil Rules have any impact on
small claims proceedings? The answer is simply, “it depends.”
A.
Arguments in Favour of Using Supreme Court Rules in Small Claims Proceedings
While the Small Claims Court is not bound by the Supreme Court Civil Rules, there are many case
authorities where the Provincial Court judge, in interpreting a Small Claims rule, has been influenced
or persuaded by an analogous Supreme Court rule and the guiding principles/case law behind that
particular rule. In my view, the general rule of thumb is, if a Small Claims rule is similar in language,
scope and/or function to a particular Supreme Court rule, a Provincial Court judge will probably be
influenced by the applicable Supreme Court or appellate court decisions.
This principle was recently considered in the Provincial Court case of Szczurowski v. Van Strien, 2009
BCPC 405, where the defendant brought a motion to have the action dismissed against him on the
basis that he was not a proper party to the action and in any event, the claim was without reasonable
grounds and disclosed no triable issue. Both parties were required to file affidavits for the motion.
The Court found that the affidavits set out conflicting facts. The Court then turned to Inspiration
Management Ltd. v. McDermid St. Lawrence Ltd., [1989] B.C.J. No. 1003 (C.A.), and other leadings
cases involving the Supreme Court summary trial rule to determine whether it was appropriate to
dismiss the small claims action on the affidavit evidence presented.
The Court stated the following at paras. 70-71:
70 In my view, it would be wrong without some specific rule being enacted as part
of this court’s Small Claims Rules similar in language to an existing Supreme Court
of British Columbia Rule, for a judge in this court to place too much reliance on the
ratio of a Supreme Court of British Columbia or even Court of Appeal decision
interpreting a given Supreme Court Rule when dealing with an application before
this court. This is especially so where the rule in question is not incorporated by
reference into our rules as is so with some Supreme Court Rules.
71 Nonetheless, we are not prohibited I think from taking note of existing common
sense principles that exist sometimes in analogous situations where Supreme Court Rules
are being construed. [emphasis added]
The Court applied the Supreme Court summary trial case law and ultimately found that it had the
jurisdiction under Small Claims Rules 7(14) and 16(6) to dismiss an inappropriate claim prior to trial
and it did so.
6.1.12
It is also important to note that most of the Supreme Court Rules that are used to assist a Supreme
Court litigant in finding out about the case he/she has to meet (e.g., document disclosure rules, etc.)
are generally also available under Small Claims Rules 7(14) (the Settlement Conference “shopping list”)
and Rule 16(6) for applications to a judge (the major exception to this is the Supreme Court 7-2
examination for discovery rule, which is not available in Small Claims).
And even if an order sought at a Settlement Conference or an application to a judge is not expressly
mentioned in Small Claims Rules 7(14) or 16(6), respectively, remember that the order may still be
available under the authority of sub-Rules 7(14)(l) and 16(6)(o), which, combined with s. 2 of the Small
Claims Act, permit a judge to make any order the judge thinks necessary to achieve the purpose of the
Act and the Rules, which is to have claims concluded in a “just, speedy, inexpensive and simple manner.”
For more examples, see the following cases:
•
Boucher v. Value Village Stores Inc., 2010 BCPC 112, where the Provincial Court, in allowing a
Notice of Claim to be renewed, was persuaded by case law regarding the renewal of a
Writ/Third Party Claim.
•
Simon v. Burnaby (City), 2009 BCPC 105, where the Provincial Court looked to Supreme Court
authorities when considering an application by the defendant for leave to file a third party claim.
•
Gradley v. Doig, Bailey, McLean, Greenbank & Murdoch, 2000 BCPC 25, where the Provincial
Court held that Rule 16(6)(o) and s. 2 of the Small Claims Act combine to provide authority for
an order dismissing a claim for want of prosecution (even though there is no specific provision in
the Small Claims Rules for such an order).
The notion that a Provincial Court judge can exercise such a wide discretion is consistent with the
earlier-mentioned McBride case, where the Provincial Court maintained that while it was a court of
statutory jurisdiction, it also possessed a limited inherent jurisdiction that is “‘complimentary’ to the
Rules of the court” and which, “[i]n the absence of a contrary binding authority … exists as an
essential corollary to the establishment of the court and the substantive jurisdiction which it is
charged to administer.”
The Court went on to say this at paras. 31-33, 35-36, and 38:
31 … l am comforted by the authorities in determining that this Provincial Court
possesses an inherent jurisdiction.
32 But even without that “comfort,” in the absence of a contrary binding authority
would insist such jurisdiction exists as an essential corollary to the establishment of
the court and the substantive jurisdiction which it is charged to administer.
33 I mentioned earlier that fully 50 percent of the civil disputes filed in this province
are filed in this court; … In my view the “Small Claims” name is unfortunate in that
it diminishes the significance of these claims for the litigants; as a judge in this court I
know that for a great many if not most litigants the amount and the principles
involved are not “small” from their perspective. Are we then to tell them that their
claim or defence is not deserving of the same procedural integrity as that which exists in
the Supreme Court? By that I don’t mean the formal procedures of discovery and so on,
but rather the action demanded of the court in response to diverse and often unforeseeable
circumstances if justice is to be done, and is to be seen to be done. Are we to tell them that
the Supreme Court judge has been given a greater procedural arsenal to ensure that justice
is done for the “big” claims? The proposition is repugnant, and I cannot believe it was the
intent of the Legislature when creating this court.
…
6.1.13
35 This issue of inherent jurisdiction is not about expanding the jurisdiction of the
Provincial Court; it is rather about ensuring that the substantive jurisdiction with
which this court has been entrusted is discharged in a manner which is “just” in the
fullest sense of that rich word.
36 It is to be recalled that the Small Claims Act stipulates at the outset that the
purpose of the Act is to allow people who bring claims to the Provincial Court to
have them resolved in a particular manner: speedy, inexpensive and simple, but first
and foremost “just.”
...
38 In my view it is unrealistic, and inconsistent with experience, to expect that the Rules
will address every contingency that can and will arise in the course of litigation. When a
“gap” is encountered are we to stand idly by and see injustice perpetrated or the
administration of justice brought into disrepute? Should we advise the party whose
interests are affected unfairly to withdraw and commence a new proceeding in the
Supreme Court? Or is it more reasonable to think a judge will cautiously and
conservatively carve out such supplementary processes as may be necessary to ensure that
justice is done? [emphasis added]
B.
Arguments Against Using Supreme Court Rules in Small Claims Proceedings
The McBride case is a powerful one indeed. At the same time, however, it is trite to say that the Small
Claims Court is not designed with the same procedural density as the Supreme Court. This is perhaps,
most evident when you consider that the purposes of the Small Claims Court and Supreme Court are
different: as stated above, s. 2(1) of the Small Claims Act states that: “[t]he purpose of this Act and the
rules is to allow people who bring claims to the Provincial Court to have them resolved and to have
enforcement proceedings concluded in a just, speedy, inexpensive and simple manner.”
Contrast this with Supreme Court Civil Rule 1-3(1):
The object of these Supreme Court Civil Rules is to secure the just, speedy and
inexpensive determination of every proceeding on its merits.
Notice that the word “simple” is present in the Small Claims Act but missing in the Supreme Court
Rules. This is precisely the reason why the Provincial Court has often emphasized that the seemingly
wide range of interlocutory tools available under the Small Claims Rules is not an invitation to import
the complexities of the Supreme Court into the Provincial Court. Rather, they are only to be used
and applied where they would contribute to the goals of justice, speed, saving of expense, and simplicity.
This point was driven home by the Provincial Court in Lovrich v. Insurance Corp. of British Columbia,
[1993] B.C.J. No. 2003 (Prov. Ct.) (QL), where the Court, when deciding whether to apply the
Supreme Court pre-trial disclosure rules to its small claims proceedings, stated the following at
paras. 22-25:
22 The scheme of the Small Claims Act and Rules is to provide for the resolution of
disputes in a just, speedy, inexpensive and simple manner. It is anticipated that
litigants can have disputes resolved without lawyers. The Act specifically provides
that litigants cannot recover lawyers fees as costs. The ordinary rules of evidence do
not apply. The Rules give the Judge broad powers to achieve the objective including
the power to determine the procedure to be followed at the trial. It is not an
adversary system in the classic sense.
23 This can be contrasted to the Supreme Court Rules. While the stated object of the Small
Claims Act and Rules (Section 2(1) of the Act supra.) is concerned with resolving disputes
in “a simple manner” the stated objective of the Supreme Court Rules (Rule 1(5) supra.)
does not include the words “simple manner.” The Supreme Court Rules provide detailed
disclosure methods such as the deliver [sic] of documents, admissions, examinations for
6.1.14
discovery and pre-trial examination of witnesses. These are not simple procedures and they
anticipate the involvement of lawyers. Unsuccessful litigants can be required to pay the
legal costs of the other party.
24 The Pre-Trial Conference in Supreme Court has a different purpose from the
Settlement Conference in Provincial Court. The Supreme Court Rule governing the
Pretrial Conference does not give the presiding judge broad powers to mediate and
try to settle disputes as do the Small Claims Rules. The primary purpose of the Supreme
Court Rule is to organize the case for trial.
25 Because of these differences, a direct comparison between the two sets of Rules is not
helpful. The fact that the Supreme Court Rules contain a specific rule that applies in these
circumstances and the Small Claims Rules are not is not therefore determinative.
[emphasis added]
To take things one step further, in Barroetavena v. Dr. Ernst J. Schmidt Inc., [1994] B.C.J. No. 1593
(Prov. Ct.) (QL), the Court was also of the view that it should discourage interlocutory proceedings
other than the Settlement Conference in the Small Claims context. Stansfield Prov. Ct. J. stated at
paras. 12-14:
12 Without knowing and therefore without reference to whether the claimant’s
claim is meritorious, I expressed the view in very strong terms that the principle of
“access to justice” which is central to the objectives and practice of this Court
demands that no person should be compelled to abandon a bona fide claim because
of difficulty in attending to procedural requirements. In that regard I had in mind the
decision of the Honourable the Chief Justice of the Supreme Court in Artisan Floor
Co. v. Lam (1993), 76 B.C.L.R. (2d) 384 in which he said …
... the decision finally taken by government was to increase the
monetary jurisdiction in the Small Claims Court to $10,000.
Nothing in the legislation or its history would indicate that, in so
doing, the legislature intended to bring about more complex
procedures “which would clutter the system” and cause the Small
Claims Court to cease to be “a forum where people could feel
comfortable acting on their own behalf.” The language of s. 2(1) and
the provision for settlement conferences in every case indicates an
intention to retain a simple procedure which would avoid the
difficulties encountered after earlier increases in monetary jurisdiction.
13 I take from his Lordship’s comments, and from my own experience as a Judge in
this Court, that it is imperative that in exercising the increased jurisdiction and in
applying the Small Claims Rules that judges of this Court must take all reasonable steps
to ensure that the court remains “a forum where people (can) feel comfortable acting on
their own behalf.”
14 I pause to say that this does not mean lawyers are not welcome in the Court. To
the contrary, I welcome competent counsel (as I expect do all judges of this Court)
and their ability to distil the relevant issues, and to offer insight as to the relevant
principles of law⎯both are of enormous assistance. But so long as we are committed to
ensuring this Court is a forum in which persons comfortably can represent themselves, the
task of a judge of this Court continuously is to seek out an appropriate balance between
strict adherence to the Rules, and flexible accommodations for those who are not schooled
in the law. [emphasis added]
And lastly, in Szczurowski at para. 73:
73 Counsel before me cited five Supreme Court judgments being in date order as
follows … None of these cases are binding upon me because they relate for the most
part to rules which do not exist in this court. As well, the philosophical and juridical
underpinnings of this court referred to in s. 2 of the Act are quite different than in the
6.1.15
higher court. Claims here are to be resolved in a just, speedy, inexpensive and simple
manner. [emphasis added]
Ultimately, like with so many things in life, the key is simply balance. While the Provincial Court
may be influenced by Supreme Court or appellate authorities, remember that this will certainly not be
the case if there is a conflict with the goals enunciated in the Small Claims Act, and remember that
generally, the Court has shown in the past that they will be hesitant to grant interlocutory relief
outside the Settlement Conference to begin with.