ARTICLES
Starting a Lawsuit in British Columbia
In order to start a lawsuit here in British Columbia we require the following:
The Background Facts
We need to gather all of the available facts from the client and also review all of the client’s relevant documents (contracts, work orders, invoices, credit applications, account statements, etc.). Preferably you will provide us with a written chronology of the facts.
The Proper Legal Names of the
We will need the defendant’s proper legal names and addresses. If the defendant(s) is a company, it will be necessary to conduct corporate searches to determine the defendant’s proper legal name.
Information about the Defendant’s assets
Any information you have about the defendant’s assets should also be provided. This information could include:
• do they own real estate
• where do they bank (do you have a copy of a cancelled cheque)
• where do they work
• if they are a business, who are their customers
We can do searches in the Land Title Office to find out if the defendant owns any real estate as well as in the Personal Property Registry to see if they have any personal property (ie. a car) which could be seized.
This information can held you decide whether it is worthwhile to pursue the matter. It can also help us to decide whether or not it would be worthwhile to take steps before judgment to try and secure payment such as a garnishing order.
A Retainer
We will require a retainer from the client before we file a lawsuit. In most cases, the out of pocket costs to start a lawsuit (filing fees, search fees, service fees, etc.) will be in the range of $300 to $500.
The amount of retainer we require will vary depending on the size and complexity of the matter. We will discuss the amount of retainer with you before we are retained.
Basic Steps in a Lawsuit in British Columbia
All civil actions in British Columbia are heard by The Supreme Court of British Columbia. Matters involving claims of $25,000 or less are heard in Small Claims Court (a division of the Provincial Court of British Columbia).
The basic steps in a lawsuit are :
1. Gathering the Facts
Before starting a lawsuit it is necessary to gather all of the available facts from the client and also review all of the client’s relevant documents. It is preferable, where possible, for the client to provide their lawyer with a written chronology of the facts. If the
defendant(s) is a company, it will be necessary to conduct corporate searches to determine the defendant’s proper legal name.
2. Filing the Lawsuit
The action is started by filing a Writ of Summons and a Statement of Claim at the court registry. For all actions filed in the Supreme Court there is a filing fee of $208.00.
3. Serving the Defendant
Once the action is served, the Plaintiff has one year to serve the Defendant(s) (this time period can be extended if the Plaintiff has difficulty in serving the Defendant(s)). A defendant who is an individual must be served personally. Corporate defendants can be served at their registered office (often their lawyer’s office) or by personally serving a director or officer of the defendant.
Once the defendant is served they have 7 days from the date of service to file a document called an Appearance. If the defendant does not reside in BC then they have a longer time to file an Appearance (21 days in the case of a person residing anywhere within Canada other than BC, 28 days in the case of a person residing in the USA and 42 days in the case of a person residing anywhere else).
After the Defendant files an Appearance they must file and serve the Plaintiff with a Statement of Defence within 14 days after the time expires for filing the Appearance.
4. Production of Documents
The Rules of Court in BC provide that each party must produce all of their documents to the other side. The Plaintiff will prepare a List of Documents which lists all documents which are relevant to the lawsuit and then provide this list to the Defendant who must do the same.
5. Examinations for Discovery
Examinations for discovery is a process whereby each party is entitled to ask questions of the other party under oath before a court reporter. The court reporter will prepare a written transcript of the examination which can be used at trial. This process helps each side gather the facts about the case and assess the strengths and weaknesses of their positions.
6. Interim Applications
It is not uncommon in most lawsuits for one party to have to go to court before trial to deal with certain pre-trial issues, such as the production of certain documents or production of a person for discovery.
7. Trial
There are two types of trials: a conventional trial and a summary trial.
A conventional trial, which most people are familiar with, involves calling witnesses who give evidence under oath before a judge. The Plaintiff is responsible for paying the Hearing Room Fees to the Province. Depending on the length of the trial these fees can be significant ($312 each day for the first 5 days, $416 each day for the next 5 days and $624 for each day over 10 days).
A summary trial is done by way of affidavit evidence before a judge in chambers. It is generally quicker and cheaper than a conventional trial. Not all cases are suited for a summary trial, particularly cases which involve issues of credibility. Cases which are suited for summary trial are typically ones where the facts are relatively simple and straight forward (ie a claim on a promissory note) although even complex cases can sometimes be heard by way of a summary trial.
8. Timeframe
The time a lawsuit will take is difficult to predict. It depends on many factors such as the nature and complexity of the case, the availability of both parties' lawyers, court schedules, how many witnesses there are, how many documents are involved and how long the trial will be.
Generally speaking it will take somewhere between one to two years for a case to go to trial. For cases set for one to three days it can sometimes take shorter than this.
9. Fast Track Litigation
For lawsuits where the trial can be completed in 2 days or less, there is a fast track litigation rule whose objective is to provide a speedier and less expensive method of taking a case to trial. Under this rule, the parties must deliver their list of documents by a certain time and examinations for discovery are limited to 2 hours. The rule allows a party to get a trial date within 4 months after the date a party elects to proceed under this rule.
Registering a Foreign Judgment in British Columbia
If a person has recovered judgment in another jurisdiction against a defendant who either resides in BC or has assets in BC, before they can execute against any assets here in BC, it will be necessary to have the foreign judgment registered as a domestic judgment of the Supreme Court of British Columbia.
Is the Judgment from another Canadian Province?
A judgment from another Canadian Province is registered under the Enforcement of Canadian Judgments and Decrees Act and is done in the Supreme Court of British Columbia. The process for registering a judgment from another province involves filing a certified copy of the judgment (in the prescribed manner and form) in the Supreme Court Registry. What is required is a copy of the judgment certified as a true copy by a judge, registrar, clerk or other proper officer of the Court that made the judgment.
The Enforcement of Canadian Judgments and Decrees Act defines "Canadian judgment" as a judgment, decree or order made in a civil proceeding by a court of a province or territory of Canada other than British Columbia that requires a person to pay money.
The effect of registration of the judgment is that the judgment may be enforced as if it were an order or judgment of, and entered in, the Supreme Court of British Columbia.
Is the Judgment from a Reciprocating State?
If the judgment is not from another Canadian Province in, the first step is to determine whether the jurisdiction where the foreign judgment was granted is a reciprocating state with BC. The procedure for registering a foreign judgment from a reciprocating state is somewhat simpler and quicker. A list of reciprocating states is set out below.
Registration pursuant to the Court Order Enforcement Act
The Court Order Enforcement Act makes provisions for registration and enforcement of foreign money judgements granted by reciprocating states. In British Columbia, the Supreme Court of British Columbia is the only Court with the jurisdiction to hear an application for registration of a foreign judgement. Once the judgement is registered, the foreign judgement may be enforced as though it was a domestic judgement of the Supreme Court of British Columbia.
Not all judgments may be registered. Only judgments whereby a sum of money is made payable can be registered. Judgments for the periodic payment of money such as maintenance or alimony are excluded from the definition of judgments that can be registered.
The application is made by way of a petition and supporting affidavit. A certified copy of the original judgment under seal of the foreign court is required. The petition must set out the amount owing. Interest can be claimed as long as it is allowed for in the foreign judgment. If the judgment is expressed in a foreign currency it will be converted into Canadian currency upon registration.
In certain cases the application to register the foreign judgment can be made without notifying the debtor (this is referred to as an ex parte application). An application can only be made without notice if:
(a) the judgment debtor was personally served in the original proceeding or the judgment debtor appeared, defended or otherwise submitted to the jurisdiction of the original court; and
(b) the appeal period has expired or an appeal has been disposed of in the original court.
If both of these factors are met then the application can be made without notice to the judgment debtor. In all other cases, the judgment debtor must be personally served with the application. Applications without notice require a certificate from the original court in the form set out in the Act.
The judgment debtor has limited grounds on which he/she can challenge the registration. These grounds include: not being served properly in the original court, the original court did not have jurisdiction, an appeal is pending and the foreign judgment is against public policy (see section 29(6) of the Act).
Registration pursuant to the Common Law
If the foreign judgment is not from a reciprocating state, then the judgment creditor has to follow a somewhat different procedure. The end result however will be the same.
Suing on a foreign judgment at common law involves commencing a lawsuit by way of a writ of summons and a statement of claim which must be served on the defendant who can then file a statement of defence and defend the action. At common law however, a foreign judgment will be recognized where the foreign court had jurisdiction, in the eyes of our Courts here in BC, over the parties or the subject matter of the suit and if the foreign judgment was final and conclusive and in the case of a judgment in personam, was for a sum certain in money.
The Supreme Court of Canada held in 2003 that our courts here in Canada should give full faith and credit to the judgments of non-Canadian jurisdictions where the foreign court has appropriately exercised jurisdiction.
The defences which may be raised to an action upon a foreign judgment are limited as follows:
1. the original court had no jurisdiction;
2. the defendant in the original action was not duly served and did not appear or submit to the jurisdiction;
3. the judgment was obtained by fraud;
4. the judgment was not a final judgment;
5. the judgment was not for a sum certain in money;
6. the judgment is for a payment of a penalty or money due under the revenue laws of the foreign country;
7. the judgment has been satisfied or for any other reason is not a subsisting judgment.
If a defendant does file a defence, then a plaintiff may bring on application for a summary trial which is done by way of affidavit evidence before a judge in chambers. This is much quicker than waiter for the actual trial.
The major difference with actions which are brought by common law is that the defendant has to be served as opposed to applications pursuant to the Court Order Enforcement Act which in many cases can be made without notice to the defendant.
List of Reciprocating States (as of _______)
Creditor’s Remedies/Collections
Getting paid can be difficult. We offer a full range of services to creditors who are trying to get paid or recover monies which they are owed.
Services Include:
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Sending demand letters to debtors
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Starting a lawsuit (more info)
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The basic steps in a lawsuit in BC (more info)
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Doing searches to see if the debtor has any assets
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Registering a foreign judgment in BC (more info)
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Garnishing orders before and after judgment (more info)
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Injunctions to prevent a debtor from transferring or disposing of property before judgment
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Setting aside fraudulent transfers and preferences by the debtor in order to avoid having to pay the creditor
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Seizing and selling assets which belong to the debtor
Garnishing Orders
What is a garnishing order
A garnishing order is an order a creditor can ask the court to make requiring a third party (referred to as the garnishee) who owes money to the debtor, to pay that money into court to the credit of the creditor’s lawsuit.
For example, say you have a judgment against John Doe for $10,000 and you find out that he has a bank account at the Royal Bank with a balance of $20,000. You can obtain a garnishing order requiring the Royal Bank (the garnishee) to pay $10,000 into court to the credit of your action.
Garnishing orders can be used to attach money in banks, receivables, rent payments and wages owing to a debtor.
Needless to say, they can be extremely useful and effective methods of getting paid when the debtor has money or is owed money and is simply refusing to pay.
Are there different kinds of garnishing orders?
There are two main kinds of garnishing orders.
The first is a garnishing order after judgment. As the name implies, this is used when a creditor has already obtained a judgment. The creditor does not have to give notice to the debtor that a garnishing order is being made. The creditor (or the creditor’s lawyer) must swear an affidavit in support of the garnishing order which states a judgment has been recovered, that it hasn’t been paid and that they believe the garnishee is indebted to the debtor (the proper name and address of the garnishee is required). The garnishing order is then filed along with the affidavit in the court registry and the creditor then arranges to have the garnishing order served on the garnishee. If the garnishee owes any money to the debtor at the time the garnishing is served then the garnishee must pay that money into court. Thus the timing when the garnishing order is served on the garnishee is critical because if there is no money owing at the time when it is served then the garnish order will not attach to any funds.
The act states that:
(2) A judge or a registrar may, on an application made without notice to any person by
(a) a plaintiff in an action, or
(b) a judgment creditor or person entitled to enforce a judgment or order for the payment of money,
on affidavit by himself or herself or his or her solicitor or some other person aware of the facts, stating,
(c) if a judgment has been recovered or an order made,
(i) that it has been recovered or made, and
(ii) the amount unsatisfied, or
(d) if a judgment has not been recovered,
(i) that an action is pending,
(ii) the time of its commencement,
(iii) the nature of the cause of action,
(iv) the actual amount of the debt, claim or demand, and
(v) that it is justly due and owing, after making all just discounts,
and stating in either case
(e) that any other person, hereafter called the garnishee, is indebted or liable to the defendant, judgment debtor or person liable to satisfy the
judgment or order, and is in the jurisdiction of the court, and
(f) with reasonable certainty, the place of residence of the garnishee,
order that all debts due from the garnishee to the defendant, judgment debtor or person liable to satisfy the judgment or order, as the case may be,
is attached to the extent necessary to answer the judgment recovered or to be recovered, or the order made, as the case may be.
(3) A similar order for the attachment of debts due from a garnishee to a defendant may be made by a judge or registrar on application by or on
behalf of a plaintiff who has
(a) filed an affidavit in or to the effect of Form A in Schedule 1, and
(b) issued a writ or a summons, as the case may be, for the amount of his or her claim against the defendant.
(4) An order must not be made under this Part for the attachment of a debt due to an employee for the employee's salary or wages before a
judgment or order for the payment of money has been obtained against the employee in the proceeding.
(5) Except as otherwise provided in this Part, 70% of any wages due by an employer to an employee is exempt from seizure or attachment under a garnishing order issued by a judge or registrar, but the amount of the exemption allowed under this subsection must not be less than
(a) in the case of a person without dependants, $100 per month, or proportionately for a shorter period, and
(b) in the case of a person with one or more dependants, $200 per month, or proportionately for a shorter period.
(6) Subsection (5) (a) does not apply if the debt is contracted for board or lodging and subsection (5) (b) does not apply if
(a) the debt is contracted for board or lodging, and
(b) in the opinion of the judge or registrar, the exemption set out in subsection (5) (b) is not necessary for the support and maintenance of the debtor's dependants.
(7) Despite any other provision of this Part, if the wages of a person are seized or attached under
(a) a court order for alimony or maintenance,
(b) a duly executed separation agreement, or
(c) an order under section 18 (2) of the Family Maintenance Enforcement Act,
the exemption allowed to that person is 50% of any wages due if the wages due do not exceed $600 per month and 33 1/3% for wages in excess of $600 per month but the amount of the exemption allowed under this subsection must not be less than $100 per month, or proportionately for a shorter period.
(8) The definition of "debts, obligations and liabilities" in subsection (1) applies to the use of that expression or the use of any of the words composing it in an order made under this section.
The second type of garnishing order that can be obtained is one obtained prior to judgment. These are only available in limited circumstances