Here’s what your lawyer will recommend if you’re involved in a civil dispute.

Written by: Vicki Xu (Articled Student) and Alfonso Chen

This article introduces a few potential options that a B.C. lawyer you consult with may set out for you with regards to resolving a civil dispute. Due to the necessity of having the circumstances of each particular case canvassed by a lawyer in order to define the appropriate issues, laws, and options, and due to there being changes in the law over time, you must not rely on the contents of this article unless your lawyer has approved its applicability and determined that the law is still current. This article is unable to replace legal advice regarding your particular case. The value in reviewing this article is that you may find options that you have not considered before, which you may consider before meeting with the lawyer you consult with and raise with the lawyer.

Availability and Suitability of Options

The options available or suitable to you depend on the facts of each case. Some options are available or suitable only for particular matters. For example, the Small Claims Court, which is part of the Provincial Court of British Columbia, does not deal with the following matters:

  1. certain tenancy matters;
  2. defamation actions;
  • malicious prosecution;
  1. cases involving title to land;
  2. enforcing foreign judgments;
  3. claims on a deceased’s estate;
  • recovery of personal property under the Personal Property Security Act;
  • certain strata property claims;
  1. most builders’ liens issues;
  2. many employment issues;
  3. bankruptcy issues;
  • trademark claims; and
  • cases seeking an injunction.

Source: https://www.supremecourtbc.ca/sites/default/files/web/Choosing-Small-Claims-or-Fast-Track-Litigation.pdf

For example, if you wish to seek legal remedy after someone passes absolutely false information to your employer stating that you drink so much alcohol that your inebriated state prevents you from working competently, then the court that you should consider commencing legal action in is the Supreme Court. This is because defamation, thetort involved in this case, cannot be brought in the Small Claims Court (see ii above). On the other hand, a $30,000 claim for breach of a contract is one that, in many cases, should be brought in the Small Claims Court.

Options

Below is a non-exhaustive list of options that may be available to you when faced with a civil dispute:

1) do nothing;

2) wait and see;

3) litigate in the small claims court;

4) litigate in the supreme court;

5) report to the appropriate regulatory authority;

6) report to the police;

7) negotiate;

8) mediate; and/or

9) see a lawyer licensed in the appropriate jurisdiction.

You may proceed with several options simultaneously or in succession or both. For example, you may wish to begin litigation in the Small Claims Court because the limitation period would soon expire. Simultaneously, you may wish to negotiate with the opposing party, who is the party you have the legal dispute with, to attempt to resolve the dispute outside of court by reaching a settlement, despite having started litigation.

Option 1: Do Nothing

Doing nothing means that you take no further action with regards to the dispute, regardless of what happens. Rarely is this beneficial. There are many significant potential drawbacks, which vary based on the circumstances of the involved case.

Option 2: Wait and See

Waiting and seeing means that you take no action with regards to the dispute until something happens, at which point you could reassess your legal position based on the new circumstances and act accordingly.

Option 3: Litigate in the Small Claims Court

Litigating in the Small Claims Court means that you sue in the Small Claims Court. The maximum amount you can claim is the amount set by the regulations, which is $35,000 as of August of 2020. You may waive additional amounts above $35,000 to sue in the Small Claims Court. For example, if you are suing because a person owes you $36,000 and did not pay you back in accordance with your agreement with that person, then, if your lawyer determines that litigating in the Small Claims Court is suitable, you may waive the $1,000 to sue for $35,000 in the Small Claims Court. You would lose the right to sue for that incremental $1,000 that you have waived. Please note that certain matters cannot be brought in the Small Claims Court (see above).

The benefit of litigating in the Small Claims Court is that it is generally cheaper and faster than litigating in the Supreme Court. If you plan to represent yourself for the case, meaning that you do not retain the lawyer you consult with or any other lawyer to represent you for the case, then you may prefer to litigate in the Small Claims Court because of its relative ease for self-represented litigants to navigate in.

Option 4: Litigate in the Supreme Court

Litigating in the Supreme Court means that you sue in the Supreme Court. You can sue for any amount in the Supreme Court. There are also certain matters which you cannot bring in the Supreme Court.

The benefit of litigating in the Supreme Court is that you can obtain more evidence from the opposing party at an early stage of the litigation than litigating in the Small Claims Court. If you succeed, then you might also obtain an order for the opposing party to pay for your costs, which are part of your lawyer’s fees and disbursements.

Option 5: Report to the Appropriate Regulatory Authority

You may choose to report to the appropriate regulatory authority by issuing a complaint to that authority. For example, you may file a complaint for professional misconduct of a real estate agent with the Real Estate Council of British Columbia. A possible benefit of reporting is that your concern about the opposing party’s professional conduct may be remedied by the regulatory authority taking steps to prevent the misconduct from reoccurring.

Option 6: Report to the Police

For certain potential criminal matters, it may be suitable to report the matter to the police at a local police station or over the phone in cases of emergency.

 Option 7: Negotiate

Negotiating means communicating with the other party of the dispute to attempt to resolve the dispute outside of formal litigation proceedings. You can negotiate yourself or have someone else negotiate on your behalf. Often, if the other party has retained a lawyer or if the matter is too complex for an individual to handle, the individual would prefer to retain a lawyer to negotiate on their behalf. The benefit of negotiating is that, if it is successful, it is often cheaper and faster than resolving by litigation. The drawback is that the other party may refuse to negotiate.

Option 8: Mediate

Mediating means negotiating in a session facilitated by a mediator who would assist in guiding the negotiations but is unable to require the negotiating parties to agree on a particular settlement. Some people choose to mediate when they have a legal dispute with a party that they care about or that they hope to maintain a good relationship with. The benefit of mediating is that it is often faster and cheaper than litigating. The drawback is that mediating may cost more than negotiating while possibly leading to a similar result to that achieved by negotiating.

Option 9: See a Lawyer Licensed in the Appropriate Jurisdiction

Lawyers in British Columbia may not be able to assist you for certain legal disputes and may refer you to a lawyer licensed to practice law in another province or country.

 Conclusion

In conclusion, you should discuss in detail various options, including those raised and possibly those not raised in this article, with the lawyer that you consult with. You should also discuss the potential to proceed with two or more options. Each case is different. Therefore, there is no ‘one-size-fits-all’ option or set of options. Some options require a lot more time and energy to follow through such that people who are more easily stressed with legal disputes may give greater weight to the costs of those options.

Our firm has several civil litigators who are able to assist you in legal disputes. If you are about to meet with one of our lawyers, we warmly welcome you to our offices and look forward to working with you.

Vicki Xu is an articled student of Henderson & Lee and is expected to become a lawyer in 2021.

Alfonso Chen is a litigation associate of Henderson & Lee. His practice mainly involves civil litigation and criminal defence matters.

Suing someone? The amount you seek may determine which court, if any, can resolve your civil case in B.C. Here are the basics.

Written by: Alfonso Chen

Introduction

In B.C., there are several bodies that render decisions for legal disputes. If you commence proceedings through a body that does not have jurisdiction over the issue, then you may waste your time and resources. It is crucial to know which body can make an order to resolve your legal dispute. This article explains the fundamental monetary jurisdiction issue to determine whether to commence legal proceedings in B.C. for civil cases in the B.C. Supreme Court, the Small Claims Court of the B.C. Provincial Court, or the Civil Resolution Tribunal (the “CRT”) – there are many exceptions to the contents in this article which are not discussed here and there may be reasons for you not to commence legal proceedings which are also not discussed– you must discuss the contents of this article with a lawyer before relying on any part of this article to determine whether they apply to your particular case. This article is current as of June 4, 2020. All monetary values in this article are expressed in Canadian dollars.

The Courts and the CRT

If your claim is of a value up to $5,000:

Generally, for civil claims up to $5,000, you apply to have the matter resolved through the CRT. You can begin to do so by submitting the truthfully completed Dispute Application Form and fee payment to the CRT. You can obtain a copy of the Dispute Application Form on CRT’s website, which is https://civilresolutionbc.ca/. There may be additional documents or pieces of information that you would need to provide to begin the process. There are also ways to have the matter transferred to the Small Claims Court after a file has been opened with the CRT for your dispute. The CRT has a more informal process than that in the Small Claims Court and the B.C. Supreme Court and makes it possible to have certain disputes resolved without having a formal in-person hearing. A decision might be rendered solely based on the documents sent to the CRT. However, there are restrictions on what lawyers may do for clients involved in CRT cases that do not exist in the Small Claims Court and the B.C. Supreme Court.

If your claim is of a value between $5,000.01 and $35,000:

Generally, for civil claims between $5,000.01 and $35,000, you can have the matter resolved through the Small Claims Court. You can begin to do so by submitting the truthfully completed Notice of Claim and fee payment to the registry of the court “nearest to where (a) the defendant lives or carries on business, or (b) the transaction or event that resulted in the claim took place” as set out in subrule 1(2) of the Small Claims Rules. You can obtain a copy of the Notice of Claim on the Small Claims Court’s website, which is http://www.smallclaimsbc.ca/court-forms. The Small Claims Court is a division of the B.C. Provincial Court and may be easier to navigate through than the B.C. Supreme Court.

Generally, as an alternative, you can also choose to claim in the B.C. Supreme Court.

If your claim is of a value above $35,000:

Generally, for civil claims where you claim above $35,000, you can only have the matter resolved through the B.C. Supreme Court. You can generally begin to do so by submitting the truthfully completed Notice of Civil Claim and fee payment to any registry of the Supreme Court. You can obtain a copy of the Notice of Civil Claim on the B.C. Supreme Court’s website, which is https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-civil-forms. Some matters are commenced by filing a Petition or a Requisition and associated documents instead. The B.C. Supreme Court has a more formal process than the processes in the Small Claims Court and the CRT. Many litigants choose to retain lawyers for Supreme Court matters due to the complexities in navigating the system.

There are many exceptions:

There are many unmentioned exceptions to the general statements noted above. As such, it is crucial that you see a lawyer to discuss your particular case prior to relying on the contents of this article.

Conclusion

The jurisdictions of the courts and the CRT are important to keep in mind when considering commencing a lawsuit. You should avoid wasting time and resources taking steps that do not produce results. Many of our lawyers frequently handle civil dispute files and would be happy to assist you on your case. We warmly welcome you to call our number at (604) 558-2258 to schedule an initial consultation!

Alfonso Chen is a litigation associate of Henderson & Lee. His practice mainly involves civil litigation and criminal defence matters.

BC Tenants and Landlords: Negotiations during the COVID-19 pandemic

Written by: Alfonso Chen

Introduction

Tenants of residential tenancies generally want a place to stay that is suitable and remains suitable as a residence. Landlords of residential tenancies generally want tenants to pay rent on time and properly maintain their rental units. Often, when tenants and landlords have disputes about whether their rights under the Residential Tenancy Act or associated case law or regulations have been infringed upon, they can rely on the Residential Tenancy Branch (the “Branch”) to assist them in resolving their disputes. Some landlords may seek an order of possession from the Branch. However, due to the COVID-19 pandemic, there has been a temporary halt on many evictions in BC. The provincial government has a $500 supplement available for certain tenants in need of that to pay part of their rent. However, this might not be enough for the full amount of rent. Disputes will undoubtedly arise through the next few months between tenants and landlords over their rights and responsibilities. This article seeks to assist landlords and tenants in resolving their dispute privately during this time of uncertainty.

To note, there are certain tenancies that do not fall under the Residential Tenancy Act which are not discussed in this article. There are also many methods to resolve residential tenancy disputes– this article only raises a few issues and is not exhaustive. Some disputes may also be unsuitable for private negotiations. Due to these reasons, you must seek advice from a lawyer regarding your particular case before relying on any of the contents of this article.

Initiating the Negotiation Process

It is crucial that you act in good faith and with a sense of appreciation of the troubles COVID-19 may cause on the other party.

As a landlord, you must recognize that many tenants may simply be unable to pay rent and may be unable to fix parts of the premises that they damaged due to circumstances beyond their control. It may be futile to send a strongly-worded letter to the tenant demanding the tenant to pay the rent in full and on time or demanding the tenant to have something fixed right away.

As a tenant, you must recognize that landlords may rely on rent to buy groceries and possibly for their entire disposable income and may be unable to fix parts of the property, such as appliances, promptly. If you have the means to pay rent in full and on time, then you should do so – after all, there is an agreement between you and your landlord.

You may wish to begin negotiating by advising the other party of your awareness of how COVID-19 has impacted the other party. You can express your concern without blaming the other party as well as set out proposals for how to resolve the issue, including reasonable timelines. Recall that people are particularly stressed at this time and adjusting to working from home. They may be unable or unprepared to reply promptly. Unless your matter is urgent, a text message or email can work to express your understanding of their circumstances and of the potential delay in receiving responses. After a day or two, you can give the other party a call to follow up. In all, you should begin with a positive attitude and with a desire and commitment to resolve matters privately and amicably.

Negotiating

Upon both parties communicating with one another to begin negotiating, you can assess whether it is possible for you to resolve the matters among yourselves or if you require a third party to help facilitate the negotiations. If there is a mutual friend or acquaintance who can objectively assess the situation and provide a fair and enforceable proposal to resolve the dispute, then you can ask that mutual friend to step in and assist during the negotiations. You may also wish to list what aspects of the tenancy are most important to you and ask the other party to do the same. With the lists, you can try to find ways to mutually accommodate the other’s interests. It is probable that you would have to both give and take during negotiations. As such, you may wish to also proactively list what you can do to benefit the other party. Upon reaching an agreement to resolve the dispute, the landlord and the tenant should write down and sign a written agreement, of course while following best practices on minimizing the spread of COVID-19. To note, certain agreements are unenforceable. You should each have a lawyer independently review your proposal prior to reaching the settlement and have the lawyer assess the enforceability of your agreement.

Conclusion

Residential tenancy disputes frequently arise and are sometimes difficult to resolve. However, you may increase your chances of successfully settling matters privately by: a) approaching the negotiation with a positive and understanding attitude, b) being prepared for the negotiations, c) reasonably accommodating the other party’s interests while pursuing protection of your own, d) taking steps to ensure that the agreement is enforceable and d) creating a written record of the agreement.

Henderson & Lee has many lawyers who handle residential tenancy matters and has recently implemented a fully remote initial consultation system to allow us to continue supporting those facing legal challenges in BC so that new clients do not need to leave home just to visit our offices. If you require assistance with your residential tenancy dispute or any other legal dispute, please feel free to call (604) 558-2258 to schedule an initial consultation. We warmly welcome the opportunity to serve you. In any event, we wish you the best in resolving disputes with your landlord or tenant.

Alfonso Chen is a litigation associate of Henderson & Lee. His practice mainly involves civil litigation and criminal defence matters.