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.

What is intentional infliction of mental suffering in B.C.?

Written by: Danna Shan (law student) and Alfonso Chen

In certain situations, people conduct themselves outrageously to others and cause the latter to suffer mentally. For example, Wilson may intentionally play the violin loudly every night at 11:00 p.m. for over a year with the windows open because he dislikes his neighbour, Jim, and hope that Jim would suffer from anxiety due to his conduct. Jim may actually then suffer from anxiety and want to make a claim against Wilson. In such circumstances, Jim may consider claiming for damages for intentional infliction of mental suffering, which is a tort available in B.C. This article provides an overview of this tort in B.C. and general comments of the tort.

As a preliminary matter, intentional infliction of mental suffering is not easy to establish in court. Before you act on anything in this article, you must obtain legal advice from your lawyer.

To establish the tort of intentional infliction of mental suffering, the claiming party must establish that the other party engaged in outrageous/flagrant conduct, had an intent to cause some harm of the kind produced, and caused actual harm. First, outrageous conduct may be established in certain cases where a person employs false statements and inaccurate information about another that are flagrant and extreme. Some conduct that are perceived as unfair might not constitute outrageous or flagrant conduct. For example, if Wilson borrows $100,000 from his other neighbour Jeff and promises to pay back the $100,000 after a month and instead pays back the $100,000 after two months, Jeff might not be able to make a viable claim for intentional infliction of mental suffering on the basis of the late payment because the conduct itself is generally not outrageous. Next, the intent element may be established considering the evidence available, even if the person who engaged in the allegedly outrageous conduct testifies of not having intended any harm to be caused to the claiming party. Finally, the actual harm of the mental suffering should be backed by medical evidence and be a visible and provable illness. Mere testimony that one feels depressed or feels anxious alone is inadequate. Further, the mental suffering should not be mere stress or annoyance– the claimed mental suffering should be a recognizable psychiatric illness, such as depression and anxiety. Sometimes, it would be a prudent step to call an expert witness to assist you in establishing this element.

Many people may feel that others have treated them in a way that has caused them to suffer mentally and wish to litigate as a result. However, before commencing the lawsuit, one should consider the risks and benefits of litigation as well as alternatives, such as making other claims instead or attempting to negotiate a settlement. In certain cases, you may have to pay for part of the other party’s legal fees if you have no chance of winning the claim in the first place.

Many of our lawyers handle litigation files on a daily basis and can assist you in identifying your case’s strengths, weaknesses, and available options. If you would like to meet for an initial consultation, please feel free to contact our number at 604-558-2258, and we would be honored to help you.

Danna Shan holds a Master of Law degree from the University of Cambridge and is expected to become Henderson & Lee’s articled student by early 2020 and a lawyer by early 2021.

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