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.