The focus of the news story seemed to be the inadequacy of Property Condition Disclosure Statements in protecting purchasers. That may be an important issue, but I saw an issue more important to me, which is about access to justice.
The purchasers seemed to think that they had a “slam-dunk” case against the folks who sold the house and the real estate agents involved, all of whom they believed were aware of and failed to disclose the problems with the home.
They expressed frustration, though, with estimates they had gotten from lawyers that it would cost $10-$20,000 to prosecute the matter in court. When compared to a potentially $50,000 case, a $10-$20,000 legal expense to achieve justice seems disproportionate.
One “fix” would be for lawyers to stop charging so darned much. Of course, that’s not going to happen.
The other “fix” is to eliminate lawyers altogether.
That’s exactly what Small Claims Court is all about. British Columbia’s Small Claims system is specifically designed to give access to justice without the need for a lawyer.
Every system of justice has its limitations, but I am impressed as all heck with our Small Claims system.
Commencing a Small Claims lawsuit is as easy as filling in the blanks of a one-page form. The blanks have such complicated headings as “What Happened” and “How Much”.
There are easy to understand pamphlets explaining straightforward and accessible procedures.
There are two hearings. The first is an opportunity to resolve the legal dispute at mini-mediation presided over by a Provincial Court Judge. If a settlement is not reached, the next and final hearing is the trial.
The trial can be as simple as stepping into the witness box and telling your story, armed with whatever documentation might be relevant to your claim.
If one of the parties chooses to hire a lawyer, the judge is likely to even the playing field by helping the unrepresented party along to the extent possible.
Not only do you avoid the horrendous expense of legal fees to prosecute your case, you also avoid the risk of paying the opposing parties legal fees if you are unsuccessful because legal fees are not claimable in Small Claims lawsuits.
Unfortunately, the dissatisfied purchasers in the CBC news story cannot currently prosecute their $50,000 case in Small Claims.
In 2005, the maximum dollar award in Small Claims was increased from $10,000-$25,000. That increase reflected the reality that it made no sense to pay a lawyer to prosecute a claim up to $25,000.
At the time, it was contemplated that the upper limit ought to be increased to $50,000. I think the time has come to do just that, so that those like the dissatisfied home purchasers can have affordable access to justice.
While I’m at it, I should mention another unfortunate limitation to Small Claims.
Our current legislation requires builders liens to be enforced in Supreme Court. The legislation needs to change to allow those liens to be prosecuted in Small Claims. As it stands, a construction contractor has to hire a lawyer to enforce a builders lien in Supreme Court even if the claim is as low as two or three thousand dollars.
And to tie this into the subject matter of my column, personal injury claims can be pursued in Small Claims as well. If there is enough interest, I would be happy to offer free seminars to teach injured victims how to best prosecute a case without a lawyer in Small Claims.
Tell that to the insurance adjuster who low-balls you.
Contact your local MLA and ask that he or she support these and other initiatives that will increase access to justice in this province.
Published November 10, 2011 in the Kelowna Capital News