I am a big fan of Small Claims Court.
As an articled student, almost 20 years ago, it was where I “cut my teeth” in the courtroom. The Nanaimo law firm where I articled always had a collection of Small Claims cases on the go. The responsibility for handling those cases was handed over, year after year, from articled student to articled student.
After articling, I moved to the Okanagan where I took on and built a mixed litigation practice. It feels like a lifetime ago before I was able to focus my legal practice to handle only personal injury cases, but I still very much remember the wide assortment of legal matters that came across my desk.
Many legal disputes I was consulted about were not significant enough to justify paying thousands, or tens of thousands, of dollars in legal fees. Often, hoping to keep legal expense to a minimum, I was asked to simply issue a “demand letter”. The hope was that the person on the other side of the dispute would “turn tail and run” on receiving a sternly written letter from a lawyer.
I regularly sent potential clients away, pointing them in the direction of our Small Claim Court system. I explained that the few hundred dollars they would pay me to learn about their case and issue a demand letter would be better spent commencing a Small Claims lawsuit.
There is no legal consequence of ignoring a lawyer’s demand letter. In comparison, ignoring a Small Claims Notice of Claim will result in a Provincial Court judgment that is just as powerful as one issued by the Supreme Court of British Columbia.
Small Claims Court provides a way to access our justice system to solve legal disputes that are not big enough to warrant huge legal bills. When first created, it could handle cases up to $3,000.00. It can now handle cases up to $25,000.00. It has been argued that the limit should be $50,000.00 or more, because even at that level most if not all of your “successful” judgment can be eaten up by legal fees if a lawyer is involved.
There is a downside to Small Claims, though. Bullies can engage the system to pursue unjust claims just like the “little guy” can go after just ones.
When pursued by a bully, a Small Claims lawsuit can feel like a kind of extortion.
With television and movies portraying legal cases as being won and lost not on the basis of the validity of a claim but on the clever tactics of lawyers and the arbitrariness of judges, there can be a lot of pressure to pay off the bully and move on with your life.
This is particularly so during the first formal step of a Small Claims lawsuit: the Settlement Conference. During the one-half hour informal meeting, the role of the judge is to mediate between the two sides, encouraging a settlement. The role is not to sort out who is right and who is wrong. A “bully” in that meeting will not be exposed. With a judge encouraging you to negotiate a settlement payment, you might feel that the bully has already won.
While compromise and “give and take” are important and valuable in most life circumstances, they are a means to victimization when you are facing a bully.
If you are facing a bully, I encourage you to hold your nose during the Settlement Conference and not allow yourself to be victimized. A trial is a very different place. It is not a place of smoke and mirrors and magic where a silver-tongued bully can win over an arbitrary judge.
In my experience, Small Claims Court is a place where justice is done. A Judge will step right in to help the soft spoken, less confident party along. In fact, I remember thinking as an articled student that it might have been a disadvantage, rather than an advantage, to come into court with a lawyer or an articled student against an unrepresented party.
I do recommend that you consult with a lawyer about your claim early on, to get an objective, legal perspective of what’s fair and to get important advice about how best to help the Judge sort the case out. Who knows, perhaps with feelings stripped away from the situation you will find out that the position you are taking is the unfair one under the law.
Published May 1, 2014 in the Kelowna Capital News
Posted May 1, 2014 on Kelowna Capital News Online
John Thompson
ICBC tells me their decision is final. There is no negotiation to their offer. I have very basic insurance coverage. Last October while at an event at my local Victoria seniors center my car was parked legally but an unknown member of the seniors center left earlier than me and backed into my car between the drivers fender and door. I called police and they said i must go to ICBC and they will contact them further. The damage to my 1992 Camry car was much more to repair than car was worth. But I decided to keep car as it is still very roadworthy and reliable. I investigated and gave them a licence plate and car description of vehicle parked across from mine on the accident day with paint on its bumper and they never followed it up. Their formula for payment is unfair in part that I did not turn the dented but safely driveable and insured car over to them and they charged a big fee for not getting a scrap value for my car too. Its not scrap yet! ICBC still allows it to be insured! I countered with an Email and my ICBC agent located in William’s Lake has lost my claim number! Any suggestions? Thank-you.
Paul Hergott, Personal Injury Lawyer
What a royal pain in the keister, John!
Thoughts, keeping in mind that my experience/expertise is in compensation for injuries, not vehicle damage claims:
1. In an INSURANCE CLAIM, where ICBC is wearing the hat of your collision insurance insurer, I suspect strongly that they have the right, if the expense to repair a vehicle is greater than the market value of the vehicle, to choose to pay you the market value on the condition that you turn the car in to them. It makes some sense….you get fully indemnified (you get the full market value of the vehicle) and they get to try to recover something for the salvage value;
2. In a TORT claim, i.e. your claim against the driver who ran into your car, that driver is required to compensate you for your losses. You are required to take reasonable steps to “mitigate” your losses (make them as low as possible). Your LOSS is having damage to your vehicle. That damage reduces the value of your vehicle, i.e. if you took it to a dealer to sell it, you would get far less for it than absent the damage (I assume). You could, arguably, pursue compensation for that reduced value while continuing to drive your vehicle. You would be faced, though, with an argument that your losses might be less if you were to have replaced the vehicle with another of similar type, age, quality (essentially, incurring the cost of the “market value” of your vehicle just like what ICBC is offering you), but you’d have to add the expense going along with replacing a vehicle (taxes, etc.), and recovered salvage value for the damaged one (just like ICBC wants to do), claiming the difference. You might add the time / pain in the keister for doing all that work (though I don’t know to what extent “general damages” (compensation for pain in the keister) are available for a strictly vehicle damage claim).
3. If pursuing your TORT rights, you need an offending driver. You have positively (it sounds like) identified the offending VEHICLE. You can claim against the driver as well as owner of that vehicle.
Was this stream of consciousness clear as mud?
Paul
Darrell Winsby
Hello Paul,
ICBC and their so called independent arbitrator have both decided against my appeal. I am a small business owner in the commercial trucking industry.
My argument for the case is based on pure and obviously not so simple physics. To elaborate there is no possible way I could be at fault due to “off tracking”. Where do I go from here?
Thanks,
Darrell Winsby
Paul Hergott, Personal Injury Lawyer
Darrell, it looks like you have no alternative but to proceed through the Small Claims process. Here is a recent column I’ve written on the subject, which has hyperlinks to others: https://www.hlaw.ca/its-not-always-the-big-guy-you-have-to-fight/.