Provincial Court (Small Claims Court) 101 & Preparing for the Pre-Trial Conference
If you are a party litigant to a Provincial Court (Small Claims) Action that has passed the Mediation stage and will go to trial, the Court shall schedule a Pre-Trial conference with a Judge to determine whether your claim may settle, and if not, what steps are required for a trial.
Things take the time they take. Don’t worry.
-Mary Oliver
It is important to prepare well in advance, as this preparation will set you up to for a more successful settlement or trial. Each party litigant must attend the scheduled Pre-Trial Conference.
Prior to this Pre-Trial Conference, you [or if you have a lawyer or agent] will be sent a Notice of the scheduled Pre-Trial Conference. This Notice sets out:
The date, time, place, and room at the Courthouse for this conference.
That you, as a party to this litigation, must attend.
That it is expected that the parties will consider the option of settlement of the action.
That at least 14 days prior to the Pre-Trial Conference, the parties must exchange all records and provide a copy to each of the other parties, at their address for service.
Preparing for the Pre-Trial Conference
Prior to the Pre-Trial Conference, you should review the Pleadings in the lawsuit, as discussed below.
Civil Claim
The Plaintiff (the person that starts the lawsuit) has filed a Civil Claim, detailing the facts supporting the Plaintiff’s claim, and setting out the relief that the Plaintiff is seeking from the Court against the Defendant(s).
In most cases, this Civil Claim should be formatted in numbered paragraphs, and:
Should identify the parties carefully, explaining who each party is and why each party is involved in the Plaintiff’s claim. You must consider if all of the “correct” parties are named in the litigation as plaintiff or as defendant.
Should carefully distinguish and consider whether the claim is correctly by or against a company or by or against an individual and if there have been corporate searches done.
Should set out clearly the facts (the detailed story) that gives grounds for the claim against the Defendant(s):
If this is a contract dispute, the Civil Claim should clearly reference the contract, the parties to the contract, its essential terms, and why claim arises (what is the complaint or the breach of contract);
If this is a “tort” claim, namely a claim that the Plaintiff has suffered a wrong by the conduct of the defendant, such that a loss was suffered, then the Civil Claim should fully detail of the conduct, the wrong, and detail the loss suffered.
Should be clear that the matter in dispute arose within two (2) years before the filing of the Civil Claim at Court.
Should set out the relief that the Plaintiff is seeking from the Court.
If the Civil Claim is not detailed or clear, the Plaintiff may be asked, or may be given an opportunity by the Judge, to file an amended Civil Claim by a certain date.
Dispute Note
The Defendant (the person against whom the relief is sought) must file a Dispute Note after being served by the Plaintiff. There is usually a time limit in which the Dispute Note must be filed and this will mentioned on the document itself. If the Dispute Note filed does not dispute the claim adequately, judgment may be entered at Court by the Plaintiff against the Defendant because of this error.
Each named Defendant should file a separate Dispute Note.
In most cases, the Dispute Note:
Should state that “The Defendant denies each and every allegation in the Civil Claim, unless it is expressly admitted in the Dispute Note.”
Should set out in detail any facts in the Civil Claim that are accurate and admitted.
Should deny in detail any facts in the Civil Claim that are not accurate and are not admitted.
Should set out in detail any additional facts that support the Defendant’s defence.
Should as a caution plead “In the alternative, the Plaintiff’s claim is barred by the Limitations Act of Alberta as being filed at court too late in time.”
Should seek dismissal of the Civil Claim with costs to be awarded to the Defendant.
If the Dispute Note is not clear, the Defendant may be given an opportunity by the Judge to file an amended dispute note by a certain date.
Counterclaim
The Defendant may have determined that the Defendant has a claim against the Plaintiff. This is referred to as a Counterclaim. If so, and if it arises out of the same factual situation, then a Counterclaim should be filed and should clearly state the basis for the Claim, similar to what the Plaintiff must do in the Civil Claim.
If a Counterclaim has not been filed, the Defendant may ask, or be given an opportunity by the Judge, to file a Counterclaim by a certain date.
Third Party Claim
If the Defendant believes that someone else is responsible or liable for the Plaintiff’s claim, then the Defendant should have filed a Third Party Claim against that responsible person at the same time as the Dispute Note is filed. This Third Party Claim must be served (handed to or sent by registered mail) similar to service of a Civil Claim.
If the facts giving rise to a Counterclaim are raised at the Pre-trial , the Judge may be asked or may propose that a Third Party claim should be filed and served immediately by the Defendant. This Third Party claim should be detailed, similar to the Civil Claim.
Parties
Whether you are the Plaintiff, or a Defendant, at the time of Filing of your pleadings, you must consider carefully whether all the necessary and appropriate parties are named in the pleadings (the “proper parties”). It is important that you identify the proper parties in an action.
If there are corporations or businesses involved in the matter, each party should consider whether a Corporate Search, which gives information regarding a business or corporation, should be undertaken.
Be clear, a company (corporation) is not the same person and is a distinct legal entity in respect of the “owner” of the company. If the Owner of the company is also named as a defendant, in most cases two Dispute Notes should be filed (one for the owner and one for the company).
Sometimes, for instance, a plaintiff may name as a defendant an individual, when in fact the legal entity involved was a corporation, such that the claim may need to include the corporation which was the contracting party or the involved party carrying on the conduct.
It often occurs that a lawsuit is unsuccessful simply because the wrong party or person was named as the plaintiff or defendant. Stated again, keep in mind that an incorporated business is a distinct person, at law, from any individuals involved in the business.
Records to be Produced
As the Notice of Pre-Trial Conference states, the records that must be provided to the Court and to the opposing party, by 14 days prior to the Pretrial, include:
documents, contracts, cheques, invoices, letters, receipts, repair estimates, photographs or videos, printouts of any emails or other electronic messages, duplicate copies or transcripts of any voicemail messages, or any other materials that relate to the action.
You are to bring a set of these records with you to the pretrial conference.
You should also bring a copy for the Court, and a copy for the other side, if you have not already provided a copy to them.
Pre-Trial Conference
At the pretrial conference, the Provincial Court Judge (referred to as Your Honour, or Sir or Madam):
Shall make general inquiries relating to the factual background of each position;
Shall ask who the witnesses are going to be for each party, and if they are not all known, at least the number of witnesses who will be called by each party;
Shall ask for an estimate of the time that it may take to have each of the witnesses give evidence and cross- examined at trial;
Shall canvass the parties again whether there is any possibility of settlement;
Shall set a trial date.
At the Pretrial conference, the Judge may give the following directions or information:
Direct the final date by which each of the parties must deliver to the other side all relevant and producible documents that are related to the lawsuit, if this is not already been done;
Direct that in preparation for the Trial, the parties should cooperate and prepare a binder containing all the documents each party shall wish to rely on at trial. Usually, the binder is in chronological order, with numeric tabs and indexed (Book of intended Exhibits);
Direct the parties to cooperate as much as possible to come to an agreement on what facts are not in dispute – the Judge may suggest that the parties try to cooperate to prepare a document which sets out the facts that are not in dispute;
Direct that any statutory or jurisprudence legal authority should be copied and placed in a numeric tabbed binder, with an index and provided to the court prior to trial (Book of Legal Authorities);
Direct the Plaintiff to be sure to properly obtain evidence and documents to prove its damages or its claimed financial loss;
Direct that hearsay evidence is permissible, but will state that the trial judge has discretion as to how much “weight” to give to such evidence [Hearsay is, for example, a document from someone other than a witness; or hearsay a witness stating what has been told by someone];
Direct that evidence must be given by witnesses who attend at court, and not by letters and not by affidavit, and direct that any witness be served with a Notice to Attend.
Direct that the successful party will usually be awarded some “costs” to be paid by the unsuccessful party, following trial;
Suggest that having regard to all matters to consider, the parties should consider “reasonable settlement offers”.
State that if a settlement offer has been made before trial, and was not accepted by a party, and the other party obtains a better award judgment than that at trial, that costs awarded may be doubled or increased.
Trial Matters
The Judge at the Pre- trial may discuss the following Trial matters with you:
Party’s role
It is important to understand that the Plaintiff, or the Defendant, each have a significant role in the trial process. At trial:
Your counsel cannot state your evidence to the court, nor simply present your documents to the court. You have to do that, by answering questions that your lawyer ask of you truthfully and without perjury, as to actual knowledge. Those questions cannot be “leading” (that is to say, your lawyer or agent can only ask “what happened, without stating facts”, and your lawyer or agent must not state in the question “any facts which have not been otherwise testified to by the witness”.
Your witnesses have to give evidence, and personally must attend. To be clear, obtaining letters or affidavits of witnesses is not generally permissible. Your witnesses actually must attend at trial, enter in the witness box, be sworn under oath to tell the truth, be questioned regarding their evidence, and answer those questions.
Depending on the case, you may need an expert to give evidence regarding some matter. Those experts must provide an expert report in advance of trial, which will be delivered to the other side, and these experts should attend trial to be questioned regarding their qualifications in order to be accepted by the Court as being experts. These experts require payment to attend.
Witnesses, First-hand Truthful Evidence and Hearsay
You as the Plaintiff or Defendant must testify in respect of facts to which you have actual personal knowledge.
Although in Provincial Court hearsay is “allowed”, only in specific instances will a witness be allowed to testify as to what someone else may have told the witness about something, and generally only if that person who told it to the witness is also going to be called as a witness by one of the parties and can be cross-examined upon such testimony.
Otherwise, you must have witnesses at trial who have actual personal knowledge (were there and witnessed or heard the event themselves).
In this regard, your particular matter we may need to have third party witnesses. Each party shall need to meet with witnesses discuss their intended testimony , well prior to the Pre-Trial Conference.
Witnesses should be served with a Notice to Attend Court which compels their attendance.
You must keep in mind that testimony must be truthful, and if any testimony is subsequently determined to have been knowingly untruthful by a party, or by a witness, this deceit on the Court is unlawful and may be reported to the Crown /Police, as there are Criminal Code sanctions relating to such misconduct.
Experts
Often in legal proceedings, to prove a fact, an expert witness will need to be retained by the Plaintiff, to provide expert evidence, relating to how such loss or harm was actually caused, or to quantify the loss suffered.
Similarly, an expert witness may be retained by a Defendant to demonstrate that it was not an act or omission to act of the Defendant that caused the loss or harm to the Plaintiff, or to disprove the loss claimed by the Plaintiff.
Further, often in legal proceedings, in order to quantify or qualify the damages that were sustained by the Plaintiff, or for the defendant to deny what has been qualified or qualified as the damages sustained by the Plaintiff, expert witnesses will be retained by each party.
The court will inquire if expert witnesses have been retained and when will the expert report be provided to the other party. The Judge usually sets a date for the expert report to be provided prior to trial.
In most cases, expert witnesses are costly. In order to assist the expert witnesses, similar to the assistance that will be provided to your lawyer, by you, the expert witness must be provided with all relevant facts and documents that may relate to the matters in issue to be opined upon by the expert witness.
Role of a Lawyer or Agent
In a sense, at trial each party plays the music (by testifying to the facts), and if you involve a lawyer or agent, this person acts only as a “conductor” helping a party organize how its “music” (your facts) are going to be presented to the trial judge.
For this reason, you have to be intensively involved in the preparation of your case, from the outset of issuance of Pleadings, all the way through, to determination of who the witnesses will be, to the conclusion of Trial or otherwise the conclusion of the legal proceedings by settlement.
Costs
At the pretrial conference, the judge will advise the parties of the prospect that the successful party at trial will be awarded “costs” against the unsuccessful party to the litigation. These costs are set out in a tariff in the Provincial Court rules.
At the pretrial conference, the judge will customarily advise the parties that if there has been an offer made by one party to the other party, on a reasonable basis, prior to trial, that when the outcome of the trial results of, if such offer made is equal to or better than the outcome of trial, the party that made the offer will receive costs a more advantageous cost award if it’s the Plaintiff that made the offer and is more successful than the offer that was made in the court customarily will double the costs that would otherwise have been awarded to the successful Plaintiff.
On the other hand, if a defendant has made an offer to settle, which exceeds so the award received by the Plaintiff at trial, that instead of the Plaintiff receiving costs for the trial, customarily the trial judge will award costs to this “unsuccessful” defendant.
In the result, prior to trial, each party may wish to consider making an offer of settlement to the other side, whether it is only to result in a more advantageous award of costs at trial to such party who made an offer.
Lastly, and while this is an infrequent outcome, if a party to the litigation has conducted either the litigation, or the underlying cause of the litigation in a high-handed, dishonest, or deceitful, or otherwise egregious manner, the Judge has jurisdiction to award costs on an even greater basis against such offending party litigant.
Settlement
At the outset of the Pretrial Conference, or during the Pretrial Conference, it is customary for the judge to inquire of each of the parties whether there is a possibility of settlement of the claim or any part of the claim of the Plaintiff.
In the context of such inquiry by the Judge, the judge may initially advise the parties that anything that may be said at the pretrial conference is to be treated as being “without prejudice” and what is stated in the pretrial conference by any of the parties cannot and shall not be treated as an admission of any fact or legal position.
It is sometimes said that the “without prejudice” label means that in “nothing that is said in the pretrial conference can be used later”. To be clear, each party still needs to be careful, because although what is stated in the pretrial conference cannot be used later in the context of “Well, a party stated in the pretrial conference that…”, and therefore cannot be deemed to be an admission, what is stated will be “heard” and the other party will then be aware of such information or position and may take steps to otherwise obtain evidence of such information. Indeed, at the trial the other party may question specifically on such information, and since a party has an obligation in law to testify truthfully, what you may disclose at the pretrial conference, factually or legally, can potentially be used against you. Care must be taken for this reason notwithstanding the “without prejudice” nature of the candid communications at the Pretrial Conference.
At the pretrial conference, we discuss the nature and risks of trial generally to the parties.
If sufficient factual information has been disclosed in the pleadings, or has been presented at the pretrial conference, the judge may comment, without any binding nature or final judgement, upon the strength the weaknesses of the Plaintiff’s claim or the Defendant’s defence. Some judges are more candid and frank regarding their observations and considerations of the respective claim or defence at this time.
Explain the concepts of trial, and regardless of the prospectively of the parties, that the outcome of a trial should always be considered in some degree to be uncertain. Simply put, the nature of the matters which the parties provide the evidence at trial is witnesses, factual disagreements, and sometimes uncertainty relating to the application of the relevant legal or judicial principles, are such the outcome of a future trial is rarely certain.
Further, in order to proceed to trial parties may incur legal costs, the delay of having the trial heard me result in interest costs, the ability to have a financial outcome immediately, as opposed to sometime in the future and with possible appeals to a higher court, and the actual uncertainty of trial, is often suggested to be reasons that each the parties should consider a “compromise”.
For this reason, although each of the party litigants may in advance of the pretrial conference consider that they are not prepared to settle, the pretrial judge will canvas settlement, and explain all of these potential outcomes, risks, delay and costs, and during the pretrial conference a settlement is sometimes reached avoiding the necessity of a trial.
If either of the party litigants are firmly fixed on seeking an outcome “in accordance with the legal rights”, then the reality is that a trial will then be necessary and your legal rights will be determined by that single trial judge, whatever that outcome may be, and however uncertain that outcome may be to the parties.
If settlement is reached at the pretrial conference, this is usually documented by the judge, and then becomes binding upon the parties as a judgement.
If settlement is not achieved at the pretrial conference, this does not preclude subsequent discussion before trial, to settle the matter between the parties.
Pre-Trial Directions
Following the Pre-Trial conference, if there has been no settlement, the Court shall send a document to each party containing the mandatory directions for the Trial and confirming the Trial dates.
Respectfully,
Clive Llewellyn
Llewellyn Law