RULE RULE 80. Civil Suits up to $30,000. A New Small Claims Process for Plaintiffs, Defendants and Third Parties

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1 Civil Suits up to $30, A New Small Claims Process for Plaintiffs, Defendants and Third Parties

2 Public Legal Education and Information Service of New Brunswick (PLEIS-NB) is a registered charity whose goal is to provide the public with information on the law. PLEIS-NB receives funding and in-kind support from the Department of Justice Canada, the New Brunswick Law Foundation and the New Brunswick Office of the Attorney General. We also wish to acknowledge the expertise and financial contribution that was made to the development of this booklet by the Court Services Branch of the New Brunswick Department of Justice and Consumer Affairs. This publication provides general information on certain types of civil suits made under Rule 80: Certain Claims Not Exceeding $30,000 of the New Brunswick Rules of Court. Rule 80 came into force on July 15, It replaces the previous small claims process with a simplified process for making claims in the Court of Queen s Bench, Trial Division. This booklet does not contain a complete statement of the law. Anyone needing specific legal advice should consult a lawyer. Published by: In collaboration with: P.O. Box 6000, Fredericton New Brunswick, E3B 5H1 Tel: (506) Fax: (506) pleisnb@web.ca Aussi disponible en français July 2010 ISBN:

3 Table of Contents 80 Background 1 Section 1: What Plaintiffs Should Know 5 A. Starting a Claim 6 Step 1: Completing the Claim Form 6 Step 2: Filing the Claim 7 Step 3: Serving the Claim 8 Step 4: Waiting For the Defendant to Respond 8 B. Withdrawing the Claim 9 Section 2: What Defendants Should Know 11 A. Responding to a Claim 12 B. Defending a Claim 14 Step 1: Completing a Dispute Note 14 Step 2: Filing a Dispute Note 15 C. Making a Third Party Claim 16 Step 1: Completing a Third Party Claim 16 Step 2: Filing a Third Party Claim 16 Step 3: Serving a Third Party Claim 17 Section 3: What Third Parties Should Know 19 A. Responding to a Third Party Claim 20 B. Defending a Third Party Claim 20 Step 1: Completing a Third Party Response 20 Step 2: Filing a Third Party Response 21 Section 4: What all the Parties Should Know 23 A. Serving Documents 24 Decide How to Serve 24 Get Proof of Service 24 File the Affidavit of Service 25 B. Changing Your Mind or Correcting an Error after Filing Documents 26 C. Settling a Claim, Counterclaim or Third Party Claim Before a Hearing 27 Parties agree on a settlement 27

4 Mediation 27 Settlement Conference 27 D. Scheduling a Hearing 28 E. Motions 29 Making a motion 29 Responding to the motion 29 F. Preparing for the Hearing 30 Before the Hearing 30 Tips on Preparing for the Hearing 32 At the Hearing 33 Presenting Evidence 33 The Judge s Decision 35 Recovering Costs 35 G. Setting Aside a Judgment 35 Setting Aside a Default or Interim Judgment 35 Setting Aside a Judgment after a Hearing 36 H. Enforcement 37 I. Appeals 38 Clerk s Offices 40 List of Forms 42

5 Background Information 1

6 Background Information This booklet offers general information on certain types of civil suits made under Rule 80 for money and/or personal property valued up to $30,000 that a person believes someone owes him or her. A person may also claim interest as long as the total amount of the interest and the claim is not more than $30,000. Rule 80: Certain Claims Not Exceeding $30,000 is found in the New Brunswick Rules of Court. Rule 80 came into force on July 15, 2010 and it replaces the previous small claims process with a simplified process for making claims in the Court of Queen s Bench, Trial Division. This booklet explains the process for Plaintiffs, Defendants and Third Parties. What is the new process for making a small claim? As set out in Rule 80, the process for starting a claim for debt, damage, or personal property, or a combination of these, for an amount up to and including $30,000, starts by filing the appropriate forms at the Clerk s Office at the Court of Queen s Bench, Trial Division. If you wish to start or defend this type of claim you must follow Rule 80. What are some types of claims made under Rule 80? Some common claims under Rule 80 include: Claims against a business that won t exchange or repair damaged goods you bought; Claims against someone who gave you a cheque that bounced ; Claims against someone who owes you money; Claims for money owing for a service you performed; Claims for damages (property or personal injury) caused by a car accident; Claims against someone for money for goods you bought but didn t get; Claims against someone who has bought goods, but not paid the invoice; Claims against someone who has property belonging to you. 2

7 Does Rule 80 apply to all civil suits under $30,000? No. Rule 80 does not apply to some claims, even if they are for an amount less than $30,000. For example, Rule 80 does not apply to: title to land, probate matters, libel and slander suits, or claims in the Family Division of the Court of Queen s Bench, no matter the amount being claimed. For these other types of claims, you will have to proceed under the other Rules of Court. This booklet will provide information only on Rule 80. What if my claim is over $30,000? If you wish to make a claim for an amount over $30,000, you can start a civil action through the Court of Queen s Bench under the other Rules of Court. If you wish to proceed under Rule 80, you must give up (abandon) the amount of your claim over the $30,000 limit. You must state what that amount is on your Claim form. Talk to a lawyer before deciding what to do. If you give up some of your claim, you cannot ask for the rest of it later. You also cannot split the amount into two or more claims. Who is involved in claims under Rule 80? Those involved in a Rule 80 claim are called the parties. They include some or all of the following: Plaintiff: This is the person making the claim. Usually, any adult or business can make a claim. Defendant: This is the person or business against whom a claim is made. The claim may include more than one defendant. Third Party: This is the person or business the defendant claims is responsible for all or part of the plaintiff s claim. 3

8 Litigation Guardian: This is an adult who has the court s permission to make or defend a claim on behalf of a person under 19 years of age. A litigation guardian could also represent someone who is disabled and cannot represent themselves, for example someone who is mentally incompetent. A person who wishes to be the Litigation Guardian for a plaintiff or defendant must complete a Consent to Act as Litigation Guardian (Form 80Q) and file it with the court. Notes 4

9 Section 1: What Plaintiffs Should Know 5

10 Section 1: What Plaintiffs Should Know A. Starting a Claim Step 1: Completing the Claim Form The first step in starting a claim is completing a Claim (Form 80A). You can get the form from the Clerk s Office of the Court of Queen s Bench. They have offices in each of the eight Judicial Districts throughout New Brunswick. The back of this booklet lists the addresses and telephone numbers of these offices. Tips on Completing a Claim Form follow the directions on the Claim form; type or clearly print the information; put your full legal name, telephone number, complete mailing address and home address, and, if applicable, address and fax number; include the name of each defendant. Be sure to spell each defendant s full name correctly and include a middle name or initial if possible; if you are suing an incorporated company, check the full legal name with Corporate Registry, Service New Brunswick, 432 Queen St., PO Box 1998, Fredericton, NB, E3B 5G4, (506) ; if you are suing more than one defendant, include information on all of them; if you are not sure who to name as the defendant(s) in your claim, you should seek a lawyer s advice; if known, fill in the address where each defendant lives; give each defendant s mailing address (if known and if different from the one above); state how much money and/or the value of the property you are 6

11 claiming against the defendant(s). Remember, if you are giving up any amount owed over $30,000, you must state that amount; include in your claim any expenses you may be responsible for, but wish to get back such as expenses to repay Medicare, cover the income you lost because of injuries or rental of a car while your car was being fixed; prepare a short explanation (particulars) of your claim; let the Clerk s Office know if your address changes after you file your Claim. Step 2: Filing the Claim To file your claim, take or send the completed original Claim form to the Clerk of the Court of Queen s Bench in the Judicial District where the defendant(s) lives or where the incident happened. You must include copies for each plaintiff and each defendant. If you are not sure of the Judicial District of the defendant, check with the Clerk s Office the telephone numbers are at the back of this booklet. If you send your Claim and the required copies by mail, be sure to include a self-addressed envelope so the Clerk can return these documents to you. Filing Fee: If the Claim is for $3,000 or less, you must include a filing fee of $50. If the Claim is for $3,001 to $30,000, the filing fee is $100. You can pay the fee by certified cheque or money order (payable to the Minister of Finance). You can pay in cash if you file your Claim in person. When the Clerk receives the original Claim form, he or she will mark a claim number and date on the form. You have now filed your claim. The Clerk will keep the original and return a stamped copy to you. The Clerk will also send you enough stamped copies of the Claim and blank Dispute Note (Form 80B) for each defendant. These are for you to serve on the defendants. NOTE: The number the Clerk marks on your Claim form is important. Refer to this number when you call or write the Clerk s Office for information about your claim. 7

12 Step 3: Serving the Claim The plaintiff must serve each defendant named in the Claim with a stamped copy of the Claim and a blank Dispute Note. These are documents that the Clerk returned and provided to the plaintiff when the claim was filed. Service means giving the defendants copies of these documents. The plaintiff must serve the defendant with the Claim and a blank Dispute Note within 6 months of filing the Claim with the Clerk. There are different Rules governing service of documents in New Brunswick and outside of New Brunswick. For more information on service of documents, see page 24, or ask the Clerk s Office for the Fact Sheet on Serving Documents. Extension: If you cannot serve the documents within 6 months of the date you filed the Claim, you will need to ask the Clerk for an extension of time to serve the documents. To do this, you must make the request to the Clerk in writing, either before the time for serving has expired or within six months after that time has expired. Step 4: Waiting For the Defendant to Respond After serving the Claim on the defendant, you must wait for the defendant to respond. During that time, the following could happen: You and the other parties agree to a settlement: See page 27. The defendant admits the Claim: If the defendant admits the Claim and pays the plaintiff, the plaintiff should file a Notice of Withdrawal (Form 80F) with the court. The defendant files a Dispute Note denying the Claim: If the defendant files a Dispute Note (Form 80B) denying all or part of the claim, the Clerk s Office will send you a copy. When pleadings are closed, the Clerk s Office will schedule a hearing and notify all parties. At least 20 days before the date of the hearing, the parties must provide the court and each other with a list of the witnesses and copies of the documents they intend to present at the hearing (see section 4 regarding Scheduling and Preparing for the Hearing). 8

13 The defendant files a Dispute Note that includes a claim against you (the plaintiff): If a defendant denies all or part of the Claim and also feels that you owe him or her money, the defendant can file a claim against you. This is called a counterclaim. It is part of the Dispute Note (Form 80B). If the defendant files a counterclaim and you wish to dispute it, you will have to file a Response to Counterclaim (Form 80C) with the Clerk within 10 days after receiving the counterclaim. The Clerk will provide the defendant with a copy of your Response. Note: The parties can come to a settlement any time before the hearing. What happens if the defendant does not respond? Although the defendant can file a Dispute Note any time up until a judgment is entered, if the defendant does not do so within 30 days of being served with the Claim, or the claim is not otherwise settled during that 30-day period, then you can ask for a judgment on the Claim. To do this, you must fill out and file a Request for Judgment (Form 80G) with the Clerk s Office. The Clerk will require that you provide proof of service of the Claim before entering a Default Judgment (Form 80H). Note: If you file a Request for Judgment on a claim that includes a claim for damages, the Clerk will note an Interim Judgment on the Claim and schedule a hearing before a Judge. The Judge will determine the amount of damages to which you are entitled. At this hearing, you will only be required to show the amount of damages that you incurred. Once the Judge decides on the amount of damages, he or she will advise the Clerk, who will then enter a Default Judgment. B. Withdrawing the Claim What if I decide I want to withdraw the claim? You may withdraw your Claim at any time if no Dispute Note or Third Party Response has been filed. If the defendant has filed a Dispute Note, you will have to get the written consent of the defendant to withdraw your Claim, or you may ask for permission (leave) from the court. (If the defendant has filed a Dispute Note and a Third Party Claim, and the third party has filed a Third Party Response, you will have to get the consent of both the defendant and the third party, or get permission from the court.) 9

14 To withdraw your claim, you must fill out a Notice of Withdrawal (Form 80F), file it with the Clerk s Office and serve a copy of it on the other parties. If you are withdrawing with the consent of the other parties, you must file the written consent together with your Notice of Withdrawal. Some common reasons that the plaintiff may withdraw a claim include cases where the defendant admits and pays the claim or where the dispute is settled. However, if you withdraw it after a Dispute Note is filed that includes a counterclaim, the defendant may be able to proceed against you with the counterclaim. Remember, when a claim is disputed and all of the parties named in the action have filed their respective claims or defences, or the time for filing any claims or defences has passed, the Clerk s Office will schedule a hearing. All parties will receive a Notice of Hearing (Form 80L) telling them the date, time and place that the hearing will take place. You should read section 4 carefully for more information on calling witnesses and preparing for a hearing. Notes 10

15 Section 2: What Defendants Should Know 11

16 Section 2: What Defendants Should Know A. Responding to a Claim If you are served with a Claim, you should read it carefully to decide how to proceed. Here is an overview of possible options. Admit the Claim You can admit and pay the Claim directly to the plaintiff. If you pay a Claim, you should ask the plaintiff to file a Notice of Withdrawal (Form 80F) with the court. Be sure to get a signed receipt from the plaintiff stating you paid the debt or returned the property. The receipt should state when and how much you paid and for what debt (or what property was returned). Settle the Claim If you and the plaintiff reach an agreement for some or all of the claim, you should both complete and sign a Settlement Agreement (Form 80K) and file it with the Clerk. The agreement should clearly set out all details of the settlement. The Clerk will record the settlement. Where a settlement agreement is filed, the plaintiff must also file a Notice of Withdrawal (Form 80F) withdrawing the claim. You should check with the Clerk s Office to make sure this was done. Admit some of the Claim You can admit part of the Claim but deny other parts of it. You must complete the Dispute Note (Form 80B) that was served with the Claim and file it with the court along with a $25 fee. On the Dispute Note you should set out where you agree and disagree with the Claim and why. For more information on how to dispute a Claim, see Defending a Claim on page 14. Note: The plaintiff may settle for the amount admitted in the Dispute Note, or continue the action for the full amount of the claim. 12

17 Deny all of the Claim You can deny all of the Claim. To deny the Claim you must set out the reasons on the Dispute Note and file it with the court along with a $25 fee. See Defending a Claim on page 14. Timelines for disputing all or some of the Claim If you decide to dispute all or some of the claim, including filing a counterclaim, you must file the Dispute Note with the Clerk s Office, along with the fee. If you do not file the Dispute Note within 30 days of receiving the Claim, a judgment may be entered against you without further notice to you. Deny the Claim and make a counterclaim If you deny all or part of the Claim and you also believe the plaintiff owes you money, you can file a claim against the plaintiff. This is called a counterclaim. You must complete the Dispute Note (Form 80B) that was served with the Claim and write down the details of your counterclaim in the counterclaim section of the Dispute Note. Remember, you should file the Dispute Note within 30 days of receiving the Claim. A counterclaim under Rule 80 may be for an amount of money and/or personal property valued up to $30,000. If the amount you wish to claim is greater than $30,000*, you must proceed using the ordinary Rules of Court, or give up the amount over $30,000. Discuss this option with a lawyer. To file a counterclaim, you do not have to serve the counterclaim on the plaintiff. Once you file the Dispute Note, which includes the counterclaim, the Clerk will send the plaintiff a copy. *Counterclaims over $30,000 If you wish to file a counterclaim under Rule 80 for an amount over $30,000, and you do not want to abandon the excess amount, a Judge may direct that the entire action proceed under the other Rules of Court. 13

18 Fee for Filing a counterclaim The fee to file a counterclaim depends on the amount of the claim. If the amount of the counterclaim is for $3,000 or less, the filing fee is $50. If the amount is for $3,001 to $30,000, the filing fee is $100. This is the maximum charge for filing a Dispute Note and counterclaim. Note: The plaintiff may file a Response to Counterclaim (Form 80C) to dispute the counterclaim. The Plaintiff must file the Response within 10 days after receiving the Dispute Note with counterclaim. The Clerk will send you a copy of the plaintiff s Response. Deny the Claim and make a Third Party Claim If you think someone else is responsible for all or part of the plaintiff s Claim, you can file a Dispute Note to show you disagree and file a claim against the person you think is responsible. See Making a Third Party Claim for greater detail on how to file a claim against a third person. B. Defending a Claim This section offers more information if you (the defendant) deny responsibility for all or part of the Claim and decide to defend the Claim. You would follow these steps. Step 1: Completing a Dispute Note To defend a Claim, you must fill out the Dispute Note (Form 80B) which was served with the Claim. This form provides a space for you to explain what happened and why you are not responsible for the Claim. If you admit some parts of the claim, but dispute other parts, you should indicate where you agree and where you disagree. If you wish to also make a claim against the plaintiff, you must fill out the counterclaim section on the Dispute Note. You must include your full legal name, telephone number, complete mailing address and home address, and, if applicable, address and fax number. 14

19 Timeline for filing Dispute Note You should complete and file a Dispute Note within 30 days of receiving it. If you don t, the plaintiff can ask the Clerk to enter a Default Judgment against you without further notice to you. If a default judgment is entered against you, you may ask the Court to set aside this judgment. This would create more paperwork for you, and there is no guarantee you would be successful. See page 35, for more information on Setting aside a Default or Interim Judgment. Be sure to let the Clerk s Office know if your address changes after you file your Dispute Note. Step 2: Filing a Dispute Note To file a Dispute Note, including one that has a counterclaim, you should do so within 30 days of receiving it. Take or send the completed Dispute Note to the Clerk s Office in the Judicial District where the plaintiff filed the Claim. The judicial district is noted at the top of the Claim. When filing your Dispute Note, you must attach copies of the Dispute Note for each plaintiff. You must also include the filing fee. Fee for filing a Dispute Note No service required: You do not have to serve the Dispute Note on the plaintiff. The Clerk will send the plaintiff a stamped copy. You and the plaintiff may settle any time before the hearing. If no settlement can be reached, the Clerk will schedule a hearing and notify all the parties. There is a $25 fee to file a Dispute Note. Fee for filing a Dispute Note that includes a counterclaim If your Dispute Note includes a counterclaim for $3,000 or less, the total filing fee is $50. If the Dispute Note includes a counterclaim for more than $3,000, the total filing fee is $100. You can pay the required fee by money order or certified cheque payable to the Minister of Finance. You can only pay in cash if you file the Dispute Note in person at the Clerk s Office. 15

20 If my Dispute Note includes a counterclaim, when will the judge make a decision about my counterclaim? A Judge will most often decide the counterclaim at the hearing of the original Claim. However, if this cannot be done, the Judge will hear the counterclaim immediately after the original hearing or at some other time that the Judge orders. C. Making a Third Party Claim If you (the defendant) think someone else is responsible for all or part of the plaintiff s Claim, you can name that third party in the claim. If you do file a claim against a third party, you must still file a Dispute Note. To name a third party, you must also take the following steps: Step 1: Completing a Third Party Claim You must get a Third Party Claim (Form 80D) from the Clerk s Office. Fill in this form and set out your reasons for making a claim against the third party. Example of a Third Party Claim Someone is suing you because you hit their car and caused damage. The accident happened because someone else s car hit you and you think that person should have to pay for the damages to the plaintiff s car. You can make a Third Party Claim against that person. Step 2: Filing a Third Party Claim You must file the Third Party Claim with the Clerk s Office where the plaintiff s Claim was filed, within 30 days of receiving the original Claim, along with a $50 fee. Include enough copies for each third party, as well as a copy for each plaintiff. The fee may be paid by money order or certified cheque (payable to the Minister of Finance). Cash is only accepted if the Third Party Claim is filed in person. The Clerk will return enough stamped copies for you to serve on each of the third parties along with blank Third Party Response forms. Remember, you can settle the Third Party Claim any time before the hearing. 16

21 Step 3: Serving a Third Party Claim Once you file the Third Party Claim, you must serve the third party within 15 days with a copy of the original Claim, a copy of the Dispute Note, a copy of the Third Party Claim, and a blank copy of the Third Party Response (Form 80E). (See page 24 for more information on serving documents.) Note: You do not have to serve the original plaintiff with the Third Party Claim. The Clerk will send a copy to the plaintiff. Remember, when a claim is disputed and all of the parties named in the action have filed their respective claims or defences, or the time for filing any claims or defences has passed, the Clerk s Office will schedule a hearing. All parties will receive a Notice of Hearing (Form 80L) telling them the date, time and place that the hearing will take place. You should read section 4 carefully for more information on calling witnesses and preparing for a hearing. If my Dispute Note includes a Third Party Claim, when will the judge make a decision? At the hearing of the original Claim, the Judge will most often decide the counterclaim (if there is one) and the Third Party Claim. If this cannot be done, the Judge may decide to hear the Third Party Claim immediately after the original hearing or at some other time. If the hearing of the Third Party Claim will cause unreasonable delay, the Judge may order that it proceed as a separate action. 17

22 Notes 18

23 To withdraw your claim, you must fill out a Notice of Withdrawal (Form 80F), file it with the Clerk s Office and serve a copy of it on the other parties. If you are withdrawing with the consent of the other parties, you must file the written consent together with your Notice of Withdrawal. Some common reasons that the plaintiff may withdraw a claim include cases where the defendant admits and pays the claim or where the dispute is settled. However, if you withdraw it after a Dispute Note is filed that includes a counterclaim, the defendant may be able to proceed against you with the counterclaim. Section 3: What Third Parties Should Know 11 19

24 Section 3: What Third Parties Should Know A. Responding to a Third Party Claim If you are served with a Third party Claim, you should read it carefully to decide how to proceed. Here is an overview of possible options. Settle before the hearing: A third party may settle a Third Party Claim at any time before the hearing (see page 27). If a settlement is not reached, a Judge will most often decide the Third Party Claim at the hearing of the original Claim. Dispute the plaintiff s Claim against the defendant: To dispute the plaintiff s original claim against the defendant, you must complete the Third Party Response. Defend the Third Party Claim: To defend the Third Party Claim, or dispute the plaintiff s original claim against the defendant, you must complete the Third Party Response. B. Defending a Third Party Claim Step 1: Completing a Third Party Response If you wish to defend the Third Party Claim, or dispute the plaintiff s original claim against the defendant, you must complete the Third Party Response (Form 80E) stating what happened and why you are not responsible for the amount being claimed (or why the defendant is not responsible for the amount being claimed by the plaintiff). You must include your full legal name, telephone number, complete mailing address and home address, and, if applicable, address and fax number. You must also let the Clerk s Office know if your address changes after you file your Third Party Response. 20

25 Step 2: Filing a Third Party Response You must file the completed Third Party Response with the Clerk s Office, along with a filing fee of $25 and copies for the other parties. Your response should be filed within 30 days of receiving the Third Party Claim. If it is not filed within 30 days, a judgment may be entered against you without further notice to you. The fee may be paid by certified cheque or money order (payable to the Minister of Finance). Cash is only accepted if the Third Party Response is filed in person. Note: A third party does not have to serve this document on the other parties. However, you must include enough copies for each party. The Clerk will send a stamped copy of the Third Party Response to the plaintiff(s) and the defendant who filed the Third Party Claim. Remember, when a claim is disputed and all of the parties named in the action have filed their respective claims or defences, or the time for filing any claims or defences has passed, the Clerk s Office will schedule a hearing. All parties will receive a Notice of Hearing (Form 80L) telling them the date, time and place that the hearing will take place. You should read section 4 carefully for more information on calling witnesses and preparing for a hearing. If I dispute the Third Party Claim or the plaintiff s original Claim against the defendant, when will the judge make a decision? A Judge will most often decide the Third Party Claim at the hearing of the original Claim. If this cannot be done, the Judge may decide to hear the Third Party Claim immediately after the original hearing or at some other time. If the hearing of the Third Party Claim will cause unreasonable delay, the Judge may also order that the Third Party Claim proceed as a separate action. 21

26 Notes 22

27 To withdraw your claim, you must fill out a Notice of Withdrawal (Form 80F), file it with the Clerk s Office and serve a copy of it on the other parties. If you are withdrawing with the consent of the other parties, you must file the written consent together with your Notice of Withdrawal. Some common reasons that the plaintiff may withdraw a claim include cases where the defendant admits and pays the claim or where the dispute is settled. However, if you withdraw it after a Dispute Note is filed that includes a counterclaim, the defendant may be able to proceed against you with the counterclaim. Section 4: What all the Parties Should Know 11 23

28 Section 4: What all the Parties Should Know This section offers general information and explains the following procedures that may be relevant to the plaintiff, defendant and third party: A. Serving Documents Decide How to Serve Serving documents on another party means giving them the documents. If you are required to serve documents on another party, you may consider the following options: You can hire someone such as the Sheriff s Office to serve the documents. Or, you can look under process servers in the yellow pages. You can ask a friend to do it. You may serve the documents yourself. You can send the documents by prepaid mail or courier. To learn about the full details of the procedure for serving documents you should review Rule 18 of the New Brunswick Rules of Court. It is available free online at If you are serving someone outside of New Brunswick, see also Rule 19. Get Proof of Service You will need proof of service to show the Clerk that you served the other party (which might be the Defendant(s), Third Parties or Witnesses). To prove service, the server must swear or affirm and sign an Affidavit of Service (Form 18B) in front of a Commissioner of Oaths. What is a Commissioner of Oaths? This is someone who has the power to witness a sworn statement. All lawyers are Commissioners of Oaths. A number of other people may also be Commissioners of Oaths. 24

29 The affidavit states that the server gave the documents to the party being served. After the server has signed it, the Commissioner of Oaths will then sign and date the form. If the server uses prepaid mail or prepaid courier, the party being served MUST sign the Acknowledgment of Receipt Card (Form 18A) and return it to the server. Another way to get proof is for the server to get the signature of the party being served. Be sure that you do not sign a release agreement for the courier to leave the package without getting that person s signature. If you use Canada Post s Registered Mail service, they will provide confirmation that they received the item for mailing and that the item arrived at its destination. Insist that the only person who can sign for it is the party being served. You can get a copy of their signature and the date the package was delivered by calling , though some restrictions may apply. Canada Post can fax the signature to you or you can view the signature online at: You may also get a hard copy of the signature from Canada Post if necessary, for a fee. The server must still complete and swear an Affidavit of Service and return it to you. Be sure to attach the signed Acknowledgement of Receipt and/or other proof of receipt to the Affidavit of Service. Note If you cannot prove service on a party, then you will not be able to get a judgment. If you cannot prove service of a Summons on a witness and the witness does not show up, the Judge may continue the hearing without your witness. File the Affidavit of Service A party who has served documents on other parties must return copies of the completed Affidavit of Service to the Clerk of the Court of Queen s Bench. (If the service was done by prepaid mail or prepaid courier under Rule 18.03(3) to (5), they must also attach the Acknowledgment of Receipt.) The Clerk will put this form in the file for the case to prove that the other parties involved in the case have been informed. Copies of the documents that were served on the party must be attached to the Affidavit of Service. 25

30 B. Changing Your Mind or Correcting an Error after Filing Documents If you wish to withdraw your claim, you will have to file a Notice of Withdrawal. If you wish to correct an error after filing a claim, a defence or a response, as the case may be, you will have to amend your documents. You should know the following: To correct an error or make a change, you can file an amended copy of the document with the Clerk before the hearing. To do this, o you must mark the copy Amended and underline any additions or otherwise identify any other changes. o After you file the amended document, you must serve it on all the other parties, including anyone noted in default. o You must file and serve an amended document at least 20 days before the date scheduled for the hearing unless the court orders otherwise. Note: If you have been served with an amended document, you are not required to file your own amended claim or defence. To withdraw a Claim, counterclaim or Third Party Claim, you must fill out a Notice of Withdrawal (Form 80F), file it with the Clerk s Office and serve a copy of it on the other parties. If you are withdrawing a Claim or Third Party Claim, and a Dispute Note or a Third Party Response has already been filed, you cannot withdraw without the consent of the other parties or the permission (leave) of the court. Where you are withdrawing with the consent of the other parties, the consent must be in writing and filed together with the Notice of Withdrawal. A counterclaim may be withdrawn at any time. NOTE: If the plaintiff withdraws the Claim after a Dispute Note is filed that includes a counterclaim, the defendant may still go ahead with the counterclaim. Similarly, if the defendant withdraws a counterclaim or Third Party Claim, the plaintiff may still go ahead with the Claim. 26

31 C. Settling a Claim, Counterclaim or Third Party Claim Before a Hearing Parties to a dispute can and should try to settle before the hearing. Many claims, counterclaims and third party claims are settled before a hearing. This can happen any time before a hearing begins. Here are some of the methods for settling: Parties agree on a settlement: If the parties can reach an agreement for some or all of the claim, they can all complete and sign a Settlement Agreement (Form 80K) which includes the date and sets out the details of the settlement. They must have someone witness their signatures. The Agreement must be filed with the Clerk. When such an agreement is reached, the plaintiff should also file a Notice of Withdrawal (Form 80F) to withdraw the claim. (If the defendant has filed a counterclaim or third party claim, he/she should also file a Notice of Withdrawal.) The Clerk will record the settlement. Mediation: Mediation may also be a way that parties can get help to settle the Claim. A mediator is a person whose job it is to help people settle disputes. The parties would be responsible to pay their own expenses for mediation. Look in the yellow pages for a list of private mediators. Again, any agreement reached should be set out in a Settlement Agreement (Form 80K), signed by all parties and filed with the Clerk. Settlement Conference: In some cases, the Judge may review the documents in the file and decide that it is appropriate to hold a settlement conference. The Clerk would then notify the parties that before hearing the action, the Judge requires them to attend a settlement conference. At this conference, the Judge would help the parties settle the dispute. If a settlement is reached, the parties would complete and sign a Settlement Agreement (Form 80K) with details of the settlement and file it with the Clerk, along with a Notice of Withdrawal (Form 80F). Note: If the parties cannot reach an agreement during a settlement conference, a different Judge will hear their case in court. Any discussions or notes related to the settlement conference will remain confidential and cannot be used at the hearing. 27

32 Even if an agreement is not reached, but some of the issues are resolved, the parties must prepare and sign a statement that sets out all of the issues that have been resolved. The statement must be filed with the Clerk, who will provide it to the judge who will hear the case in court. The parties must prepare this statement whether or not these issues were resolved as a result of a settlement conference before a judge. Some Advantages to Settling Both parties can avoid the time and money spent on a hearing; The agreement to settle is binding on both parties; The parties can file the agreement with the Clerk; If the defendant admits to part of the Claim, the parties may agree on this amount as payment for the whole claim; The parties can negotiate a payment schedule that is agreeable to all; A judgment will not be entered against the defendant. You can come to an agreement any time before a hearing begins, whether or not a settlement conference is held. D. Scheduling a Hearing The Clerk will schedule a hearing for an action when pleadings are closed. A pleading is the formal statement to the court in which a party sets out the details of a claim or defence. A Claim, Dispute Note (with or without a counterclaim), Response to Counterclaim, Third Party Claim and Third Party Response are all examples of a pleading. Pleadings are closed when all of the parties named in the action have filed their respective claims or defences, or the time for filing any claims or defences has passed. The Clerk will provide the parties with a Notice of Hearing (Form 80L) telling them the date, time and place that the hearing will take place. 28

33 E. Motions Sometimes, when a case is already before the courts, one of the parties may wish to ask the judge to make an order about the case. To do so, you would have to make a Motion. Rule 80 sets out the specific requests that any party to the action can ask a judge to make. For example, if a case has been decided, but one of the parties has filed an appeal, that party may also ask the court to delay any judgment that was made against him/her (this is referred to as a stay ) until the outcome of the appeal. Motions can be helpful but they can also make the case take longer and cost more money. Motions are decided at a hearing by a judge. Costs: If the judge grants your motion, you can ask the judge to make the other party pay some of your costs. These costs can include court filing fees, lawyer or agent fees, and expenses for witnesses, photocopying, faxing and delivery of documents. Making a motion: Here is what you should know about making a motion: Fill out a Notice of Motion and Supporting Affidavit (Form 80R) explaining what you want and why. In the section called Supporting Affidavit, explain the facts supporting your motion. Obtain a hearing date for the motion from the court and write this date on the Notice of Motion and Supporting Affidavit form. Serve the Notice of Motion and Supporting Affidavit on the other parties. This must be done at least 7 days before the court date for the motion. (See page 24 for information on service of documents.) File the completed Notice of Motion and Supporting Affidavit and an Affidavit of Service with the court at least 3 days before the date scheduled for the hearing of the motion. Responding to the motion: If you are one of the parties to the action and you have been served with a Notice of Motion, you should respond to the motion. To do so, you must fill out the Affidavit (Form 80S) stating the facts that you want the judge to consider. This Affidavit must be served on the other parties and filed with the court, along with proof of service, at least 2 days before the court date for the motion. 29

34 F. Preparing for the Hearing Before the Hearing If the defendant has filed a Dispute Note denying all or part of the Claim and the parties have not been able to settle, the Clerk will schedule a hearing. The parties will receive a Notice of Hearing (Form 80L) that sets out the time and place for the hearing. Unless you have a very good reason, it is important to attend the hearing. If you have a good reason why you cannot attend, contact the Clerk as soon as possible to discuss the matter. Each party to the action must provide the Court with the following information at least 20 days before the date scheduled for the hearing: a list of the witnesses that the party intends to call, and copies of the documents that the party intends to use at the hearing See Tips for Preparing for the Hearing for information on completing a Summons to Witness (Form 55A under the ordinary Rules of Court) that would require a witness come to the hearing. Notifying the other party: Each party must also provide each other party with the list of witnesses and copies of the documents that they have filed with the Clerk s Office. You are responsible for providing copies of this information to the other parties in the action at least 20 days before the hearing. Filing a supplemental witness list and documents Once a party receives the witness list and documents that the other party will rely on at the hearing, he or she may file a supplementary witness list and copies of supplementary documents. Any such lists or documents must be filed with the court and provided to the other parties at least 4 days before the date scheduled for the hearing. 30

35 Expert witnesses: If you intend to call an expert witness or introduce a report with an expert s opinion, you should know that the rules are different. According to Rule 80: To call an expert witness to testify at the hearing, you must serve the other parties with a summary of the expert s proposed evidence at least 30 days before the date of the hearing. To introduce a report stating the expert s opinion, you must serve the report on the other parties at least 30 days before the hearing. The summary of the expert s proposed evidence or the expert s report, as the case may be, must be served in accordance with Rule 18. See page 24 for information on serving documents. Note: If another party serves you with an expert s report, you may serve that party, at least 14 days before the hearing, with written notice requiring the expert to attend the hearing for cross-examination. However, if the judge finds that it was unnecessary for the expert to be there, he or she may order you to pay the expert s expenses. IMPORTANT: If you do not file the information with the Clerk s Office, or if you do not give it to the other party, within the required time, the Judge may not allow you to use it at the hearing. (For example, the Judge may not allow you to call a witness to testify that was not on the list or introduce a document at the hearing which was not included in the copies of documents you provided). Be sure to keep your original documents and bring them with you to the hearing. 31

36 Tips on Preparing for the Hearing It is important for all parties to prepare for the hearing. 32 Gather all documents concerning your case. These could include receipts, contracts, estimates of damages, photographs, cancelled cheques, and I.O.U.s. Remember, at least 20 days before the hearing, you must file with the court copies of any document you wish to rely on at the hearing. You are also responsible for providing copies of this information to the other parties in the action, at least 20 days before the hearing. Organize your thoughts by jotting down what happened and when it happened. This will help you present your side of the story clearly at the hearing. Consider using witnesses. Witnesses may help prove a party s case. A witness is anyone with firsthand knowledge or information about the case. Any party can have witnesses. You must file with the court a list of the witnesses you plan to call to testify, at least 20 days before the hearing. You must also provide this list of witnesses to the other parties in the action, at least 20 days before the hearing. If you are calling an expert witness, you must file a summary of the expert s evidence and serve it on the other parties, at least 30 days before the hearing. If you are introducing an expert s report, you must file and serve it at least 30 days before the hearing. Contact any witnesses you want to give evidence to support your case. It is your responsibility to let your witness know the time and place of the hearing in advance. Tell them if you want them to bring anything to the hearing with them. Summon witnesses who may not show up. If you are worried a witness will not show up for the hearing, you can summon them. A Summons to Witness (Form 55A under the ordinary Rules of Court) requires a witness come to the hearing. The Summons will tell the witness when and where to appear and what, if anything, they need to bring with them. The Clerk will issue a Summons to the party requesting it, and the party who requested the Summons must serve it on the witness. (See Serving Documents for a reminder on how to serve someone). Pay attendance fees. The person calling the witness must pay attendance money to each witness they summon at the time the Summons is served. The amount is $35 for each day of attendance at the hearing, and $30 for each overnight stay (if necessary). You also have to pay for any travel costs (20 per kilometre to and from the hearing), and this may also include the minimum return air fare if the witness resides outside the Province.

37 At the Hearing The hearing is informal, but similar to an ordinary court proceeding. The case will be decided by a Judge of the Court of Queen s Bench. The Judge may ask witnesses questions, hear and receive evidence, award costs, and decide disputes. Do the parties need a lawyer? It is always a good idea to get legal advice about your case. You can have a lawyer or an articled student at law represent you. However, if you wish, you can present your own case at the hearing. An officer, partner or employee may represent a corporation or a partnership. The Judge will first ask the parties if they tried to settle the claim. The Judge may give you more time to reach an agreement. If you are able to settle the dispute, you must prepare and file the settlement agreement with the Clerk. This agreement is binding on both of you. However, that means the case ends without a hearing and there is no judgment filed. The Judge may allow any party to make changes to their claims at the hearing. This could include a change to the Claim, the Dispute Note and, if applicable, the counterclaim, Response to Counterclaim, Third Party Claim or Third Party Response. If a witness cannot come to the hearing, the Judge may allow the evidence in a sworn written statement. Presenting Evidence At the hearing, the Judge will hear evidence from the plaintiff(s), defendant(s), and third party (if there is one). The evidence is usually given in person, under oath. Evidence might include witnesses or any documentation, photographs, receipts, contracts, estimates of damages, cancelled cheques, and I.O.U.s, that are relevant to the case. Plaintiff(s) presents case first... Each party has a turn presenting his or her evidence and witnesses. First the plaintiff presents his or her evidence. Afterwards, the 33

38 defendant can ask questions of each witness if he or she wants. Next a third party who is disputing the original Claim can ask questions. Defendant(s) presents case next.. Once the plaintiff finishes presenting evidence, the defendant can present his or her case. Afterwards, the other parties have a chance to ask questions. Third Party presents next Finally, the third party, if there is one, can present evidence and the defendant and plaintiff can ask questions. Counterclaim heard after the Claim... After hearing the evidence in the Claim, the Judge will hear the counterclaim (if there is one). In this case, the defendant in the original Claim presents evidence first and then the plaintiff can ask questions. The plaintiff then presents and the defendant can ask questions. Consequences of failing to appear at a hearing If any party does not show up for the hearing: The Judge may decide the case without hearing that party s side of the story. A plaintiff may have his or her Claim dismissed, and he or she may have a judgment made against him or her on a counterclaim. A defendant may have his or her counterclaim or Third Party Claim dismissed, and he or she may have a judgment made against him or her. A third party may have a judgment made against him or her. The Judge could adjourn the hearing and set another date to hear the case. If the Judge sets another date for the hearing, any party that does not show up may have his or her claim(s) dismissed, and a judgment may be made against that party. 34