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Adv Civ Lit Final
Second half of Review sheet
| Question | Answer |
|---|---|
| When is an application for a summary judgment in action made? (9-6) | Can be made only after the defendants has filed a response to civil claim and in some default applications. If there are multiple defendants, only one must have filed a response. |
| When can an application for summary trial be made? (9-7) | Can be made only after the defendant has filed a response to civil claim. |
| How and by whom is a summary judgment in action made? (9-6) | Made by notice of application and affidavit. Heard in chambers, and can be heard by a master even though it's a final order (PD 34). |
| How and by whom is a summary trial application heard? (9-7) | Made by notice of application and affidavit. Heard in chambers, and must be heard by a judge unless 9-7(11) or (12) apply. |
| When are summary trials appropriate in personal injury actions? (5 factors) | The claim is modest and wage loss is minimal; no suggestion of malingering; not a complex case; no obvious or serious inconsistencies in evidence; no serious issues of plaintiff's credibility. |
| What notice must be provided for a summary judgment in action (9-6) application? | Same as other applications - 8 business day's notice of the hearing and a response within 5 business days of of service of the application. |
| What notice must be provided for a summary trial (9-7) application? | 12 business days notice of the hearing and the response must be filed/served within 8 business days of service of the notice of application. If you are relying on interrogatories or evidence from examination you must give notice of that. |
| What is the deadline in advance of which a summary judgment in action application must be heard? | There is no deadline beyond anything in 8-1. |
| What is the deadline in advance of which a summary trial application must be heard? | At least 42 days before the date set for trial, and in accordance with 8-1 |
| Where does an appeal of a summary judgment in action trial go? | Court of Appeal |
| Where does an appeal of a summary trial application go? | Court of Appeal |
| Which scale of costs applies of an offer to settle under 9-1 is made and accepted? | Scale B |
| What does the court consider when determining the scale? | Difficulty of the matter: scale A = matter of little or less than ordinary difficulty; scale B = matter of ordinary difficulty; scale C = matter of more than ordinary difficulty. |
| What is the 'default' scale? | Scale B |
| What are the times that determine days or half days? | If under 2.5 hours, reduce 50% of units || 2.5 hours = half day || >2.5 hours < 5 hours = full day || > 5 hours = +50% of units. |
| If an activity does not take place, but it was prepared for, what may a registrar allow? | A registrar can allow the units for preparation up to the maximum for one day of preparation for that activity. |
| If an offer to settle a bill of costs is refused unreasonably, what may a registrar do? | A registrar may allow extra units or double the units that relate to the preparation of the settlement. |
| What are each of the three scales in Appendix B used for? | Schedule 1 is for default judgments; schedule 2 is for writs of execution and garnishing orders; schedule 3 is for interlocutory applications. |
| What does "costs follow the event" mean? | That the unsuccessful party pays the costs of the successful party and that costs are only payable at the conclusion of the "event," or matter. |
| Who decides how and to whom costs are awarded? | The court has the exclusive jurisdiction over this, unless as directed by statute. |
| How are costs awarded in connection with applications? | If granted, given to the party who brought the application, if they win the matter. If application refused, given to the party who opposed, if they are successful in the matter. |
| What happens when the judgment amount is in Small Claims jurisdiction, with regard to costs? | Costs beyond disbursements are not normally awarded unless there is sufficient reasons. |
| What costs are awarded in fast track litigation? | If the trial is one day or less then $8000.00. More than a day, less than two days then $9,500.00 and more than two days is $11,000.00. |
| Costs thrown away | Costs that are awarded to the party defending the action or application because the matter or application had no merit and the defending party has thrown away their costs in its defense. |
| Costs in the cause | Costs awarded dependant on the result of the matter (successful party is awarded costs) |
| Costs in any even of the cause | Costs are awarded to a party regardless of how the matter turns out. |
| Wasted costs | Costs of this kind are ordered as a compensation not as a punishment. |
| How do you offer to settle costs? | By specifying an amount in Form 123 |
| What types of units are there? | Fixed, range and daily. |
| When are costs spoken to? | At the end of a proceeding. |
| If costs are not spoken to, what happens? | Either party can apply to the court before the order is entered. If the order has been entered, you can apply under the slip rule to change it. |
| How do you enforce costs? | By entering the certified bill of costs in the registry so it becomes a judgment. |
| When suing a company in small claims, which address do you use? | The registered address which can be obtained by search. |
| When can you start a small claims action against a company incorporated outside BC? | When they have assets in BC and it's not an extra-provincial company. |
| Who should be named as defendants in a motor vehicle accident | Both the driver and the registered owner should be named. |
| How do you name BC as a defendant? | HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA |
| How do you show the amount of your small claims claim? | It should be broken into separate parts and should indicate how you arrived at each number. |
| How do you express interest? | In an annual rate |
| What is a defendant owes more than $25,000.00? | You can abandon the excess claim if you want by writing "I am abandoning the amount of my claim that is over $25,000.00" You can no longer pursue that amount in any court. |
| What costs are available in small claims? | If a claimant is successful then they can claim the filing and service fees. |
| Where does a small claims action get started? | At the registry nearest to the defendant's residence or place of business, or nearest to the place the transaction or or event took place. |
| What is a small claims defendant served with? | the defendant's copy of the Notice of Claim and a blank Reply |
| How can you effect service Small Claims documents? | By personal service or by registered mail. |
| What party must always be involved in a motor vehicle accident case? | ICBC Legal Department, which must be served with a copy of each Notice of Claim |
| How long do you have to serve the Notice of Claim once it has been filed? | Within 12 months |
| What must a defendant do once served with a Notice of Claim? | File a reply within 14 days of being served with the Notice. |
| Who serves the filed Reply? | the court registry, will serve it on the Defendant within 21 days after the Reply is filed. |
| Once all the replies in a case are filed what happens? | The registry will schedule a Settlement Conference. |
| What is a Certificate of Readiness? | A form filed with the small claims registry in personal injury cases within 6 months of the Notice of Claim being filed before the registry will schedule a Settlement Conference. |
| What happens if a defendant doesn't file a reply? | The claimant can obtain a default order which is enforceable as a judgment. |
| Acknowledgement of Payment | a form of receipt available at the Small Claims registry |
| Notice of Withdrawal | a form indicating that the claim is withdrawn because of settlement outside of court |
| Request for Payment Schedule | By filing a Notice of Payment Hearing when the defendant does not dispute liability but cannot pay the claim, the claimant can have the court determine the payment schedule. |
| When can changes be made to Small Claims documents? | Any time before the Settlement conference; and afterwards with the permission of a judge. Once the amened claim is served, affected parties can in turn amend their documents. |
| Does it cost anything to amend a small claims document? | Typically no, unless adding a counterclaim to a reply. |
| Who hears small claims matters? | Judges can hear all types of applications. Registrars can hear consent order applications. There are no masters. |
| How much does it cost to participate in the Court Mediation Program | Nothing, unless an interpreter or signer is required. The Attorney General will pay |
| When is mediation especially useful? | When the parties in conflict have some kind of reltionship to one another (neighbours, colleagues etc) |
| How does a case go to mediation? | By automatic referral by the court (eg construction) or when one party chooses to do so. |
| What claims are exempt from mediation? | Motor vehicle accidents. |
| What is the consequence of not attending mediation? | The case may be dismissed against the party not in attendance. If a defendant does not attend, then the claimant may ask for a default judgment. |
| What happens if mediation does not solve the issues? | Then a settlement conference will be scheduled. |
| Notice to Mediate for Claims Between 10K and 25K | A form used by one party to compel the other party(ies) to participate in mediation. In this case, the parties will share the cost of the mediation. It must be filed and served on all parties. Registry scheds settlement conf after given result of Med. |
| How is a mediator appointed? | Within 14 days of the service of Notice to Mediate Claims between 10K and 25K, the parties must select a mediator, or apply to BC Mediator Roster for an appointment of a mediator. |
| When does mediation happen? | within 60 days after the notice to mediate and at least 7 days before the date of the settlement conference. |
| If someone does not attend a mediation, what will happen? | Verification of Default is completed by the mediator who will give it to the parties. It is then filed and the consequences ensue. |
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