Default Judgment,Danger Danger Danger!

Time flies when you are having fun and it flies even faster if you have been served.

Depending on the method of service, Defendants usually have 14 days to file a Reply in Provincial Court. When calculating the days of service you do not count the day you were served and you do count all of the last day.

14 days is not a lot of time to collect all of your evidence and prepare a proper response to a claim served upon you. What if you are late? If you fail to file your Reply in time, the Claimant can apply for default judgment. Default judgment is far from a minor inconvenience or legal hurdle. While there is case law that supports overturing a default judgment if certain circumstances are met, that outcome is never assured.

Default judgment essentially allows a Claimant to leapfrog all of the stages of small claims litigation and obtain judgment immediately. It’s an instant win. If the damages are not quantified in the claim then its a win with the amount to be determined (imagine handing the Claimant a blank cheque from your bank account or giving them your bank card and PIN). If damages have been specified in the Notice of Claim then interest and fees will be tacked on and the Claimant can proceed with collections proceedings. Your opportunity to defend yourself is gone.

Scary stuff.

Andrews v. Clay, 2018 BCCA 50 (CanLII) Looked closely at what is required to set aside a default judgment obtained in Small Claims court. In this case default judgment was obtained for failure to apply a mediation. The parties wrote each other, in part, as follows:

[11]        …. Mr. Andrews sent an email to counsel for Ms. Clay advising that he did not think mediation was an appropriate process for the claim and stating that:

I won’t attend a mediation – not just because the other Defendants are not going to be there, but because the action cannot be resolved through mediation.

[12]        The same day, Mr. Andrews received a response from counsel for Ms. Clay advising that:

Under the Small Claims Rules you are obligated to attend the mediation whether or not another party is in attendance. Thus, we will proceed to attend the mediation as scheduled.

…

[14]        Before doing so, Ms. Clay’s solicitor sent an email to Mr. Andrews stating that:

Please be advised that due to your failure to attend the mediation that was scheduled yesterday on April 30th and pursuant to rule 33 (sic) of the Small Claims rules, we will be seeking default judgment against both you and Jesse Andrews [Mr. Andrews’ daughter, who was a co-defendant].

[15]        Mr. Andrews responded in part:

… So file for the default judgment against me if you wish – I will just appeal it. … As I mentioned to you in previous correspondence – even if I had shown up, I would not have participated in a mediation …

[16]        The default judgment was entered on May 1, 2014.

This matter was subject to appeals all the way up to the British Columbia Court of Appeal.

All cases in BC that examine whether to set aside a default judgment go straight here: Miracle Feeds v. D. & H. Enterprises Ltd. (1979), 10 B.C.L.R. 58 (Co. Ct.) wherein Judge Hinds set out the following test:

… in order for a defendant to succeed on an application to set aside a default judgment, he must show:

1.         That he did not wilfully or deliberately fail to enter an appearance or file a defence to the plaintiff’s claim;

2.         That he made application to set aside the default judgment as soon as reasonably possible after obtaining knowledge of the default judgment, or give an explanation for any delay in the application being brought;

3.         That he has a meritorious defence or at least a defence worthy of investigation; and

4.         That the foregoing requirements will be established to the satisfaction of the court through affidavit material filed by or on behalf of the defendant.

There are other noteworthy cases in this area depending upon the circumstances, but Miracle Feeds remains the backbone of the test in most cases. In Andrews v. Clay , the appellant was a law school graduate and not a lawyer. It was found that Mr. Andrews willfully failed to attend the mediation. The appeal was dismissed.

Dogs in Court …

Pets are becoming a bigger part of our lives and being welcome into more venues and public spaces. When more humans and dogs interact, or more dogs and dogs interact, the possibility for something to go wrong increases. More and more cases are coming out regarding our canine friends.

Recovery for vet bills: East v. Wong 2025 BCCRT 766

Refund for a dog: Pauze v. Dogway Dog Rescue Society 2018 BCCRT 865

Unwanted pregnancy for a dog: Ibrahim v. Roberta Henry, (dba Darling Dogs) 2019 BCCRT 320

Improper care for a dog: Cohen v Rex Dog Hotel & Spa Ltd. 2018 BCCRT 489

Affordable legal BC handles small claims and is perfectly suited to help you with your pet claims in the unfortunate event that you need us. We even have a dog on staff to meet with your furry friend.

Missing Evidence

Again and again it happens. The more I review Claim Resolution Tribunal decisions the more I see it. Missed opportunities to present evidence. Many Claimants and Respondents in the tribunal seem confused about how to bring their evidence before the tribunal. Without evidence to support your side, you are just spinning your wheels.

Without commenting on what could have been different in their respective cases, here are some recent examples:

Jivraj v. Del Palaganas 2024 BCCRT 1132

“The problem for Mr. Jivraj is that they provided no evidence, submissions, or argument for these claims.”

Power v. Simpkins 2024 BCCRT 817

“22. The applicant says the accident caused cracks in the condenser. The applicant says he did not notice the air conditioner had issues until after the weather got warmer.

23.   The difficulty for the applicant is he has provided no evidence, such as photos of the condenser or a statement from his repair shop, that the accident caused damage to the air conditioning unit of his truck. So, I find he hasn’t proven these later repairs were a result of the accident and I dismiss his claim for reimbursement.”

Reid v. ICBC 2024 BCCRT 804

“35.   As Mr. Reid did not provide any evidence about his wife’s work schedule or when she was unable to care for the children, I find he is not entitled to a benefit under this section.

Mr. Reid has not provided any evidence that he has paid anything, so I find he has not proven entitlement to ADL benefits.”

51.   I accept that over 2021, Mr. Reid sold some wood from his property, which was accounted for under his income replacement benefit. However, he provides no support for the “millions” he said he could have achieved from the City of Courtney if he had sold his property as “development property”. There is no evidence Mr. Reid does not still own the property, which could still be sold for some amount in the future.

52.   Mr. Reid has also not provided evidence of any payments to another person to perform his duties with respect to working on his property. So, I find Mr. Reid is not entitled to family enterprise benefits, and I dismiss his claim.”

This could not be further from an exhaustive list. By searching CRT decisions where a party is representing his or herself, it is common to find rulings similar to those above. After the frustrations arising from making a claim, and the time and money spent, parties are not having their cases truly assessed on its merits with missing evidence.

If you are considering a CRT claim, or a small claims action, it is vitally important that all necessary and relevant evidence is obtained and properly presented. Please feel free to contact our office with any evidentiary questions you might have.

Sometimes it isn’t about the money

The Supreme Court of BC does not have a monetary jurisdictional cap, it can deal with millions, or billions of dollars. The Provincial Court of BC is capped at $35,000, still a considerable amount of money. The CRT deals with debts owed up to $5,000. But what about even smaller amounts, or claims that are not primarily focused upon the all-important dollar? Minor disputes, grievances, points of contention?

Some of those claims are still dealt with by the Provincial Court, depending upon the circumstance. The CRT often deals with even smaller claims where the lowest possible filing fees are necessary (usually $150)because the claim isn’t for debt. An example of this is as follows:

Should you be allowed to have a hot tub on your rooftop patio? Is it furniture?

Emmerton v. The Owners, Strata Plan BCS 3407, 2022 BCCRT 872

In this case the applicants placed an inflatable hot tub on a their rooftop patio. The strata says its bylaws do not permit hot tubs on patios. Emmerton examined another similar case where the tribunal was asked to determine whether a moveable hot tub is furniture:

“Trent v. The Owners, Strata Plan EPS3454, 2020 BCCRT 358, a tribunal member engaged in a thorough review of court and CRT decisions involving an interpretation of the terms “furniture” and “patio furniture”.

Here, I find there is no similar permanent quality to the applicants’ hot tub. As noted, it is inflatable. The applicants provided video evidence showing that the hot tub can be inflated or deflated within about 5 minutes, and it is easily folded and carried by 2 people when deflated.

What I like about this case is that everyone has an opinion about whether an inflatable hot tub is “furniture”, and everyone has an opinion about what constitutes “moveable”. The desire to have a hot tub on your patio is understood by everyone.

I have been following this case for some time now and I can report that it reached the Court of Appeal.

A fun read by Lisa Steacy of CTV news can be found here:

https://bc.ctvnews.ca/b-c-s-highest-court-hands-down-decision-in-inflatable-hot-tub-dispute-1.7083445

I encourage you to read the article, but I will save you some time and advise that the BCCA dismissed the appeal. The hot tub could stay.

https://www.bccourts.ca/jdb-txt/sc/23/15/2023BCSC1571.htm