Appealing a Court Decision in Civil or Family Matters

If you disagree with a decision of the BC Provincial Court or BC Supreme Court, you can ask a higher court to review the decision of the judge to determine if the judge  made any errors in that decision. This review is called an appeal. The appeal court will determine whether the judge made an error in applying the law, in reviewing the facts, or a combination of these. If the higher court finds that the lower court made an error, it can overturn the decision or order a new trial.

An appeal court is concerned only with identifying errors of law and mixed fact-and-law. It will not re-hear a case from beginning to end, and it will not change or overturn a decision simply because it does not agree with some part of the decision or finds some part of it unfair. The appeal court focuses on whether the appellant shows that the decision-maker made a legal or factual error that affected the outcome of the case.

To successfully start an appeal, you must act quickly and follow the correct procedures, which we describe below.

BC Supreme Court Decisions

To appeal an unfavourable decision of the BC Supreme Court, you must file an appeal at the BC Court of Appeal. Within 30 days of the date of the decision you are appealing, you must do the following:

  • prepare a Notice of Appeal;
  • file the Notice of Appeal at the BC Court of Appeal registry;
  • pay the court filing fee; and
  • serve a copy of the filed Notice of Appeal on the respondent(s).

The BC Court of Appeal does not automatically hear an appeal of every case. You will be able to appeal nearly any BC Supreme Court civil or family trial decision. But for some other types of decisions, you will have to ask the Court of Appeal’s permission to appeal, called “leave to appeal”. Typically, decisions requiring leave to appeal are orders made at case management conferences (such as case planning conferences or trial management conferences), interim orders, orders about procedural matters (such as those granting or refusing time extensions), and orders dealing only with costs. Section 11 of the Court of Appeal Rules sets out the full list of the types of decisions that require leave to appeal.

BC Provincial Court Decisions

To appeal a decision in a Small Claims civil matter or Provincial Court family matter, you must file the appeal at the BC Supreme Court, which is the court level above the Provincial Court.  The BC Supreme Court has final jurisdiction over Small Claims appeals, and the parties cannot further appeal the BC Supreme Court’s appeal decision to the BC Court of Appeal.

To start an appeal of a Provincial Court decision, within 40 days of the decision you wish to appeal, you must prepare a Notice of Appeal, and file it at the Supreme Court registry closest to the Provincial Court which issued the decision you seek to appeal. You must also serve a copy of the filed Notice of Appeal on the other party.

In addition, you must pay a deposit of $200 to the Supreme Court registry, which is security for a costs award to the other party if you lose your appeal. If you win your appeal, the court will return the deposit to you. You must do all this within 40 days after the court decision you seek to appeal.

Transcripts and Arguments

In both Supreme Court and Provincial Court appeals, once the respondent has been served with the Notice of Appeal, the appellant must take steps to order a transcript of the proceeding that culminated in the court decision under appeal. The appellant must then file a copy of the transcript at the court registry, along with a copies of evidence submitted in the original proceedings (such as exhibits, affidavits and other documents) and serve a copy of these materials on the other party.

After that, the appellant must prepare a written argument (called a “factum”) setting out the grounds for the appeal, file it at the court registry, and serve it on the respondent. The respondent will then have a period of time to prepare and file a reply argument, and serve it on the appellant.

Thereafter, the court will schedule a date for the hearing of the appeal, and the parties will appear in court to speak to and reply to the appeal.

Legal help for Appellants and Respondents

If you want to appeal a court decision affecting you, or need to respond to another party’s appeal of a decision affecting you, we are happy to help.  We will review the decision, provide you with advice on the prospects of success of the appeal, and assist you in every step of the appeal process.

 

Supreme Court of Canada Upholds Passengers’ Rights

Air Canada A-320 by BriYYZ is licensed under CC BY-SA 2.0

The Supreme Court of Canada has unanimously ruled that provisions of the Air Passenger Protection Regulations brought in by the Canadian Transportation Agency in 2019 were valid and not in contravention of a treaty call the Montreal Convention.

The Air Passenger Protection Regulations require airlines to compensate passengers in the event of international flight delays, cancellations and denial of boarding.  They also provide for refund of baggage fees for lost or damaged baggage on international flights.

The challenge brought by airlines and international transportation organizations claimed that the Montreal Convention provisions limited the compensation to what the treaty allowed.  The Montreal Convention and its predecessor the Warsaw Convention are treaties adopted by the majority of countries of the world to create a standard of liability for international air transportation.

The Supreme Court looked at article 29 of the Montreal Convention which dealt with how a person affected could claim compensation against an airline.  Article 29 referred to an action for damages, which meant a court case, brought by the individual.  It stated that in the event of such a court case the limits of the convention applied.  Those limits were expressed in Special Drawing Rights.  For passenger delay the maximum was about $1800 CAD.  For cargo delay the maximum was about $31 CAD per kilo.

The Supreme Court said that these limits did not apply to the Air Passenger Protection Regulations.  It reasoned that the regulations setting out a scheme of compensation were quite different from a court case brought by an individual.  There was no “action for damages” in the protection regulations.  There was no individualized compensation resulting from that court case.  The regulations were a consumer protection scheme that operated in parallel with the Montreal Convention.  The regulations did not require a passenger to show proof of harm as would be required in a court case.

Under the regulations the compensation was fixed.  The regulations provided an entitlement to standardized compensation that did not seek to measure a passenger’s actual loss.

The Supreme Court said that the Montreal Convention and the protection regulations can coexist.  The protection regulations set out minimum compensation without having to commence a legal action.  The Montreal Convention protects the airlines from unlimited liability.

Judicial Review – When Tribunals make mistakes

Judicial reviewing document on the desk

What are tribunals?

Tribunals are decision-makers set up by the government to make decisions about specific types of disputes. The government creates these specialized bodies to reduce the range and quantity of disputes that courts have to deal with in the first instance, and to deal with specific issues more efficiently and affordably than the courts. Tribunals that members of the public often deal with include the Residential Tenancy Branch, the Civil Resolution Tribunal, the Employment Standards Tribunal, the Workers’ Compensation Appeal Tribunal and the Human Rights Tribunal.

What do tribunals do?

These tribunals make decisions that affect important aspects of people’s lives – whether they are evicted from their apartment; whether their strata council is unfairly applying noise or rental bylaws; or whether an employer has discriminated against them on the basis of race, gender or sexual orientation. When a person affected by one of these tribunals’ decisions believes that the decision was arrived at unfairly, and has exhausted any internal review processes made available by that tribunal, that person can apply for judicial review.

What happens in judicial review?

In a judicial review, a person affected by a tribunal’s decision asks a judge of the BC Supreme Court to review the decision and determine if the tribunal arrived at its conclusion unreasonably, or conducted the hearing in a procedurally unfair manner. However, the judge will not re-hear the whole case, and will not overturn the decision simply because the applicant does not agree with it or wants another chance to present his or her arguments. In a judicial review, the judge is limited to reviewing the tribunal’s decision and the written reasons for it, and determining whether the decision was reasonable and the procedures the tribunal followed were fair.

The courts recognize that the law gives the tribunal the power to make the decision, so judges must defer significantly to the tribunal’s decision-making authority and not interfere with its decisions unless it makes a major error in reasoning or procedure.

What happens if you win a judicial review?

If you succeed in a judicial review, the court will cancel the tribunal’s decision, and order the tribunal to re-hear the case and issue a new decision. The tribunal will hear the case a second time and make a new decision without repeating the mistakes it made the first time. The other side may also have to pay your “costs”, or a portion of your legal expenses, even if you did not hire a lawyer.

What happens if you lose a judicial review?

If you lose a judicial review and the court does not interfere with the tribunal’s decision, then the original decision will remain in effect. You may have to pay the opposing party’s costs.

If a tribunal has made a decision affecting your life and you believe it has made a serious error in reaching that decision, or someone else has applied for judicial review of a tribunal decision made in your favour, we would be happy to review the case and give you the advice and representation you need.

Solving Your Tenancy Issue

The Banff Apartments

For landlord or tenant, the dispute resolution procedure at the Residential Tenancy Branch offers advantages over other court proceedings.  While it can be stressful, it can be quick, simple and inexpensive.  The hearings are conducted by telephone and are often completed in 40 minutes.  In many cases the parties handle the matter without a lawyer.

Problems arise when a case is difficult to prove.  The common errors are no receipts for rent payments, no condition inspection report, oral communications between tenant and landlord rather than in writing by email and not using the forms required by the Residential Tenancy Act.  Disorganized record keeping is a hindrance to success.  Sometimes a problem is the aggressive manner of the other party.

Hearings follow an inquisitorial procedure.  This means that the arbitrator asks questions because he or she will have read the submissions before the hearing.  This shortens the proceedings considerably. The arbitrator tries to clarify points while at the same time the arbitrator gives the parties an opportunity to tell their sides of the story. 

Having well organized submissions is vital.  A lengthy, rambling jumble of facts is not persuasive.  Well indexed documents are helpful.  

There is a wide variety of cases that go to a hearing.  There can be noise issues, a tenant’s complaint about poor living conditions, the landlord’s need for the premises, a tenant’s disturbing behaviour, damage to the premises, smoking and rent issues. 

One of the unique features of hearings is the option during the hearing for a settlement to be reached.  This is very unlike Supreme Court.  The arbitrator can ask the parties if there is a halfway point that can be reached with respect to a move out date or a dollar amount.  When this occurs, the arbitrator’s decision is a summary of the settlement terms.  Sometimes a settlement is a best way out when the arbitrator gives an indication of problems in the evidence of one or both of the parties. 

When there is no settlement the arbitrator will produce a decision and an order.  An order of the Residential Tenancy Branch is as enforceable as a Supreme Court order.  It has to go through a couple of steps however, before it can be presented to a bailiff.  It must be entered in Provincial Court and then in Supreme Court.  Once that is done for an eviction, a bailiff is authorized to enforce it by attending at the residential premises and removing items inside. 

An Application for Dispute Resolution is a serious matter, since claims can be awarded as high as $35,000.  It is best to consult a lawyer at the beginning to determine next steps and whether a lawyer’s assistance is required in the background or for a greater level of involvement.

Separation and Divorce in BC

Family Time California Sunset

Although the breakdown of marriages is more common today than it was several decades ago, for many who go through it, it remains an emotionally challenging and complicated process. In Canada, separation and divorce are governed by federal laws and laws specific to each province. In this article, we explore the main stages and considerations involved in divorce and separation in British Columbia.

Jurisdiction

To apply for divorce in British Columbia, you or your spouse must have lived in BC for at least a year before filing the divorce application.

Married and Unmarried Spouses

In British Columbia, you do not need to be married to be a “spouse” under the law. You are a “spouse” if you are or were married, or were not married but lived in a “marriage-like relationship” for at least two years. If you were not married you do not need to get a divorce, but you can still ask the courts to make decisions about any disputes arising from your relationship, such as those relating to property division, financial support and parenting of children.

Grounds for Divorce

A court can grant you a divorce if you or your spouse were married and have lived separate and apart from each other for at least a year. You do not need to prove that your spouse was at fault in some way for the breakdown of the relationship. However, a court can grant you a divorce before a year of separation has elapsed if you can show that your spouse committed certain acts that led to the breakdown of the marriage, such as adultery or physical or mental cruelty. Most people who file for divorce, however, do so on a no-fault basis. You do not need to wait a full year after separation to file the divorce proceeding, but a court cannot grant you a final order of divorce on the basis of separation until the separation has lasted at least a year.

Family Issues

In most cases, before a court will grant a final divorce order, the court has to be satisfied that the parties have reached a fair settlement of the usual financial and parenting issues that spouses have to address when their marriage ends. These issues typically include division of property, child support, spousal support, parenting time and parenting responsibility. If the spouses have not already agreed on how to resolve these issues before filing a divorce application, they will need to resolve them by negotiation, mediation, or litigation. The courts encourage parties to resolve these issues as amicably as possible through negotiation and mediation, as doing so is far less expensive and psychologically draining than going to court and asking a judge to determine how these issues should be resolved.

Agreements

Spouses who are able to resolve their family issues amicably through negotiation or mediation often enter into written separation agreements. These agreements set out how the spouses have agreed to divide their property, to distribute child support and spousal support, and how they will apportion parenting time, parenting responsibility and decision-making between them. Once spouses sign the agreement, they can file it with the court to show that they have resolved their other family issues before seeking a final order of divorce.

Getting Advice and Representation

During a divorce, getting legal advice or representation from a family lawyer can help you protect your rights, reach a fair resolution of any unresolved family issues you have with your spouse, and reduce the stress of this often emotionally difficult process.  If you or someone you know is facing a divorce or relationship breakdown, feel free to contact us. We would be happy to assist.

Common Strata Property Issues

Dense west end apartments from Burrard Street Bridge

Clients who live in properties that are part of a strata corporation (“strata”) frequently encounter issues with their neighbours, their strata council, and the application of strata bylaws. Here are some general tips for addressing the most common issues faced by strata owners and residents:


Strata fines or sues you

When strata council concludes that an owner or tenant has breached a Strata bylaw, it may fine the owner to deter the owner or tenant from committing that breach. It may charge the owner for the expense of repairing or replacing damaged property, and otherwise addressing the subject of that breach.

After issuing a fine, Strata must give the owner or tenant at least two weeks’ notice of its payment demand and intention to sue if the owner does not pay. If an owner fails to pay in time, Strata Council may start a proceeding in the Civil Resolution Tribunal or Small Claims (Provincial Court) to collect the monies claimed. If the owner challenges the claim, the Strata Corporation will have to prove the bylaw breach.

Water damage to your unit 

Water damage is a problem many owners must deal with at some point during their tenure in a Strata building. Although a common issue, it can be complex to resolve. It usually requires a review of the strata bylaws, and often requires hiring a professional to assess the cause of the damage and estimate the cost of repairs.

Both owners and strata corporations should both take care when undertaking repairs in a unit, as they should pay for only those repairs for which they are responsible. Strata will need to find authorization in the strata bylaws to proceed with a repair, and owners or tenants who seek to undertake repairs should review the bylaws and get prior written approval of the scope and price of repairs from strata before repairing anything that may be strata’s responsibility.

Keeping a pet

 Strata corporations frequently enact bylaws that limit the number or size of pets that may be kept in a strata unit or that prohibit residents from keeping pets in their units.

 Owners who already had pets in their unit when a restrictive bylaw was passed are typically able to continue to keep pets in their units, as their right to do so is “grandfathered in” under the newly amended bylaws.

When an owner has a documented medical or psychological need for a pet (e.g. for visually impaired persons or those benefitting from a companion animal), such an owner may challenge a strata bylaw preventing or restricting pets in units by filing a complaint at the Human Rights Tribunal.

Renting out your unit

Although many strata corporations impose rental prohibitions or restrictions, the Strata Property Act sets out certain exceptions that enable owners to rent out their units despite restrictions or prohibitions in the strata’s bylaws.

The most common exceptions are when an owner rents out the unit to a close family member (e.g. a child, parent, or spouse of the owner), and when an owner can prove that being prevented from renting out the unit will cause the owner hardship. Sometimes none of the exceptions will apply. However, strata still needs to have a legally enforceable bylaw in order to impose rental prohibitions or restrictions on owners.

A lawyer can help you understand what your rights are, what your bylaws require, and what options you have in dealing with problems that arise when living in a strata property.

Human Rights Complaints

A person who suspects that discrimination was involved in the treatment received in a range of everyday interactions with others may find that the BC Human Rights Code applies to his or her situation. 

The BC Human Rights Tribunal hears human rights complaints from persons who believe they have experienced discrimination by an employer, an organization, a landlord or a service provider.  If discrimination is proven, the Tribunal can award compensation for injury to dignity and self-respect, wage loss, lost opportunity or other lost benefit.  It can order reinstatement of a job.  The Tribunal can make awards of any amount.  Awards for injury to dignity range from $3000 to $50,000.

Persons who experience discrimination in the following areas may make a claim. 

Publications; accommodation, a service or facility; the purchase of property; tenancy premises; employment advertisements; wages; employment; unions and associations.

Claim requirements

There are three requirements for a successful human rights claim.

  1. The person must have a characteristic that is protected by the Code. That means one of the following characteristics. Some characteristics do not apply in all cases.

Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, conviction for a criminal or summary conviction offence and lawful source of income.

  1. The person experienced an adverse impact with respect to a characteristic protected by the Code.
  2. The complainant proves that the protected characteristic was a factor in the negative treatment.   

Complainants can provide proof by direct evidence or by inference.  Direct evidence can be oral testimony at a hearing.   There can be valid grounds for dismissal of an employee, but if even a small part of the reason for dismissal is based on discrimination, the application of the BC Human Rights Code can be proven.  Corroboration of oral testimony adds to the weight of evidence. 

Proof by inference is harder to establish.  It is a logical conclusion drawn from the evidence.  Proof cannot be based on mere speculation and belief.  For cases involving indigenous clients, submissions on systematic racism are now widely accepted as relevant on this point.

The employer’s intention not to discriminate does not matter to the Tribunal.  It is the effect of the discrimination that is examined by the Tribunal.

Defences

There are a number of defences.

  1. In an employment situation, the employee needs to have notified the employer of the need for accommodation. Failure to do this can result in the employer being excused.  This excuse will not be valid if the employee is missing a lot of work, and the employer fails to enquire.
  2. Occupational requirement. Certain occupations require the exclusion of some persons.  For example, a fireman may need to be able to lift a person out of a burning building.  This will exclude some persons with physical disabilities.
  3. Undue hardship. For smaller businesses, such as mom-and-pop stores, the Human Rights Tribunal can accept that they do not have the resources to accommodate the individual. It may not be possible for the employer to accommodate a wheelchair.
  4. Frustration. A respondent can argue that frustration of contract applies.  This means that neither party caused the lack of accommodation.  For example, the parties may have experienced an unforeseen situation or event for which they made no previous provision.  The situation cannot be self induced or the fault of either party.  It must create a radical change in the nature of the contractual obligations.

There is a one-year limitation period from the date of the discriminatory act to file a claim.  

The complaint process. 

The process starts with the party alleging discrimination filing a complaint and setting out the details of the discrimination.  The Human Rights Tribunal will examine the complaint to see if the alleged discrimination is with respect to one of the protected characteristics.

If the complaint proceeds, the respondent must file a complaint response form.  The parties can choose mediation in advance of a hearing.  Mediation must be approached cautiously.  If successful, mediation could shorten the process.  However, if there is no settlement, the parties will have wasted a lot of time and expense, because the mediation process requires that the mediator listen at length to the witness evidence.  This time-consuming exercise will have to be repeated for the eventual hearing.

Varying a Will

Varying a will

What can I do if I am left out of a will?

It may come as a surprise, or it may be anticipated, that a will-maker would leave nothing to a spouse or children.

The law in British Columbia allows a disinherited party to challenge a will on the basis of fairness. 

The legislation that provides the legal basis for a challenge has been in place since 1920.  At that time, the Wills Variation Act was passed after pressure from women’s organisations.  It was at a time when men held most of the property.  It was considered to be one of the links in the Government’s chain of social welfare legislation.  It was to prevent those left behind from becoming a charge on the state. 

Today the protections for disinherited spouses and children are contained in the Wills Estates and Succession Act.  Other relatives are not entitled to this protection.

There are two interests which are protected by the Act.  One is to provide adequate, just and equitable provision for the spouses and children of will-makers.  The other interest is to protect testamentary autonomy.  This means that the will-maker’s wishes are to be respected, except if it can be shown that a spouse and children did not receive an “adequate, just and equitable” share of the family wealth. 

The Act did not remove the right of the legal owner of property to dispose of it upon death.  Rather, it limited that right. 

In a legal challenge to a will on the grounds that it does not make adequate provision for the proper maintenance and support of the will-makers spouse or children, the court may order a provision that it thinks adequate, just and equitable out of the will-maker’s estate.

Sometimes a will-maker will give clear reasons in the will why a spouse or child is getting little or nothing.  This is taken into account by the court.  In a challenge to the will, the accuracy of the statements in the will about a person can be disputed with evidence to the contrary.

The Act specifically allows the court to refuse to make an order in favour of a person whose character and conduct disentitles the person to receive relief.   

 

The court has the ability to order lump sum payments, periodic payments, transfers of property and to create a trust in a person’s favour. 

The court considers two types of obligations.  The first can be described as legal obligations.  These are obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise.  The second are moral obligations.  These are society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.  Legal obligations are given greater weight than moral obligations.

Despite the provisions of the Act, sometimes a will-maker can take additional steps to ensure that a spouse or child receives nothing.  The Act deals with assets that are in the deceased’s estate.  This means all of the property that belonged to the person at the time of death.  If assets never form part of the estate, the will does not operate with respect to those assets. 

If the will-maker put the family house in a joint tenancy with someone else, that property goes directly to the other person and does not become part of the estate.  If the will-maker set out beneficiaries in RESP, RRIF or cash investment accounts, the money goes to the beneficiaries without passing into the estate.  This strategy avoids probate fees for those assets.  It can be part of the will-maker’s overall tax planning arrangements.

The court has the power to make provision out of the will-maker’s estate but not the power to grab assets which passed directly to other people at the time of death.

Persons with significant wealth can arrange to have so little in the estate at the time of death that court approval of the will, called probate, is not required.  An estate of less than $30,000 does not need to be probated.

Where circumstances arise that leave a person out of a will, an investigation is necessary to determine the assets that make up the estate and to examine the will for specific language which might give reasons. 

Negligence and Causation

crumple zone

When thinking about suing a party for negligence, the starting point is a perception that a person did the wrong thing or failed to do the right thing, and that caused harm.

The law goes further in its analysis of the circumstances.  There are five elements to be considered.  If any one of the five elements is missing, the plaintiff cannot succeed.

  1. The first thing that must be shown is that there is a duty of care to the person who was harmed. Every person has an obligation to avoid acts which could be reasonably foreseen to injure or harm other people.
  2. The second element that must be proved is that there was a breach of a standard of care. This means determining what a reasonable person would do in the circumstances.  It could be a reasonable driver of a car or a reasonable similarly trained professional.
  3. The third element to be shown is that the party sustained damages. There is a monetary payment to compensate the injured party.  The term used to describe this is damages. 
  4. The fourth element is fairly straightforward. It is called cause in fact.  The question asked is, did the defendant’s negligence cause the injury?  What happened here?  The facts are examined to answer this question.  The test that is applied is the “but for” test.  Would the injury have occurred without the defendant’s negligence?  If yes, there would be no liability.  On the other hand, if the circumstances were that, but for the defendant’s negligence, the injury would not have occurred, then there would be liability. 

The English case of Barnett v. Chelsea and Kensington Hospital illustrates this issue.  Mr. Barnett felt sick after drinking tea.  He was suffering from arsenic poisoning.  He went to the hospital.  The hospital should have treated him.  It did not.  He was told to go home.  He died. There was a finding that the doctor was negligent.  He should have examined him.  However the court found that Barnett’s chances of survival were slim even if he had been given the antidote.  There was not enough time for it to have worked.  He would have died anyways.  There was no liability.  Mr. Barnett’s death was not caused by the lack of treatment.

  1. The fifth and final element is remoteness. Even if there is factual causation, a question remains as to whether there was legal causation.   Should the law attribute the damage to the breach of the standard of care?  It is possible that there was a chain of consequences from the original breach that was sufficiently complicated that it was not foreseeable that the breach would have caused the particular damage.  Damage which is too remote is not recoverable. 

The Supreme Court of Canada clarified the law on this point in the case of Mustapha v. Culligan of Canada.  In this case the plaintiff was a regular customer of Culligan’s bottled water.  One day he saw dead flies in the container of water.  He was revolted by this and went on to develop a major depressive disorder.  He did not drink the water.  The Supreme Court found that Culligan had a duty of care to Mr. Mustapha, that there was a breach of a standard of care, that the plaintiff sustained damages and that the defendant’s breach of its duty of care in fact caused Mr. Mustapha’s psychiatric injury.  The question remained as to whether there was legal causation.  Was the harm too unrelated to the wrongful conduct to hold the defendant fairly liable?

The court looked at issues of probability and the fortitude of the plaintiff. The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.  Unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.  Mr. Mustapha could not show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install.  His claim failed.

Each case must be analysed within the five point framework for determining liability.  The earlier this is done, the quicker a decision can be reached about whether a law suit is a suitable method of resolving the matter.

Subpoena to Debtor

British Columbia Practice book

The purpose of launching a claim in Supreme Court and proceeding to trial is to get a court order that the defendant must pay for the wrong alleged in the claim.

With a court order in hand there is more to do to get paid.  It is a step-by-step process.

A court order is a statement confirming an amount of money that a defendant has to pay.  It is also an order that he or she must pay that sum.  However, the court does not enforce its own orders.  That is up to the plaintiff.  If nothing is done the defendant can sit back without paying anything.

In the criminal law the state takes action to enforce each step.  In the civil law it is up to the parties themselves to be responsible for moving forward with each step.

The Subpoena to Debtor application is the enforcement process in the civil law.  It is an opportunity to find out what money and property the defendant has.  The defendant is obliged to answer questions and to produce documents.  If this process shows that there is money available, the registrar or judge can order the defendant to pay, either as a lump sum or monthly.

If the registrar or judge is not satisfied with the responses of the defendant, that person can sign an Examiner’s Report fixing a time and a place for the defendant to return to court before a Supreme Court justice.  At that hearing the justice can sentence the defendant to a jail term.  That can range from two to three weeks. 

This enforcement procedure provides an opportunity for the defendant to comply with the order to avoid going to jail. 

The procedure starts with the filing of a Subpoena to Debtor form in Supreme Court.  This form is then sent to the sheriff along with a personal information sheet and, if possible, a photograph, for the sheriff to serve the defendant. 

The Subpoena to Debtor form sets a date for the defendant to appear in court to be examined on oath with respect to income and property, debts owed, disposal of any property and the means by which the debtor can satisfy the order.

An Examiner’s Report can indicate that the defendant is in the wrong through failure to attend, refusal to be sworn or affirmed, refusal to produce a document or not giving answers that were to the satisfaction of the examiner.

At the appearance before a Supreme Court justice, it is advisable to have a sheriff in the courtroom.  If the defendant shows up and the justice orders the defendant to be committed to jail, the sheriff can place the defendant in handcuffs and lead him or her out of the courtroom. 

The justice signs an Order of Committal which sets out the number of days of imprisonment. If the defendant has not come to court, the court orders the sheriff to arrest the defendant, to bring him or her to the courthouse and then to take the defendant to a specified prison.