Richard B. Johnson
By Richard Johnson with contribution and research by Paralegal, Jade Harvey
Please note: This article is intended as information and not legal advice. The information in this article is current as of the date of first publication on November 24, 2021, and is subject to change at any time with legislative and procedural amendments, etc. Please inquire with the Provincial Court to ensure that this information remains valid at the time of your matter.
Finally, if you have questions about your matter, we recommend you seek legal advice about your case.
This article is intended to provide guidance for self-represented litigants engaged in settlement and trial processes through the Provincial Court of British Columbia Small Claims division.
If you are looking for information with respect to starting or responding to Small Claims actions, please refer to our Cheat Sheet on Initiating and Responding to Claims here.
A settlement conference is mandatory for all Provincial Court matters (with the exception of motor vehicle accident claims). If you fail to attend, the other parties may seek an Order against you. This Order could dismiss your claim, or order you to pay the full amount of the damages claimed.
The purpose of a settlement conference is to allow parties to explore the possibility of settlement with assistance of the court. If settlement cannot be achieved, the settlement conference also will help to assist parties to prepare for trial.
Outside of COVID circumstances, conferences are generally heard in a meeting room at the courthouse and generally last for approximately 30 – 60 minutes. During this time, both parties will explain their side of the situation and an attempt will be made to find facts upon which the parties can agree with a view to finding common ground to resolve the dispute(s).
It is important to be sure that you are prepared to settle at the settlement conference. Whilst an agreement may not be reached, the parties need to act in good faith at the settlement conference and cannot deliberately thwart settlement.
The settlement conference Judge has numerous abilities, including but not limited to:
· Order a party to produce documents;
· Dismiss a claim/counterclaim/Reply if they determine it to not have reasonable grounds;
· Set a trial date and discuss trial procedure; and
· Make Orders with respect to settlement.
At the conclusion of the conference, the Judge may provide a non-binding assessment of a party’s chance to succeed at trial.
Note: Discussions had at a settlement conference cannot be used at trial. Also, the Judge that presided over the settlement conference will not preside over your trial.
Preparing for Settlement Conference
Prior to the settlement conference, you will receive a notification from the Court with the date and time of the conference. This notification will also provide instructions on how to provide documents to the Court.
The best way to prepare for a settlement conference is to think about how you would prepare for and present your case at trial but with a view to finding possibilities that would resolve the case. Ask yourself some of the following questions:
· What are the relevant issues?
· What facts are in dispute? What do I need to prove?
· How will I prove these facts? What evidence will I use?
· What facts do both parties agree on?
· How can we potentially resolve some or all of the issues with the need for a trial?
Having these answers written down will helpful when trying to present your argument to the Judge, and will be useful should your matter proceed to trial.
It is important to ensure you bring all documents you intend to rely on at trial to a settlement conference. Do your best to consider each document and determine whether it is needed to prove your case. The settlement conference Judge will not be able to review voluminous documents, so it is important to keep your summary brief and on-point at the settlement conference. Also remember that this is not the time to “argue your case”; that is what trial is for.
Consider what settlement options you may be open to. It is important to have a clear idea of the outcome you desire, your chances of success at trial, and any other goals you may want to achieve. Proceeding to trial can be a costly and time intensive process, which is an important factor to consider when discussing settlement.
It is useful to remember that the Claimant is required to prove liability (that the Defendant did something legally wrong). The Claimant is also required to prove the amount of damages sought and why this amount is appropriate. This could be providing receipts for repairs, or showing the medical impacts of a Defendant’s actions, for example.
If you are the Defendant, you are required to show a reason why you are not legally responsible for the things that the Claimant alleges, and/or that the Claimant did not suffer any damages.
Note: a settlement conference is not a trial. The settlement conference assists to determine the risks of going to trial and make attempts to resolve a matter before said trial. This is not the time to argue your case or try to convince the Judge or the other side that you are right.
The Small Claims BC website provides a Settlement Conference Checklist as a helpful guide to preparing for your conference.
Changing the Date
If for any reason, you cannot attend the settlement conference date, it is your responsibility to notify both the Court and any other parties at least seven (7) days prior to the conference. You may still be required to attend on the original date, if the Registrar does not accept your reason for rescheduling.
If a matter does not settle at the settlement conference, it may proceed to a Trial Conference. If the estimated time of your trial is longer than one day, you will be required to attend this conference. Similar to the settlement conference, a trial conference runs for approximately 30 minutes.
The Judge at a trial conference will review the claim and decide upon an appropriate length of time for conducting the trial. The Judge at a trial conference is able to make the same judgments as the settlement conference Judge (listed above). However, a trial conference Judge is also able to:
· Make payment orders;
· Order a Claimant to attend a medical appointment and serve the doctor’s report on the Defendant at least seven (7) days prior to the trial;
· Make Orders with respect to time restrictions on the length of trial; or
· Order the parties to attend mediation.
Overall, a trial conference follows a similar process to the settlement conference except that the trial conference is really to ensure that the case is ready to go to trial (instead of focusing on settlement).
Preparing for a Trial Conference
Prior to a trial conference, the Court will send a notice showing the time and date of the conference, along with a Trial Statement for you to complete.
The purpose of a Trial Statement is to provide a clear and concise summary of your case. The Statement must be filed with the Court at least fourteen (14) days before the trial and served upon any opposing parties at least seven (7) days before the trial.
Your Trial Statement should have the following attachments:
1. A statement of facts, outlining your case in chronological order;
2. A calculation of the amount claimed (or, in the case of the Defendant, the amount you would be willing to pay);
3. Copies of the relevant documents discussed under ‘Settlement Conference’ above;
4. A list of the witnesses you plan to call at trial; and
5. A brief summary of what each witness will testify.
Note: Both the Claimant and the Defendant must complete a Trial Statement.
If a trial conference is ordered, all parties must attend or risk orders being made against them.
Changing the Date
If you need to change the trial conference date, the first step is to get the consent of all other parties in writing. If all parties agree to change the date, you may file a Consent Order signed by all parties with the Court.
If parties are unable to agree on this change, you may file an Application to the Registrar outlining why you need to change the date and the steps you took to seek consent from all other parties. You will be require to prove that the current date is unreasonably inconvenient (the definition for this can be found in Rule 7.5(7)).
Note: You must make an Application to change the date at least seven (7) days prior to the conference. If you make your Application after this date, it will be rejected unless you can properly show why the Application could not be made within the specified timeframe.
If you require assistance with translation at your settlement conference (or your trial), you are required to pay for and provide your own interpreter. You may have a family member do this, however it is highly recommended that you hire an interpreter with experience in court. You may seek reimbursement of these fees at a later point, but you will be required to pay all upfront fees.
Interpreters can be found through the Society of Translators and Interpreters of BC website.
Further helpful resources can also be found here:
If you are involved in a claim in the Provincial Court and find yourself struggling with this process, please reach out to our lawyers at Ascent Employment Law for guidance. It is important that you are fully aware of the Court processes in order to give yourself the best chance of success.
Keep an eye out for our next “Cheat Sheet” on trial procedure!