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Small Claims “Cheat Sheet” Part III: Trial Procedure and Witnesses

Richard B. Johnson

Co-Founder + Partner
December 13, 2021

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 December 13, 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 the trial process of the Provincial Court Small Claims branch.

If you are looking for information with respect to other aspects of the Small Claims process, refer to our articles on Initiating and Responding to a Claim and Settlement and Trial Conferences!

Trial Procedure

A trial can be a daunting process especially if you do not have any experience with the legal system. It is important to remember that the Small Claims branch is intended to be used by self-represented litigants. If you take the time to adequately prepare your claim, you will be ready to present your case when your matter proceeds to trial.

 

Here is a general guide for the trial process: 

 

1.      The parties make brief opening statements, explaining the facts of the claim they are trying to prove;

2.      The Claimant and any witnesses they put forward testify and are cross-examined by the Defendant;

3.      The Defendant and any witnesses the Defendant puts forward provide testimony and are cross-examined by the Claimant; and

4.      Both parties are provided a final opportunity to summarize their case.

The Judge may provide a decision at the end of your trial or may reserve judgment, and provide  reasons for their decision at a later date. Once a judgment has been received, the matter is deemed to be resolved subject to any right of appeal.

 

Note: Courts are open to the public. If you would like to get a better understanding of the process prior to your trial, you are able to attend your local court registry and observe other trials.

Preparing for Trial

By the time your matter proceeds to trial, you will have attended both a settlement and trial management conference, and should have some idea of the prospect of success of the claim. You should also have a number of your documents organized. It is important to review your documents and ensure you have a clear understanding of the evidence you want to present.
(See our cheat sheet on Settlement and Trial Conferences for more information on the evidence that should have been exchanged up to this point).

 

Note: you are required to bring three copies (and the original) of the documents to your trial. This is to ensure you have copies for yourself, the other party, and the Judge.


Document Disclosure and Organization

By the time your matter progresses to trial, you will have filed and served your Trial Statement on all other parties. Your Trial Statement should include all documents you intend to rely on throughout the trial process. In order for documents to be introduced for the first time at a trial (that is, documents that have not been included in your Trial Statement), it must be introduced by a witness who can speak to its relevancy and credibility.

 

Any letters, affidavits, or statements of any kind are not permitted to be introduced to as evidence, unless it is an affidavit or statement of an opposing party. It is also important to ensure that unless agreement has been reached by the parties prior to the trial, all documents to be disclosed are provided in their original format if possible.

 

At the settlement conference, all parties will have been provided with document disclosure deadlines. The Judge will have set out the documents required to be exchanged and the timeframe in which to do so. If any party fails to comply with the deadlines set out in the settlement conference, there is a risk of delaying the trial, not being permitted to submit your evidence, or being responsible for the expenses of a missed trial.

 

Trial Tip:  You should not keep any document secret until trial as a “smoking gun”. If you do, the Judge may not allow it to be admitted after disclosure deadlines have passed.

 

As previously mentioned, much of your evidence will have been included in your Trial Statement already. However, it is important to ensure that prior to attending your trial, you have prepared:

1.      A statement of events using numbered paragraphs to show the order in which they occurred;

2.      A list of your witnesses and a summary of what they will say;

3.      Any details of the monetary value of your claim;

4.      Documents and photographs that you intend to use as evidence;

5.      Any expert reports you may have had prepared; and

6.      Any legal research you have conducted.

 

Where possible, parties should try to prepare their documents in accordance with the below points:

1.      Documents to be provided by you in a typed format;

2.      Documents to be collated into a binder with an index page and numbered dividers between each document; and

3.      You should bring enough identical binders for the Judge, yourself, and any other parties that will be present at the trial.

 

Rescheduling Trial

In order to adjourn the trial to another date, you must make an application to the court. This application must be served upon all other parties seven (7) days prior to asking the judge. If you apply to postpone a trial more than thirty (30) days before a trial, there will not be fees associated with doing so. If you apply after this timeframe, you will be required to pay a fee within fourteen (14) days of the adjournment.

Courtroom Etiquette

There are particular rules of etiquette when attending a trial that it is important to be aware of which include:

·         Addressing the Judge as “Your Honour”;

·         Standing when the Judge enters or leaves the courtroom;

·         Standing whenever you are speaking to the Judge or the Judge is speaking to you; and

·         Standing while questioning any witnesses.

Depending on the individual preferences of a Judge, they may direct you to remain seated while giving your evidence.

Appeal

If you are unhappy with the Judge’s decisions, you may have grounds to appeal. Your appeal will need to be filed within forty (40) days of the date of the Judge’s decision.

Witnesses

The witnesses that will be called at trial should have already been disclosed in the Trial Statements of both parties, as well as what those witnesses will be testifying. It is important to note that all witnesses must have personal knowledge of the facts, and they are not relying on information provided to them second hand. For example, a witness should not testify to the fact that their friend told them that a blue car was involved in a car accident. This would be known as hearsay evidence, which is not admissible except in particular circumstances.

The evidence provided by your witness is known as “testimony”. This will be provided orally in the court. Letters or affidavits from individuals who are not called to give testimony are generally not permitted. As the Claimant or Defendant in a matter, you are also considered a witness.

Most witnesses will agree to attend court voluntarily, however if you intend to call a witness who refuses to attend, you may serve them with a Summons to a Witness. This form must be served upon the relevant witness at least seven (7) days before the trial date. You must also provide the witness with an offer of reasonable estimated travel expenses. If your trial is in Vancouver and your witness is to attend from Vancouver Island, you may offer to pay the costs of their travel and potential accommodation. A witness that is served with a Summons is required by law to attend the trial. If they fail to do so, there can be serious ramifications such as a warrant for their arrest.

In order to best prepare for witness testimony, you should prepare questions that will be relevant to prove your case. The questions you ask of your witnesses should not be “leading” questions – meaning that you should not your witness if the car they saw was blue, for example. Instead, you could ask “what colour was the car?”

While you will want your witnesses to be prepared and know the areas that you will be asking them about at trial, it is important that you do not tell them what they should stay. It is important for your witnesses to be aware of this fact and that they expected to tell the truth regardless of whether it helps or hurts your case.

Note: All witnesses (including the Claimant and Defendant) will be under oath to provide truthful answers and may face penalties if found to have been dishonest in their testimony.

            Expert Witnesses

Expert witnesses are able to provide their opinion on a matter without the need to have direct, personal knowledge of the facts. When you feel an expert witness is necessary, you will be required to provide all opposing parties with a summary of the expert’s opinion at least thirty (30) days prior to the trial.

If an expert witness is called, the other parties must be prepared to cross-examine this expert or obtain their own expert witness. If you are cross-examining a party’s expert, be sure to review the summary of their opinion and formulate questions in response prior to the trial. The earlier you are able to begin preparing your questions, the easier it will be for you to determine what information is necessary to prove your case.

Non-English Speakers

If you require assistance with translation at 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.

Trial Checklist

This process may seem a little overwhelming, but it is important to be aware that the judge at your settlement conference will have already provided all parties will a relevant list of things to do and documents to exchange prior to the trial. The judge at the settlement conference will have also briefly discussed the trial process as a whole.

In order to further assist you to best prepare for your trial, the checklist below outlines some relevant information and steps it is relevant to consider:

1.      Review the Notice of Claim, the Reply, and all other documents that have been filed in your matter;

2.      Write a brief summary of the main points in the above documents. This will be for your records only.

3.      From that summary, note any points that you will need to prove to win the case.

4.      Create a plan for how you feel best able to prove each of these points and gather the relevant documents.

5.      Write out any questions you intend to ask your witnesses.

6.      Contact any witnesses you intend to call and go over the issues that you plan to ask them about at trial. Again, make sure that you are not telling the witnesses what to say – they need to tell the truth at all times!

7.      Obtain any expert reports (if necessary).

8.      Review any documents and witness statements provided to you by other parties.

9.      Prepare a list of potential questions to ask witnesses upon cross-examination.

10.  Prepare for your final argument where you summarize your case and why the judge should find in your favour.

 

It is important to remember to give yourself plenty of breathing space on your trial date. Be sure to arrive early and have all your documents arranged in a coherent, readable fashion. If you have reviewed the facts of your matter and prepared for your trial in accordance with the directions given to you by the settlement conference judge, you will be in a much better position to present your case.

 

Further helpful resources can also be found here:

·         Small Claims BC

·         Small Claims ‘How to’

·         The Law Centre

Keep an eye out for our next Small Claims “Cheat sheet” on payment hearings.

If you are involved in a small claims matter and find yourself struggling with this process, please reach out to our lawyers at Ascent Employment Law for guidance – we are here to help!