In our example from last week, assume that Lace has been successful and was awarded damages in the amount of $110,000. In addition, Lace was also awarded court costs.
As a general rule, the party who is successful in a civil action is awarded court costs. The costs are set out in the rules of court and are also subject to the judge’s discretion. In most cases, the costs awarded will not cover all of Lace’s costs in pursuing the case. However, in most provinces in those rare instances when there is a civil jury, the costs must be borne by the party asking for a jury even if that party was successful.
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After judgment, Janis could pay the damages awarded and that would end the matter. Alternatively, Janis might feel or its lawyer might advise that the judge was wrong in awarding damages. Janis would have the right to appeal to the appeal court in its province. Usually, there is a 30-day deadline to start an appeal. This would start with the filing of a notice of appeal. Before the appeal was actually heard, both sides would have to file detailed appeal books, including summaries of the relevant case law.
Appeal courts do not rehear the case. They do not listen to witnesses. Rather, appeal courts are solely concerned with interpreting the law. The questions they will consider are whether the trial judge misinterpreted previous case law or statutes and whether the facts of the case support the judge’s conclusion.
As at trial level, the appeal court may dismiss the case with an oral judgment after hearing the case. Most often however, the court will take time to consider the case and deliver a written judgment at a later date. As a general rule, costs will be awarded to the victor. Appeal hearings will be heard by at least three judges.
Assume that the court has upheld the decision against Janis (in a 2-1 split). Janis is still unhappy with the judgment. The final court is the Supreme Court of Canada. However, there is no automatic right, except in certain serious criminal matters, to be heard by that court. One must ask the court for permission to be heard. That application is considered by a panel of three judges.
In order to receive permission, Janis will have to convince the panel that its case is either of national importance or that there are legal issues that will be important to many other cases. As with provincial courts of appeal, the Supreme Court does not hear evidence, rather it focuses on interpreting the law.
Janis asks for leave but is refused. That is the end of the process.
If Janis doesn’t pay the judgment, Lace would have to rely on writs of execution, which allow goods and land to be seized, or garnishee orders which seize funds from bank accounts.
In the last two columns, I have outlined what might happen in a hypothetical lawsuit. However, while many lawsuits are started, few actually go to trial and even fewer are appealed. According to the Canadian Bar Association, less than three percent of lawsuits actually end up at trial. Many are discontinued or settled before they reach trial. At any stage of the process Lace and Janis can reach an agreement to end the dispute.
The steps I am outlining are those followed in a major lawsuit, rather than small claims court. The limit on small claims varies between $5,000 and $10,000 depending on the province you live in.
In small claims the procedure begins by issuing a statement of claim.
In many instances, assistance in preparing this can be obtained from court officials. After the claim has been issued and served, the matter proceeds to trial. The whole idea of small claims is to run a court that is simple to use and where claims can be handled without requiring a lawyer.
