Keep it Simple: The Highlights of Simplified Procedure and the New Small Claims Regime
October 7, 2011
By Leanne Murray, Partner at McInnes Cooper,
Shivani Chopra, former lawyer at McInnes Cooper
The Province of New Brunswick recognized the need for individuals and small- to medium-sized businesses to reduce the cost of litigation by creating and updating two processes intended to make civil litigation faster and cheaper: Rule 79, for claims up to $75,000, and Rule 80 for claims up to $30,000.
In September 2006, the Province of New Brunswick created Rule 79 to make civil litigation faster and cheaper for individuals and small- to medium-sized businesses. Rule 79 is an option for claimants with relatively small claim amounts who wish to pursue relief through the courts without the additional steps – and related time and cost – required in the regular process.
You can now use Rule 79 for claims including debts and interests in real property or interests in personal property that involve $75,000 or less. You cannot use it for family law matters. If your claim exceeds the $75,000 threshold, you can still use Rule 79, but only if you give up your claim to the excess amount. If a party starts an action under the normal process, the party can choose to switch it to Rule 79, but only by amending the claim to less than $75,000. Similarly, a party can convert an action started under Rule 79 to a normal process by amending the claim to exceed $75,000.
Rule 79 is intended to speed the process because it eliminates some steps and imposes tight deadlines:
• There is no oral “discovery” (ie., questioning under oath before the trial). Each party provides an Affidavit of Documents listing all relevant documents and the names of witnesses, and the parties exchange affidavits of witnesses or experts outlining the evidence related to the claim and which are to be relied upon at trial, rather than oral testimony before the Court;
• Informal settlement discussions are mandatory, and must be held within five (5) months of commencing the claim; a formal settlement conference can be held before a Judge by agreement of the parties;
• Trials should be held within seven (7) to eight (8) months from the commencement of the claim; because no witnesses are called at the trial, the length of the trial is much shorter;
• The successful party will receive costs.
You should strongly consider retaining legal counsel to ensure comprehensive and proper affidavits of witnesses or experts are prepared, because this is the only way evidence is put before the Court under Rule 79.
Until recently, Small Claims Court adjudicators heard and ruled on all actions for debt or damages (or a combination of the two) and recovery of personal property up to the value of $6,000. On July 15, 2010, the Province of New Brunswick abolished its Small Claims Courts and transferred these claims to the Court of Queen’s Bench under the newly introduced Rule 80. In addition, the Province substantially increased the claim amount from $6,000 to $30,000.
Individuals or small- to medium-sized businesses can now bring claims of $30,000 or less under Rule 80. However, Rule 80 does not apply to family law matters, matters involving title to, or interest in, lands, wills and estates entitlement matters, or claims for libel, slander, malicious arrest, malicious prosecution or false imprisonment. If a party’s claim is more than $30,000, Rule 80 is available if the party gives up the part of the claim over $30,000.
While Rule 80 is more formal than the previous small claims procedure, it is less complicated than a regular process. This should allow litigation to move faster, and thus cost less, making Rule 80 a valuable tool for claimants with claims of less than $30,000.
And what makes this significant – under a Rule 80 action, the losing party no longer has the right of a new trial. Instead, the only “appeal” is to seek permission from the Court of Appeal, and this option is only available where the issue is a “legal” one. Since there is no guaranteed “second chance”, it is very important to have proper legal advice at the outset of pursuing or defending the claim.
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