What Is Provincial Court, Civil Division?
Provincial Court, Civil Division is part of the provincial court system. It is designed to hear and to settle disputes involving small amounts of money. As of 2011, the maximum amount is $25,000. The procedure in Provincial Court, Civil Division is less formal than in other courts, and individuals often handle the case themselves rather than hiring a lawyer. Provincial Court, Civil Division is sometimes referred to as small claims court.
Civil court also hears applications for landlords and tenants under the Residential Tenancies Act and Mobile Home Sites Tenancies Act. The court can hear applications up to $25,000, subject to some restrictions
What Actions Can Be Brought to Provincial Court, Civil Division?
You may bring an action in small claims court for any amount of money; however, if you are trying to recover more than $25,000 you have to “waive” or give up your right to the amount above $25,000.
You may bring many different kinds of actions in provincial court, civil division, including an action for an unpaid loan, an action to recover a damage deposit, an action for non-payment of rent, or an action to recover damages arising out of a car accident.
In all courts in Alberta, including Provincial Court, Civil Division, you must sue within a specified period of time known as the limitation period. In general, the rule is that you must sue within two years from the time that the “damage” arose. For example, an action for damages arising from a car accident must be brought within two years from the date of the accident and an action for an unpaid debt must be brought within two years from the date when the debt was due or demanded.
However, limitation periods are not always straightforward and you should check with a lawyer or Legal Aid office to determine if the period of time in which you may sue has expired.
Before proceeding with an action, you should think about whether it is worth suing or not.
Some questions to ask yourself are:
- Do I have enough evidence to prove my case?
- Will the cost of suing be greater than the amount I am suing for?
- If my suit is successful, does the other party have the ability to pay the judgment (or is the other party insolvent or bankrupt)?
- If my suit is successful, will I have to take further action in order to collect the judgment, and what will that cost?
What Is the Procedure in Provincial Court, Civil Division?
To start an action, you must go to the Provincial Court, Civil Division to fill out a form called a civil claim. The clerk should be able to help you. You must know the proper identification of the person or people you are suing, i.e., is it an individual or a company you are suing? If you start the legal action, you are called the plaintiff on the claim. As the plaintiff, you should also know the addresses and phone numbers of both plaintiff and defendant(s). The claim must include the reasons why you are suing and the amount you are asking for. You must file the claim at Court, and then it must be served on the defendant(s). You can serve it by giving the claim to the defendant(s) in person or sending it by registered mail.
After the claim has been served, you must prove that it has been served. You do this by filling out the Affidavit of Service which is on the back of your copy of the claim. The Affidavit must be sworn by a Commissioner of Oaths and must be filed at the Provincial Court, Civil Division.
If the claim is properly filed and served and the defendant(s) do not issue a defence, you may be able to get judgment against them by going to court and presenting your side of the story and proving that the claim was served and there was no defence filed.
If a defence is filed, the Court will then contact both parties to set up a pre-trial conference if it seems like the claim could be resolved through mediation before trial. At a pre-trial conference, you will be able to meet with the defendant and a judge of the Civil Division of Provincial Court to attempt to resolve your dispute at an informal meeting.
If you are unable to resolve the issue at the pre-trial conference, or if you do not have a pre-trial conference, you will continue to trial. In preparation for going to trial, contact any witnesses and gather all evidence that will help prove your case; for example, a written contract, if there is one, cancelled cheques, receipts, accident reports, or estimates for repair work. The person you are suing, who is called the defendant, will also be able to present any evidence that will help her defence and bring witnesses. Both you and the defendant will have the chance to question your own witnesses and to cross-examine the other person’s witnesses, so you should prepare questions for the witnesses and arguments for your case.
Can I Claim Interest on Money Owing to Me?
If you get judgment for payment of money, the court can make an order that you are to be paid interest from the date that the debt arose to the date of the judgment. The interest rate is set every year by legislation. The court will have the right to refuse to order interest or to set the award for interest at a higher or lower rate than set by the legislature, if the court finds such variation to be proper in your particular situation.
Section 6 of the Judgment Interest Act allows you to seek interest on the amount of a judgment awarded by a court at interest rates set by the provincial government for each year that the debt or any part of it remains unpaid. In addition, if the contract stipulates that you will be paid interest at a certain rate (for example, on a loan or a debt) the Court can award that amount of interest.
Can I Appeal the Decision if I Lose the Action?
If you lose the action, you may appeal the decision to the Court of Queen’s Bench. You may have to hire a lawyer at this stage and it could be expensive. There are time limits for starting an appeal. You must file a Notice of Appeal with the clerk at the Provincial Court office within thirty days from the day that judgment was given and serve it on the other party. You must also pay $100 security for costs. Contact your lawyer or Legal Aid Clinic for more information.
If you win your suit but the defendant will not pay, take the Certificate of Judgment to the Clerk of the Court of Queen’s Bench. The Certificate will be filed as a Queen’s Bench Judgment. You may proceed to collect on the Judgment by garnisheeing the debtor’s wages or by obtaining a writ of execution which allows a sheriff to seize and sell some of the debtor’s property.
Both of these procedures may be time consuming and you must know how the debtor is employed or where the assets you wish to seize are located.
Where Can I Get More Information?
There are several Law Information Centres in Alberta; staff at these centres can help you understand the process and give tips to help you along the way. They will not provide legal advice or tell you what to write in a claim or form, but they will help you learn about general court procedures, locate and explain court forms, and learn about legal advice options. They can also explain the steps to take in making a legal application and refer you to legal and other resources in the community (see Legal and Community resources for contact information).