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The Court of Queen's Bench Small Claims Practices Act
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C.C.S.M. c. C285

The Court of Queen's Bench Small Claims Practices Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1(1)        In this Act

"claimant" means a person filing a claim in the court under this Act; (« demandeur »)

"court officer" means the registrar, a deputy registrar or an assistant deputy registrar of the court; (« auxiliaire de la justice »)

"defendant" means a person against whom a claim is made in the court under this Act; (« défendeur »)

"document" includes a statement filed under section 6, and a subpoena. (« document »)

Interpretation

1(2)        Except where the context otherwise requires and subject to subsection (1), words and expressions used in this Act have the same meaning as they have in The Queen's Bench Act.

Object and purpose

1(3)        The object and purpose of this Act is to provide for the determination of claims in a simple manner as expeditious, informal and inexpensive as possible commensurate with the matters at issue in each claim.

Claims dealt with in summary manner

1(4)        A claim may be dealt with in a summary manner and the rules of the court, other than rules specifically applicable to claims under this Act, do not apply and the judge or court officer hearing the claim may conduct the hearing in such manner as the judge or court officer considers appropriate in the circumstances of the case to effect an expeditious and inexpensive determination of the claim.

S.M. 1988-89, c. 10, s. 2 and 3; S.M. 1991-92, c. 11, s. 2.

Authority for claim under Act

2           Only judges and court officers have authority with respect to claims under this Act.

Jurisdiction

3(1)        A person may file a claim under this Act

(a) for an amount of money not exceeding $10,000. which may include general damages in an amount not exceeding $2,000.; or

(b) for an assessment of liability arising from a motor vehicle accident in which the vehicle of the claimant is not damaged.

Exception

3(2)        Subsection (1) does not apply to an action or proceeding within the exclusive authority of the Director of Residential Tenancies or the Residential Tenancies Commission under The Residential Tenancies Act.

Pre-judgment interest not included

3(3)        A claim for interest under Part XIV of The Court of Queen's Bench Act is not, for purposes of clause (1)(a), part of an amount of money claimed under this Act.

Excluded proceedings

3(4)        This Act does not apply to a proceeding that involves or is likely to require determination of questions relating to

(a) the ownership of real property or an interest in real property;

(b) the interpretation or enforcement of a testamentary disposition;

(c) the administration of a trust or an estate;

(d) a matter appropriate to a family proceeding as defined in section 41 of The Court of Queen's Bench Act;

(e) an allegation of malicious prosecution, false imprisonment or defamation; or

(f) an allegation of wrongdoing by a judge or justice.

S.M. 1988-89, c. 10, s. 4; S.M. 1989-90, c. 90, s. 7; S.M. 1990-91, c. 11, s. 202; S.M. 1991-92, c. 11, s. 3; S.M. 1993, c. 48, s. 8; S.M. 1999, c. 22, s. 1; S.M. 2005, c. 8, s. 11;  S.M. 2006, c. 36, s. 2.

Counterclaim of less than $10,000.

4           Where in a claim dealt with under this Act, a party makes a counterclaim against the claimant for an amount not exceeding $10,000. which is not joined with a counterclaim for any other remedy, the counterclaim may be dealt with in the court as provided in this Act and the rules of court applicable to actions and proceedings under this Act.

S.M. 1988-89, c. 10, s. 4; S.M. 1991-92, c. 11, s. 4; S.M. 1999, c. 22, s. 1; S.M. 2006, c. 36, s. 3.

Counterclaim exceeding $10,000.

5(1)        Where a claim is being proceeded with under this Act and a party to the claim makes a counterclaim for an amount exceeding $10,000. or which is joined with a counterclaim for any other remedy, and the party declines to abandon the excess of the counterclaim or the other remedy, as the case may be, the judge or court officer before whom the counterclaim is made shall adjourn the hearing of the claim for at least 30 days and order the party making the counterclaim to commence an action in the court to enforce the counterclaim.

Notice of action to enforce counterclaim

5(2)        A party who makes a counterclaim under subsection (1) and who, in accordance with an order under that subsection, commences an action in the court to enforce the counterclaim, shall, at least five days before the date fixed for hearing under subsection (1), provide the judge or court officer who made the order under subsection (1) with a copy of the statement of claim or other initiating process commencing the action in the court and certified to be a true copy by a proper officer of the court and in that case the claim or matter that was adjourned shall be deemed to be discontinued.

S.M. 1988-89, c. 10, s. 4; S.M. 1991-92, c. 11, s. 5; S.M. 1999, c. 22, s. 1; S.M. 2006, c. 36, s. 4.

Claim commenced by simple statement

6(1)        A person making a claim under this Act, or another person acting on behalf of a person making a claim, shall, in accordance with the rules of the court specifically applicable to a claim under this Act, file at an administrative centre of the court a simple statement signed by or on behalf of the person making the claim and setting out the particulars of the claim including the amount of the claim and shall serve a copy of the statement upon each defendant against whom the claim is made.

Extra copies of statement to be filed

6(2)        A person filing a statement under subsection (1) shall provide to the court officer as many copies of the statement as shall be sufficient to have one copy on file, one copy for each defendant against whom the claim is made and one copy to be returned to the claimant.

Limitation on service

6(3)        A statement filed under subsection (1) shall be served not later than 30 days after the date on which the statement was filed unless the time is extended on application by an order of a court officer.

No interlocutory proceedings

6(4)        No interlocutory proceedings shall be taken.

S.M. 1988-89, c. 10, s. 5.1; S.M. 1991-92, c. 11, s. 6.

7           Repealed.

S.M. 1988-89, c. 10, s. 6.

Fixing hearing date

8(1)        Upon the filing of a statement under subsection 6(1), the court officer shall fix a date for the hearing and disposition of the claim and endorse on the statement that date and the address of the location in which the claim will be heard and the address of the office in which the statement was filed.

Hearing date

8(2)        The date set for hearing under subsection (1) shall be not more than 60 days after the date on which the statement was filed under subsection 6(1) or within such further time as a judge or court officer deems proper.

S.M. 1991-92, c. 11, s. 7.

Hearing

9(1)        On the date set for hearing under subsection 8(1) or subsection 9(3), a judge or court officer shall

(a) hear and determine the claim, including any counterclaim or set-off; or

(b) adjourn the claim.

Third party proceedings

9(2)        Where it appears to a judge or court officer at a hearing of a claim, that a party against whom a claim or counterclaim is made may be entitled to contribution or indemnity from a person not a party to the claim, the judge or court officer may direct that the party serve upon the other person an order as hereinafter mentioned.

Contents of order

9(3)        The order referred to in subsection (2) shall

(a) be signed by the judge or court officer;

(b) contain a simple statement of the nature of relief sought by way of contribution or indemnity;

(c) be accompanied by a copy of the statement filed under section 6 including the endorsement of the address of the office in which the statement was filed;

(d) set out the hearing date; and

(e) Repealed, S.M. 1988-89, c. 10, s. 8.

9(4) to (6) Repealed, S.M. 1988-89, c. 10, s. 9.

S.M. 1988-89, c. 10, s. 7 to 9; S.M. 1991-92, c. 11, s. 8; S.M. 2008, c. 42, s. 17.

Evidence under oath

10(1)       Witnesses in a hearing under this Act shall give evidence under oath or affirmation, and the judge or court officer presiding at the hearing may administer the oath or affirmation.

Further service required

10(2)       Where a person whose attendance as a witness is required and upon whom a subpoena is served otherwise than by personal service does not appear as required by the subpoena, the person shall not be arrested for failure to appear and no proceeding shall be taken to enforce attendance of the person or to punish the person for contempt of court or otherwise unless a further subpoena requiring the person to appear is personally served on the person and the person fails to comply with the subpoena.

Where rules of evidence not followed

10(3)       A decision of a judge or court officer under this Act shall not be set aside solely because the rules of evidence have not been followed at any hearing in the proceeding related to the decision.

S.M. 1991-92, c. 11, s. 9.

Failure of defendant to appear

11(1)       Where a defendant, or someone on behalf of a defendant, does not appear at the time and place fixed for the hearing of a claim, a judge or court officer may allow the claimant to prove service of the statement, give default judgment against the defendant and dismiss any counterclaim made by the defendant.

Declaration of partners

11(2)       Where a partnership is a party to a proceeding under this Act, any person appearing at a hearing for the partnership or for any member of the partnership shall declare the names and addresses of all the partners in the partnership and that information shall be entered on the statement by the judge or court officer.

S.M. 1988-89, c. 10, s. 10; S.M. 1991-92, c. 11, s. 10.

Decision is a judgment of the court

12(1)       Subject to subsections (2) and (3), the decision of a court officer under subsection 9(1) or 11(1) or section 20, when filed in the court office, is a judgment of the court.

Appeal to a judge where party appears

12(2)       Where a decision under subsection 9(1) or 11(1) or section 20 is made by a court officer, a party who is aggrieved by the decision and who appeared at the hearing of the claim may appeal the decision to a judge.

Leave required by party not appearing

12(3)       Where a decision under subsection 9(1) or 11(1) or section 20 is made by a court officer, a party who is aggrieved by the decision and who did not appear at the hearing of the claim may not appeal the decision unless leave to appeal is first obtained from a judge.

12(3.1)     Repealed, S.M. 1991-92, c. 11, s. 11.

Thirty days to launch appeals

12(4)       Not later than the 30th day after the filing of a decision under subsection 9(1) or 11(1) or section 20 or within such further time as a judge may by order allow, a party intending to appeal under subsection (2) or (3) shall, in accordance with the rules of the court specifically applicable to a claim under this Act, file at the administrative or judicial centre of the court where the claim was heard a notice of appeal with, where applicable, an application for leave to appeal and shall, in accordance with the rules of the court, serve each respondent party with a copy of the notice of appeal and, where applicable, the application for leave.

Conduct of appeals

12(5)       An appeal under subsection (2) or (3) shall be a new trial and shall be dealt with in a summary manner and unless otherwise ordered by the judge on application of a party to the appeal, the rules of the court, other than rules specifically applicable to claims under this Act, do not apply.

Stay of proceedings on appeal

12(6)       Where, under subsection (2) or (3), a party appeals a decision of a court officer, all proceedings to enforce that decision are stayed as of the time the notice of appeal and, where applicable, the application for leave is filed.

S.M. 1988-89, c. 10, s. 11; S.M. 1989-90, c. 90, s. 7; S.M. 1991-92, c. 11, s. 11; S.M. 2004, c. 42, s. 22; S.M. 2008, c. 42, s. 17.

Decision final except on question of law

13          Subject to section 15,

(a) a decision of a judge under subsection 9(1), 11(1) or 20(2);

(b) a decision of a judge on an appeal under section 12;

is final and may be enforced as a judgment of the court.

S.M. 1988-89, c. 10, s. 12; S.M. 1989-90, c. 90, s. 7.

Costs and disbursements

14(1)       A judge or court officer hearing a claim may award the successful party an amount

(a) for costs, excluding disbursements, as the judge or court officer considers appropriate and not exceeding, except in exceptional circumstances, $100.;

(b) for disbursements that are reasonably incurred for purposes of the claim.

Costs on appeal

14(2)        The party who is successful on an appeal taken under section 12 may be awarded costs as the court may allow.

S.M. 1991-92, c. 11, s. 12.

Appeal to Court of Appeal

15          A party who is aggrieved by the decision of a judge may, with leave of a judge of the Court of Appeal, appeal the decision to the Court of Appeal on a question of law only.

S.M. 1991-92, c. 11, s. 13.

Separation of certain claims

16          Where a claim for damage to a motor vehicle arising out of a traffic accident is proceeded with under this Act and no claim is made in the same proceeding in respect of

(a) damage to other property arising out of the traffic accident; or

(b) personal injury of any person injured in the traffic accident; or

(c) the death of any person arising out of the traffic accident;

a decision under this Act in respect of the damage to the motor vehicle does not bind or affect the court or any other court in respect of liability for or the amount of

(d) damage to other property arising out of the traffic accident; or

(e) damages for personal injury of any person injured in the traffic accident; or

(f) loss or damage attributable to the death of any person arising out of the traffic accident.

17          Repealed.

S.M. 1988-89, c. 10, s. 13.

Foreign claimants

18          Where it appears that a person who seeks to file a claim under this Act is a person who is habitually resident outside Manitoba, the court officer shall not accept the claim for filing unless the person provides security for costs in such amount as may be prescribed in the rules.

S.M. 1988-89, c. 10, s. 14.

Withdrawal of claim

19(1)       A claimant may withdraw a claim at any time before the date set for the hearing of the claim, in which case the claimant shall pay the defendant such necessary disbursements as are incurred by the defendant in respect of the claim.

Consent to judgment on counterclaim

19(2)       A claimant may consent to judgment for the defendant on a counterclaim made by the defendant in which case the defendant is entitled to an allowance for costs and disbursements as provided in subsection 14(1).

Defendant may consent to judgment

19(3)       A defendant may consent to judgment for the claimant, in which case the claimant is entitled to an allowance and disbursements as provided in subsection 14(1).

S.M. 1991-92, c. 11, s. 14.

Failure of claimant to appear

20(1)       Where the claimant fails to appear at the time and place fixed for the hearing of a claim, the claim may be dismissed or the hearing adjourned at the discretion of the judge or court officer presiding at the hearing.

Consideration of counterclaim

20(2)       Where a claimant's claim is dismissed under subsection (1), and the defendant has made a counterclaim permissible under this Act, the judge or court officer may allow the defendant to prove service of the counterclaim and give default judgment against the claimant.

S.M. 1988-89, c. 10, s. 15; S.M. 1991-92, c. 11, s. 15.

Manner of service

21(1)       A document required to be served upon a person in a proceeding under this Act may be served

(a) by actually delivering it to the person required to be served; or

(b) by handing it to and leaving it with a grown person at the residence of the person required to be served; or

(c) by mailing it by prepaid registered mail enclosed in a package addressed to the person required to be served at the last known or usual place of abode of the person.

Substitutional service

21(2)       Where a person is unable to effect service of a document upon a person under subsection (1), substitutional service thereof may be made in such manner as a judge or court officer may direct.

Date of service by registered mail

21(3)       Where service of a document is made by registered mail under clause (1)(c) the document shall be presumed, unless the contrary is proved, to have been served and received on the date of receipt confirmed by Canada Post Corporation.

Service on a corporation

21(4)       Service of a document on a corporation required to be served in a proceeding under this Act may be validly made by serving an officer or director of the corporation in the manner described in this section, at the place where the corporation carries on its business.

Service on partners

21(5)       Service of a document on a partnership required to be served in a proceeding under this Act may be validly made upon the partnership if the document indicates that it relates to the partnership by using the name under which the partnership carries on business and it is served on any member of the partnership in the manner described in this section, and thereupon it shall be conclusively deemed to have been served upon all the members of the partnership.

S.M. 1991-92, c. 11, s. 16; S.M. 2000, c. 35, s. 5.

Proof of service

22          Proof of service of any document under this Act may be given

(a) by oral evidence given under oath; or

(b) by means of an affidavit by a person having personal knowledge of the facts deposed to.

S.M. 1991-92, c. 11, s. 17.

Certificate of decision in default cases

23(1)       Where a default judgment is given under subsection 11(1) or 20(2), the court shall, within seven days of the decision, send a certificate of decision by ordinary mail to the person against whom the default judgment was given.

Form of certificate

23(2)       The certificate of decision referred to in subsection (1) shall be in the form prescribed by the rules.

S.M. 1988-89, c. 10, s. 16; S.M. 1989-90, c. 90, s. 7.