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The Court of Queen's Bench Small Claims Practices Act
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This version is current as of December 1, 2016.
It has been in effect since November 5, 2015.

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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" means the Court of Queen's Bench of Manitoba; (« tribunal »)

"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 claim filed under section 6, and a subpoena; (« document »)

"small claims rules" means the rules of the court specifically applicable to claims under this Act. (« règles des petites créances »)

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 Court of 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 the small claims rules, 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; S.M. 2014, c. 30, s. 2.

Authority for claim under Act

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

Court officer to hear claims

2.1(1)      Subject to subsection (2), a claim under this Act must be heard and decided by a court officer.

When claim heard by judge

2.1(2)      A claim under this Act must be heard and decided by a judge if

(a) not yet proclaimed;

(b) a person or entity specified in the regulations is a party to the claim; or

(c) a court officer directs that, in the interest of the administration of justice, the claim be heard and decided by a judge.

S.M. 2014, c. 30, s. 3.

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.

Counterclaims not exceeding $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 small claims rules.

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; S.M. 2014, c. 30, s. 4.

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.

COMMENCING A CLAIM

Commencing a claim

6(1)        A person making a claim under this Act must, in accordance with the small claims rules, file a claim at an administrative centre of the court in the form required by the small claims rules. The claim must be signed by the person making the claim and set out the particulars of the claim.

Extra copies of claim to be filed

6(2)        A person filing a claim under subsection (1) shall provide to the court officer as many copies of the claim 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.

Service of claim

6(2.1)      The claimant must serve a copy of the claim upon each defendant against whom the claim is made.

Limitation on service

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

6(4)        [Repealed] S.M. 2014, c. 30, s. 6.

S.M. 1988-89, c. 10, s. 5.1; S.M. 1991-92, c. 11, s. 6; S.M. 2014, c. 30, s. 6.

7           [Repealed]

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

Hearing date

8(1)        Upon the filing of a claim under subsection 6(1), the court officer must

(a) set a date for the hearing of the claim; and

(b) set out on the claim form the hearing date and the place where the claim will be heard.

8(2)        [Repealed] S.M. 2014, c. 30, s. 7.

S.M. 1991-92, c. 11, s. 7; S.M. 2014, c. 30, s. 7.

PROCEDURE FOR CLAIMS

Authorized agent for a party

8.1         Subject to The Legal Profession Act, another person may act on behalf of a party to a proceeding under this Act.

S.M. 2014, c. 30, s. 8.

Adjournments

8.2         A judge or court officer may adjourn a claim or other proceeding under this Act to another date.

S.M. 2014, c. 30, s. 8.

Interlocutory proceedings

8.3         Except as provided for in this Act, no interlocutory proceedings shall be taken.

S.M. 2014, c. 30, s. 8.

Admissible evidence

8.4(1)      In a hearing under this Act, a judge or court officer may admit as evidence anything that the judge or court officer considers relevant to an issue, whether or not it would be admissible under the laws of evidence.

Exception

8.4(2)      A judge or court officer may not admit anything under subsection (1) that is subject to solicitor-client privilege or privileged under the laws of evidence.

S.M. 2014, c. 30, s. 8.

Evidence of witnesses

8.5         Witnesses in a hearing under this Act must give evidence under oath or affirmation, and the judge or court officer presiding at the hearing may administer the oath or affirmation.

S.M. 2014, c. 30, s. 8.

Declaration of partners

8.6         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 must declare the names and addresses of all the partners in the partnership, and that information must be entered on the claim by the judge or court officer.

S.M. 2014, c. 30, s. 8.

Third party proceedings

8.7(1)      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 who is not a party to the claim, the judge or court officer may direct that the party serve upon the other person an order referred to in subsection (2).

Contents of order

8.7(2)      The order must

(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 claim filed under section 6; and

(d) set out the hearing date.

S.M. 2014, c. 30, s. 8.

Evidence at the hearing

8.8(1)      At a hearing under this Act the evidence must be recorded in accordance with The Manitoba Evidence Act.

If evidence not recorded

8.8(2)      If, for any reason, the evidence at a hearing cannot be recorded,

(a) a summary of the evidence must be prepared by the judge or court officer who presided at the hearing; and

(b) a copy of the summary must be given to each of the parties, on request.

S.M. 2014, c. 30, s. 8.

Further service required

8.9         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 must not be arrested for failure to appear and no proceeding must 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.

S.M. 2014, c. 30, s. 8.

DECISION ON CLAIM

Decision on claim

9(1)        After hearing the evidence and submissions, the judge or court officer must decide the claim, including any counterclaim or set-off.

Decision if defendant does not appear at hearing

9(2)        If a defendant does not appear at the hearing of the claim, the judge or court officer must allow the claimant to prove service of the claim, and

(a) hear and decide the claim in the absence of the defendant; and

(b) dismiss any counterclaim made by the defendant.

Certificate of decision

9(3)        After a hearing under this section, the judge or court officer must

(a) issue a certificate of decision and a summary of the reasons for the decision; and

(b) provide a copy of the certificate of decision and the summary of reasons to each of the parties.

Judgment of the court

9(4)        A certificate of decision issued under this section is a judgment of the court and may be enforced as a judgment of the court.

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; S.M. 2012, c. 40, s. 16; S.M. 2014, c. 30, s. 9.

Correcting errors in a certificate of decision

10          A judge or court officer may, on his or her own initiative, or on the application of a party, correct errors in a certificate of decision under this Act that arise from a clerical error or omission.

S.M. 1991-92, c. 11, s. 9; S.M. 2014, c. 30, s. 9.

SETTING ASIDE DECISION IF DEFENDANT DID NOT APPEAR AT HEARING

Application to set aside decision made under subsection 9(2)

11(1)       A defendant who did not appear at the hearing of a claim may file an application, in the form required by the small claims rules, to have the decision made under subsection 9(2) set aside.

Filing an application

11(2)       The defendant must

(a) file the application at the administrative centre of the court where the claim was filed; and

(b) provide sufficient copies of the application to the court officer to have one copy on file and one copy for each party.

Hearing date

11(3)       Upon the filing of the application, the court officer must

(a) set a date for the hearing of the application; and

(b) set out the hearing date and the place where the application will be heard on the application form.

Serving the application

11(4)       The defendant must serve a copy of the application on each other party within 20 days after filing the application, unless the time is extended, on motion, by an order of a court officer.

Who hears the application

11(5)       An application to set aside a decision under subsection 9(2) must be heard and decided

(a) by a judge, if a judge made the decision; or

(b) by a court officer, if a court officer made the decision.

Setting aside the decision made under subsection 9(2)

11(6)       After a hearing, the judge or court officer may set aside the decision made under subsection 9(2) if he or she is satisfied that

(a) the defendant did not wilfully or deliberately fail to appear at the hearing;

(b) the defendant filed an application to set aside the decision under section 9 as soon as reasonably possible after obtaining knowledge of it, or gave an explanation for any delay in filing the application; and

(c) it is fair and just in the circumstances to allow the decision to be set aside.

Order and notice of hearing

11(7)       The judge or court officer must

(a) issue an order with respect to his or her decision under this section;

(b) if the decision under subsection 9(2) is set aside, set a date for a new hearing of the claim; and

(c) provide a copy of the order to each of the parties and, if applicable, a notice of the new hearing date.

Decision set aside is null and void

11(8)       A decision under subsection 9(2) that is set aside is null and void from the date of the decision to set it aside.

If decision not set aside

11(9)       If the judge or court officer does not set aside the decision made under subsection 9(2), that decision remains in effect and may be enforced as a judgment of the court.

No appeal

11(10)      The decision of a judge or court officer under this section is final and not subject to appeal.

S.M. 1988-89, c. 10, s. 10; S.M. 1991-92, c. 11, s. 10; S.M. 2014, c. 30, s. 9.

NEW HEARING IF DECISION SET ASIDE

New hearing of claim

11.1(1)     The new hearing of a claim may be heard before the same judge or court officer, as the case may be, who made the decision about the claim under subsection 9(2) or the decision to set it aside under section 11.

Certificate of decision

11.1(2)     After the new hearing, the judge or court officer must

(a) issue a certificate of decision and a summary of the reasons for the decision; and

(b) provide a copy of the certificate of decision and the summary of reasons to each of the parties.

Judgment of the court

11.1(3)     A certificate of decision issued under this section is a judgment of the court and may be enforced as a judgment of the court.

S.M. 2014, c. 30, s. 9.

APPEAL FROM DECISION OF COURT OFFICER TO JUDGE OF COURT OF QUEEN'S BENCH

Appeal with leave of a judge

12(1)       A party may appeal a decision made by a court officer under section 9 or 11.1 to a judge of the court on a question of law or jurisdiction, with leave of a judge.

Leave to appeal and notice of appeal filed

12(2)       Within 30 days after the certificate of decision under section 9 or 11.1 is filed in the court, the party who is appealing must file an application for leave to appeal and notice of appeal in the form required by the small claims rules, at the administrative centre of the court where the claim was filed.

Extending time for filing appeal

12(3)       A judge may extend the time for filing an application for leave to appeal and notice of appeal under subsection (2), on motion by the person appealing.

Appointment for hearing

12(4)       Upon the filing of the application for leave to appeal and notice of appeal, a court officer must

(a) set a date and place for the hearing of the application for leave to appeal and notice of appeal; and

(b) issue an appointment in the form required by the small claims rules with the details as to the date and place for the hearing.

Service

12(5)       The party appealing the decision must serve a copy of the application for leave to appeal and notice of appeal, as well as the appointment, on each other party within 20 days after filing the application, unless a judge, on motion by the party appealing, extends the time for service.

Stay if appeal taken

12(6)       Upon the filing of an application for leave to appeal and notice of appeal, all proceedings to enforce the decision made under section 9 or 11.1 are stayed as of the date the application is filed.

Stay continues

12(7)       The stay under subsection (6) continues in effect

(a) until the application for leave to appeal is dismissed; or

(b) if leave to appeal is granted, until further order of the court.

Judge to direct conduct of appeal

12(8)       If a judge grants leave to appeal, that judge must set the date and place for the hearing of the appeal and direct the parties as to the following matters with respect to the appeal:

(a) whether the appeal will be heard by oral argument or by a new hearing of the evidence;

(b) what written materials must be filed and served and the time periods for doing so;

(c) whether a transcript of the proceedings before the court officer will be required for the appeal.

Transcript may be limited

12(9)       If the judge determines that a transcript of the proceedings before the court officer is required, the judge may direct that the transcription be limited to that which is relevant to the appeal.

Decision on appeal

12(10)      The judge hearing the appeal may

(a) confirm the court officer's decision; or

(b) set aside the court officer's decision and make any decision that the court officer could have made;

and must give directions with respect to the stay, in accordance with clause (7)(b).

Certificate of decision

12(11)      After an appeal hearing, the judge must

(a) issue a certificate of decision; and

(b) provide a copy of the certificate of decision to each of the parties.

Judgment of the court

12(12)      A certificate of decision issued under this section is a judgment of the court and may be enforced as a judgment of the court.

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; S.M. 2014, c. 30, s. 9.

No appeal to Court of Appeal

13          A decision of a judge under section 12 is final and not subject to a further appeal.

S.M. 1988-89, c. 10, s. 12; S.M. 1989-90, c. 90, s. 7; S.M. 2014, c. 30, s. 9.

COSTS AND DISBURSEMENTS

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 FROM DECISION OF JUDGE TO COURT OF APPEAL

Appeal to Court of Appeal

15(1)       A party may appeal a decision made by a judge under section 9 or 11.1 to The Court of Appeal on a question of law or jurisdiction, with leave of a judge of that court.

Leave to appeal and notice of appeal

15(2)       Within 30 days after the certificate of decision under section 9 or 11.1 is filed in the Court of Queen's Bench, the party who is appealing must file an application for leave to appeal and notice of appeal with The Court of Appeal, in the form and manner required by the rules of that court.

Decision on appeal

15(3)       If leave to appeal is granted, The Court of Appeal may

(a) confirm the decision of the judge of the Court of Queen's Bench; or

(b) set aside the judge's decision and make any order that the judge of the Court of Queen's Bench could have made.

S.M. 1991-92, c. 11, s. 13; S.M. 2014, c. 30, s. 11.

GENERAL MATTERS

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 small claims rules.

S.M. 1988-89, c. 10, s. 14; S.M. 2014, c. 30, s. 13.

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)       If a claimant does not appear at the hearing of a claim, the judge or court officer may

(a) dismiss the claim without hearing any evidence; or

(b) adjourn the hearing to a specified date, on such terms and conditions as the judge or court officer may direct.

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 hear and decide the counterclaim.

Provisions applicable to counterclaims

20(3)       The provisions of this Act with respect to hearing and deciding a claim apply, with necessary changes, to hearing and deciding a counterclaim.

S.M. 1988-89, c. 10, s. 15; S.M. 1991-92, c. 11, s. 15; S.M. 2014, c. 30, s. 14.

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 person who appears to be at least 16 years old 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 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; S.M. 2014, c. 30, s. 15.

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.

23          [Repealed]

S.M. 1988-89, c. 10, s. 16; S.M. 1989-90, c. 90, s. 7; S.M. 2014, c. 30, s. 16.

Regulations

24          The Lieutenant Governor in Council may make regulations

(a) specifying persons or entities for the purpose of clause 2.1(2)(b);

(b) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the purpose of this Act.

S.M. 2014, c. 30, s. 17.