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as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, 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:
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; (" officier du tribunal")
"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, a notice of objection and statement of defence filed under section 7 or subsection 9(4) and a subpoena. ("document")
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.
Only judges and court officers have authority with respect to claims under this Act.
Notwithstanding The Queen's Bench Act or the rules of court not specifically applicable to actions and proceedings under this Act, any matter which consists solely of a claim for an amount of money not exceeding $3,000. 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.
Counterclaim of less than $3,000.
Where in any matter dealt with under this Act, a party makes a counterclaim against the claimant for an amount not exceeding $3,000. 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.
Counterclaim exceeding $3,000.
Where a claim or matter is being proceeded with under this Act and a party to the claim or matter makes a counterclaim for an amount exceeding $3,000. 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.
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.
Action commenced by simple statement.
A person making a claim under this Act, or some person on his behalf, shall file in the office of the court in an administrative centre a simple statement in writing prepared and signed by him or some person on his behalf of the particulars of the claim including the amount thereof and a copy of the statement shall be served upon every defendant against whom the claim is made.
Extra copies of statement to be filed.
A person filing a statement 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.
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.
Filing of objection and defence.
Upon the service of a statement filed under section & upon a defendant against whom the claim is made, the defendant, if he does not agree to have the matter disposed of summarily, shall, within 16 days after the service or within such further time as a judge may on application, by order allow, file in the same office of the court as the statement was filed a notice of objection and statement of defence and serve a copy thereof on the claimant, and where the defendant fails to file and serve a notice of objection and statement of defence as required, he shall be deemed to have consented to the summary disposition of the matter under this Act.
Upon the filing of a statement under subsection 6(1), the court officer shall fix a date for the hearing and disposition of the matter and endorse on the statement that date and the address of the location in which the matter will be heard and the address of the office in which the statement was filed.
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.
Where a notice of objection and statement of defence to a claim has not been filed under section 7, and the matter is set down for hearing, the matter, including any counterclaim or set-off, shall, subject to section 5, be heard and determined in a summary manner by a judge or court officer.
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 proceedings before the judge or court officer, the judge or court officer may direct that the party serve upon the other person an order as hereinafter mentioned.
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) inform the person from whom indemnity or contribution is sought of the provisions of subsection (4).
Filing notice of objection and statement of defence.
Upon a person being served with an order under subsection (2), the person from whom contribution or indemnity is sought, if he does not agree to have the question of his liability and the extent thereof disposed of summarily under this Act, shall, within 16 days after the date of service or within such further time as a judge on application may by order allow,
(a) file in the same office of the court as the statement initiating the action was filed a notice of objection and statement of defence; and
(b) serve a copy thereof on the parties to the proceedings;
and where he fails to file and serve a notice of objection and statement of defence as required under this subsection, he shall be deemed to have consented to being added as a party to the proceedings under this Act and to the disposition of the question of his liability in the extent thereof summarily under this Act.
Where no notice of objection, etc. filed.
Where no notice of objection and statement of defence is filed under subsection (4) by a person from whom a contribution or indemnity is sought, the question of his liability and extent thereof to any other party shall form part of the matter to be heard and determined by the judge or court officer under subsection (1).
Where notice of objection, etc. filed.
Where a notice of objection and statement of defence is filed under subsection (4), the original claim, if no notice of objection and statement of defence thereto has been filed under subsection 8(1), shall be dealt with summarily under this Act and the question of the liability of the third party shall be settled or determined otherwise than under this Act.
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.
Where a person whose attendance as a witness is required and upon whom a subpoena is served otherwise than by way of personal service does not appear as required by the subpoena, he shall not be arrested for his failure to appear and no proceeding shall be taken to enforce his attendance or to punish him for contempt of court or otherwise unless a further subpoena requiring him to appear is served on him in person, and he fails to comply therewith.
Where rules of evidence not followed.
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.
Failure of defendant to appear.
Where the defendant, or someone on his behalf, does not appear at the time and place fixed for the hearing of an action under this Act the judge or court officer may
(a) adjourn the hearing to another time and place; or
(b) allow the claimant to prove service of the statement and deal with the claim of the claimant in the absence of the defendant and give such decision as he considers fit and proper, and dismiss any counterclaim made by the defendant.
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.
Decision a judgment of the court.
Subject to subsection (2), the decision of a court officer under subsection 9(1) or section 11, when filed in the court office is a judgment of the court.
Where a decision under subsection 9(1) or section 11 was made by a court officer, any party aggrieved by the decision may, within 30 days after the signing of the decision, or within such further time as a judge may by order allow, appeal from the decision to a judge of the court.
An appeal under subsection (2) shall be by a way of a new trial and shall be launched by filing a simple notice of appeal and subject to subsection (4) the action shall thereafter be conducted in accordance with the rules of the court which are not applicable to actions and proceedings under this Act, except that no transcript of the evidence given at the initial hearing is required to be filed.
Stay of proceedings on appeal.
Where, under subsection (2), 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 is filed.
Decision final except on question of law.
Subject to section 15,
(a) a decision of a judge under subsection 9(1) or section 11; or
(b) a decision of a judge on an appeal under section 12;
is final and may be enforced as a judgment of the court.
A party who is successful in a matter determined by a judge or court officer may be allowed
(a) an allowance for costs excluding necessary disbursements in an amount not exceeding 10% of the amount of the judgment where he is the claimant or 10% of the amount of the claim where he is defendant; and
(b) disbursements not exceeding 20% of the amount of the judgment or claim, as the case may be.
The party who is successful on an appeal taken under section 12 may be awarded costs as the court may allow.
A decision of a judge under this Act may be appealed to the Court of Appeal on a question of law only.
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.
Hearing when objection and defence filed.
Where a notice of objection and statement of defence is filed under section 7, the matter shall be heard and determined by a judge and the provisions of this Act, except this section, do not apply to the matter.
Statement not to be invalidated.
Where an action is tried under subsection (1) or by way of appeal under section 12,
(a) the statement filed under section 6 shall be deemed to be a statement of claim in the court and shall not be deemed invalid for informality or failure to comply with the rules of pleading of the court applicable to actions and proceedings not under this Act; and
(b) the defendant shall not be prejudiced in any way because of failure to file a statement of defence to the claim but the action shall proceed as though the defendant had filed a statement of defence denying every allegation made in the statement of the claimant.
Where a party to an action under this Act objects to summary disposition of the matter and the matter is tried pursuant to subsection 17(1), the party shall, at the time of filing the notice of objection and statement of defence under section 7 pay into court security for costs in such amount as may be prescribed in the rules.
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.
Where any claim which might be dealt with summarily under this Act is dealt with otherwise than under this Act, the party responsible for the claim being dealt with otherwise than under this Act shall
(a) if unsuccessful, be required to pay the other party's costs in the matter in accordance with the costs usually awarded in the court in actions not dealt with under this Act; and
(b) if successful, be limited to the costs to which he would be entitled if the claim had been dealt with under this Act.
A claimant may withdraw his claim at any time before the date set for the hearing thereof, in which case he shall pay the defendant such necessary disbursements as may have been incurred by the defendant in the matter.
Consent to judgment on counterclaim.
A claimant may consent to judgment for the defendant on a counterclaim made by the defendant on which case the defendant is entitled to an allowance for costs and disbursements as provided in subsection 14(1).
Defendant may consent to judgment
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).
Failure of claimant to appear.
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.
Where a claimant's claim is dismissed under subsection (1), judgment in favour of the defendant on any counterclaim made by the defendant may be given upon proof of the counterclaim by the defendant.
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 his last known or usual place of abode and accompanied by an official "acknowledgement of receipt" form.
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.
Where service of a document is made by registered mail under clause (l)(c) the document shall be presumed, unless the contrary is proved, to have been served and received on the date of receipt thereof as shown on the " acknowledgement of receipt" form signed by the person acknowledging receipt thereof.
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 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.
Proof of service of any process 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.