There are three levels of Courts in British Columbia; Provincial Court, Supreme Court, and the Court of Appeal.  Each Court plays a different role in our legal system. For example, provincial Court is set up to adjudicate smaller claims of value up to $35,000.00. Whereas, Supreme Court is generally for claims above $35,000.00 in value. Supreme Court is also where Provincial Court decisions are appealed. The Court of Appeal is specifically for appealing the decisions of the Supreme Court.

It is important to consider the level of Court when considering the type of remedy or solution that would work best within your specific circumstances, as only the Supreme Court can provide certain orders. For example, in order to stop a party from causing further damage to your property, it may be best to ask the Court for injunctive relief, and order, meaning that the Court will order a party to stop from performing a certain action. However, only the Supreme Court has the jurisdiction to offer injunctive relief, as Provincial Small Claims does not have the inherent jurisdiction required to make these orders.

Section 3(1) of the Small Claims Act [RSBC 1996] Chapter 430 outlines the specific orders that the Small Claims Court is able to make:

3  (1) The Provincial Court has jurisdiction in a claim for

(a) debt or damages,
(b) recovery of personal property,
(c) specific performance of an agreement relating to personal property or services, or
(d) relief from opposing claims to personal property

if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs.

The inability of the Provincial Court to grant an injunction or make a declaratory order was confirmed in Bi et al. v. City of Surrey, 2017 BCPC 386. The Court in Bi et al also confirmed that the Provincial Court does not have the authority to grant damages in lieu of an injunction or a declaratory order. This means that the type of interim orders that the Provincial Court can grant differs greatly from the Supreme Court.

To avoid wasted time and costs, it is important to consider the type of order, and by extension the level of Court that is best for your circumstances.

A Court action is started in Small Claims Court when the Plaintiff files a Notice of Claim with the Court Registry. When a Small Claim Court action is concluded by settlement, the Plaintiff will file a Notice of Withdrawal. When a Notice of Withdrawal is filed, it stops the action and any associated Court processes. However, if this document was filed by mistake, is it possible to make a Court application to allow you to continue with the Court action?

Small Claims Court, unlike the Supreme Court, only has the ability to provide orders explicitly allowed in the Small Claims Court Rules. Upon review of the Rules, it is not clear where the Court would get ability to reinstate an action after a Notice of Withdrawal has been filed.

Rule 8(4) of the Small Claims Court Rules states:

Withdrawal of claim or other filed document

(4)A party may withdraw a claim, counterclaim, reply or third party notice at any time by

 (a) filing a copy of the notice of withdrawal at the registry, and

 (b) promptly serving the notice on all the parties who were served with the claim, counterclaim, reply or third party notice.

Nothing in this rule would allow a Judge in Provincial Court to reinstate a claim after a Notice of Withdrawal has been filed. This rule only discusses the withdrawal of a “claim, counterclaim, reply, or third party notice”. Accordingly, there is a question as to whether the Provincial Court has the ability to reinstate an action once a Notice of Withdrawal is filed.

However, the Courts have determined that they do have the ability to withdraw a Notice of Withdrawal in the proper circumstances. In Pacific Centre Ltd. V. Micro Base Development et al, 49 BCLR (2d) 218, 43 CPC (2d) 203 the Court determined that it is within the Small Claim’s Court’s own jurisdiction to address this procedure. The Court in Wilson & ANJ Corp. v. Regoci & Global Securities, 2009 BCPC 170 cited Pacific Centre Ltd. and noted the need for a good reason to allow the withdrawal of the Notice of Withdrawal. Generally this reason appears to focus on a genuine mistake made on behalf of one of the parties. The Court in Wilson found that “in the absence of the establishment of any reason for the filing the notice of discontinuance, such as inadvertence, mistake or misapprehension, or of ‘other grounds’ which would be of a compelling nature, the discretion should not be exercised to set aside a notice of discontinuance” (Wilson, para 7). That is, it is not enough for the appellant to merely have a change of heart (Wilson, para 7).

It appears that a Court will recognize a true mistake when allowing Plaintiffs to continue with a Court action. However, given the need to prove a mistake (or something similar), it is necessary to be careful when filing a Notice of Withdrawal.