Small Claims Court – Filing a Notice of Withdrawal by Mistake

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.