Court Decisions

Collecting on a Judgment

Court orders
Sometimes when the trial is over and you have your court order there is still more to do in order to get your money or what the judge decided you were entitled to. The Ministry of Attorney General has prepared a guide to help you called Getting Results.

The order needs to be put in writing and then filed with the court before you can take any steps to enforce or collect on the order. The court does not collect the money for you but the judge can set a schedule of payments. Once filed, an order expires after 10 years. For best results, action should be taken right away; however there is no guarantee that the debtor will pay.

Options for the creditor
There are some options available to help you collect on the order. They include:

  • A payment hearing. This gives you a chance to find out all the debtor’s financial details, such as his or her address, bank accounts, property owned (including cars or land), employment, income and expenses. A debtor can also ask for this hearing to make changes in the order if he or she is having trouble paying. The court registry will give you information and help you to set up a payment hearing. To learn more, read The Law Centre Factsheet: Payment Hearings.
  • Garnishment of wages or bank accounts. This is a way of getting money that is owed to the debtor before it is paid to the debtor. There are strict rules to comply with in order to get a garnishment order. You have to repeat the procedure for each new pay period as you can only garnish up to 30% of wages or salary at one time. There is no limit on the amount you can garnish from a bank account. The garnishing order is served on the garnishee, which is a third party that owes the debtor wages or a bank that holds the debtor’s money. If you are garnishing wages, you must know the correct legal name of the employer, the address and the pay date. The date on which the affidavit is sworn must be within seven days before the pay date. If you are garnishing a bank account, you have to know the branch where the debtor banks, so that you can serve the garnishing order at that branch. Garnished money goes directly to the court. Once the court receives the funds you will have to ask the court to pay the money out to you and serve notice on the debtor that you are doing so. The usual practice is to serve the garnishee first and then serve the debtor if money is paid into court. The entire procedure needs to be repeated each time you wish to garnish a debtor’s pay cheque or bank account. To learn more, read The Law Centre Factsheet: Garnishing Orders.
  • Seizure and sale of goods by the court bailiff. If the money owed by the debtor has not been paid, you can ask the court bailiff to take personal possessions belonging to the debtor and sell them at public auction. This can be an expensive procedure so make sure you know all the rules around exemptions and that the debtor has property worth taking. The most common items seized are motor vehicles and shares in a company. To learn more, read The Law Centre Factsheet: Seizing Assets.
  • A default hearing occurs if there is already a payment schedule in effect which the debtor is not following. The judge will ask the debtor why the payments were not made and may adjust the order or put the debtor in jail for up to 20 days if the judge feels that the debtor is showing contempt for the court order. The debtor will still owe the money. If the debtor does not attend this default hearing he or she can be arrested if he or she has been properly notified. To learn more, read The Law Centre Factsheet: Default Hearings.
  • Registration against land. Your judgment can be registered against the title of land owned by the debtor. This can be the most effective option as it will affect the owner’s ability to sell or mortgage his or her land. You need to renew the registration every two years and before the previous registration expires.

To learn more about your options for collecting on judgement, the Ministry of Attorney General has published a procedural guide called Getting Results. You can also read The Law Centre Factsheet: Overview of Collection Procedures. In addition, the BC branch of the Canadian Bar Association has published audio and text scripts called “Getting Your Judgments Paid”. This website lists the Court Forms you may use for enforcement of judgements.
 

Appealing an order made in Small Claims Court

What is an appeal?
If you have been to Small Claims Court but do not agree with the judge’s decision, you may want to appeal it. You can only appeal a decision from the Provincial Court if it is an order made after a trial. An appeal takes place in the Supreme Court of British Columbia.

An appeal is not a re-trial but a review of the original trial using its transcripts and your Statement of Argument. No new evidence may be presented without leave of the court.

Appeals from an order of the Small Claims Court are governed by sections 5 to 15 of the Small Claims Act, Supreme Court Rule 49 and the standard set of directions for Small Claims Court appeals issued by the Chief Justice.

What happens at the hearing?
The hearing is a review of the original trial and you must be prepared to explain why you feel the Small Claims Court judge erred in interpreting the facts entered as evidence or applying the law to your case. This is done using the transcript and your Statement of Argument.

If you are successful in your appeal, the Supreme Court justice may allow you to recover your costs as part of the judgment. If these costs exceed the $200 you previously paid as a deposit (see the required fees and deposits below), you will be required to set an appointment before the Registrar to have these costs assessed.

If the respondent does not pay the judgment, you must prepare the Supreme Court order and file it with the registry for entry. After the order is entered, you may file a copy in your Small Claims Court file at the Provincial Court for enforcement.

If your appeal is unsuccessful, you cannot appeal an order made by the Supreme Court.

What happens to the enforcement of the original Small Claims order while I am appealing?
Any proceedings to enforce the order in Small Claims Court are suspended until the appeal is dealt with, but you first must provide proof that you have started the appeal process.

Do I need a lawyer to make an appeal?
No, but it is recommended that you seek legal advice if you are thinking about appealing. Supreme Court is formal and complex; because of this litigants are expected to be aware of the law and of legal procedures. Litigation in Supreme Court is costly. Further costs may be awarded against the unsuccessful party pursuant to Appendix B of the Rules of Court. These costs can be considerable. Also registry staff are not able to give you legal advice.

In the event of any conflict between this information and any acts, rules or law, the provision of the acts, rules or law apply.

How do I file an appeal?
You will need to:

  • Complete the Notice of Appeal and file it in the Supreme Court registry nearest to the Small Claims Court where the decision was made.
  • File the Notice of Appeal within 40 days from the date the decision was made in Small Claims Court.
  • Pay the required fees and deposits to the court which include:
    • $208 to initiate a Supreme Court proceeding, plus
    • A $200 deposit as security for costs that the court may order you to pay if you lose or discontinue the appeal. Note that there may be additional costs awarded against you if you lose or discontinue the appeal. Refer to Rule 57 and Appendix B of the Supreme Court Rules
    • The amount of the judgment ordered by the Small Claims Court if the order being appealed required you to pay a sum of money.

If you are unable to deposit the security for costs or the amount of judgment, you may apply to the Supreme Court for an order to reduce these amounts. If you are unable to pay the filing fee or any fees payable to the Crown pertaining to the appeal, you may apply to the court for an indigent status order. Request the appropriate form from the Supreme Court Registry. Note that indigent status does not cover the cost of transcripts as these fees are payable to private contractors.

On the day you file your Notice of Appeal you must file a copy of that document in the Small Claims Court registry.

What notices do I have to serve? When? How?
You must serve the following:

Any order reducing the amount of security for costs or the amount of judgment as stated above must be served personally on each party affected by the appeal.

Service must be made within seven days after filing the Notice of Appeal. Refer to Supreme Court Rule 4 for the process for serving a document. You can use the Serving Documents Checklist to ensure you serve your documents correctly.

You may serve these documents yourself or have someone else do so for you (for a list of process servers refer to the Yellow Pages under “Process Servers”).

After serving the documents, an affidavit of service providing proof of service of the above stated documents must be filed in the Supreme Court registry within 14 days of the appeal being filed.

How do I order transcripts?
You must order and pay for the entire transcript of the evidence and the reasons for judgment given at your Small Claims trial. Registry staff in the Small Claims Court can provide information about ordering the transcript and the transcription contractor will advise about the cost.

You must furnish proof of ordering the transcript within 14 days of filing your appeal. This proof should be filed in the Supreme Court registry.

How do I set a hearing date?
At the same time that you file proof of service of the Notice of Appeal and proof of ordering the transcript, you must file a Notice of Hearing of Appeal in Form 75 of the Supreme Court Rules.

If your time estimate for the appeal is less than 2 hours, the Notice of Hearing of Appeal may be scheduled on the Chambers list and the filing fee will be $62. If your time estimate is more than 2 hours you must arrange for a date through the Supreme Court trial coordinator and file the Notice of Hearing of Appeal and your filing fee of $208. Check with your local registry to confirm these details and follow what they tell you.

Deliver a copy of the Notice of Hearing of Appeal to all respondents who have entered an appearance within seven days of filing that notice.

When do I need to file my Statement of Argument and the transcripts?
Use Form “A” which is attached to the Standard Directions for your Statement of Argument and serve one copy on each respondent within 45 days of filing the Notice of Appeal.

Within 45 days after filing the Notice of Appeal you must file the original transcript and serve one copy on each respondent.

To learn more, read the Justice Education Society’s Supreme Court Guidebook titled Appealing Small Claims Court Judgments.