The Defendant in Small Claims Action


The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

 

This topic discusses your options as a Defendant in a Small Claims Court action. All of the information provided below is current as of August 5, 2020. You are the Defendant if you have been sued. In legal terms, you have been sued when you are served with a Civil Claim. The individual serving you with the Civil Claim, i.e. suing you, is known as the Plaintiff.

You have several options to respond to the Civil Claim: you can agree to pay the amount of the Civil Claim; you can try to negotiate a settlement with the Plaintiff; you can defend yourself by filing a Dispute Note, which may include a Counterclaim if you believe you are owed money; or you can ignore the Civil Claim.

If you want to pay the amount or negotiate a settlement of the Civil Claim

 If you agree about the amount of money you owe to the Plaintiff, you can pay that amount. If you know you owe money to the Plaintiff, but not as much as you are being sued for, you can try and negotiate a settlement. If you and the Plaintiff agree on an amount, but you are unable to pay the agreed upon amount all at once, you can try to arrange a repayment plan with the Plaintiff directly. You can ask the Court to help determine a payment plan by making an Application to a Judge. This will require you to disclose detailed financial information in support of your Application.

You have two options for payment of the amount claimed or the settlement amount. Your first option is to pay the Plaintiff directly. If you pay the Plaintiff directly, be sure to get a receipt that includes the date, the amount paid, and both your signature and the Plaintiff’s signature. Once the payment has cleared with the Plaintiff’s bank, a Notice of Withdrawal must be filed with the Court to end the Civil Claim.

Your second option is to pay the entire amount of the Civil Claim into the Court. If you pay money into the Court, the Court will send the Plaintiff a Notice of Payment. The Plaintiff has 30 days to file an Acceptance or Refusal of your payment into the Court. If the Plaintiff accepts, the Court sends the Plaintiff a cheque for the settlement amount and a Notice of Withdrawal to complete, which will end the Civil Claim. This process can take 4-5 weeks. If the Plaintiff refuses your payment into the Court, or fails to respond to the Notice of Payment, the money will be returned to you, and you will be notified of the next step in the Civil Claim process. The steps will be the same as if you filed a dispute note (See After filing your Dispute Note below). If the Plaintiff refuses your payment into the Court and is not awarded a sum greater than the amount you paid into Court, the Plaintiff may have to pay your costs incurred after you made the payment into Court.

If you want to dispute the Civil Claim

If you want to dispute the Civil Claim, you can defend yourself by filing a Dispute Note. You must provide all details of your side of the claim in the Dispute Note so that the Court knows your reasons for defending against the Civil Claim. The Dispute Note is a two-page form that is available at any Provincial Court Office or on the Provincial Court website.[1] The Dispute Note must be filed within 20 days from the date you were served within Alberta or 30 days from the date you were served outside of Alberta. The Dispute Note may be filed with any Provincial Court Office in Alberta, either in-person or by mail, but it is recommended that Dispute Notes be filed at the Court location identified on the Civil Claim. Once the Dispute Note is received by the Court, each party will receive a Notice setting out the next steps.

If you believe the Plaintiff owes you money, you can file a Counterclaim against the Plaintiff in your Dispute Note. There is an additional filing fee for a Dispute Note with a Counterclaim.

If you believe someone else is involved in the dispute between you and the Plaintiff, you have options to add a third party either by: (i) adding another Defendant through your Counterclaim, or (ii) by filing a Third Party Claim against a person you believe is responsible for the Civil Claim against you. These steps are complex and legal advice is advised before taking either step.

After filing your Dispute Note

Once you file a Dispute Note, the next steps in the action could either be: (i) Mediation; (ii) a Pre-Trial Hearing; (iii) a Trial; or (iv) a Binding Judicial Dispute Resolution. The Clerk of the Court will decide the best option and notify all parties of the details (date, time and location) by mail. A matter may be referred to Mediation any time after the Dispute Note is filed.

A Pre-Trial Hearing may be set to try to reach an agreement, to simplify the issues going before the Court or to obtain admissions to speed up the hearing process. The Court may order or give directions on matters raised or considered in the Pre-Trial Hearing. It may set out the results, amend or strikeout the pleadings and give any direction appropriate to the trial.

A Binding Judicial Dispute Resolution is an informal process involving a meeting between a Judge, you, and the Plaintiff where the dispute is reviewed as a whole and both parties are fully expected to try and reach a settlement. If no settlement is reached between the parties, the Judge gives a binding decision that cannot be appealed. Both you and the Plaintiff have to consent to this process after the Court determines a Binding Judicial Dispute Resolution is appropriate.

If you ignore the claim

If you ignore the claim, the Plaintiff can ask the Court to note you in default. The Plaintiff will apply to the Court for Default Judgment against you for the amount of money, or other damages they sued you for. A Judge will assess the Plaintiff’s claims and supporting documents and determine an amount to be paid. If the Plaintiff is successful, the Court issues a Certificate of Default Judgment against you. The Plaintiff can then file the Certificate in the Court of Queen’s Bench, which allows the Plaintiff to take collection proceedings against you including: seizure of assets, registration against land, or garnishment of your wages or bank account.

You can still defend yourself after the default proceedings begin if you request of the Court an opportunity to provide adequate reasons for failing to respond to the Civil Claim. The Court may be willing to hear from you still and could potentially set aside or vary a Default Judgment. For example, you may have the Default Judgment set aside if you were not properly served the Civil Claim. If the Court agrees to set aside the Default Judgment, you must file a certified copy of the order setting aside the Default Judgment at the Court of Queen’s Bench, otherwise the Default Judgment will be executed and collection proceedings against you will proceed.

“I Want to Dispute the Claim, What Do I Need To Do?”, Alberta Provincial Court website. This section includes a link to the Dispute Note form to be filled out and filed with the Court. < https://albertacourts.ca/pc/areas-of-law/civil/claims/served> accessed August 2, 2020.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.