Hergott: Call to increase maximum dollar award to $50,000

After purchasing a home, a couple learned it would require repairs totaling about $50,000.

I caught a portion of a CBC Radio news story the other day. After purchasing a home, a couple learned that there had been problems that would require repairs totaling about $50,000.

The focus of the news story seemed to be the inadequacy of Property Condition Disclosure Statements in protecting purchasers.

That may be an important issue, but I saw an issue from this more important to me—access to justice.

The purchasers seemed to think that they had a “slam-dunk” case against the folks who sold the house and the real estate agents involved, all of whom they believed were aware of and failed to disclose the problems with the home.

They expressed frustration, though, with estimates they had gotten from lawyers that it would cost $10,000 to $20,000 to prosecute the matter in court.

When compared to a potentially $50,000 case, that legal expense to achieve justice seems disproportionate.

One “fix” would be for lawyers to stop charging so darned much. Of course, that’s not going to happen.

The other “fix” is to eliminate lawyers altogether.

That’s exactly what Small Claims Court is all about.

British Columbia’s Small Claims system is specifically designed to give access to justice without the need for a lawyer.

Every system of justice has its limitations, but I am impressed as all heck with our small claims system.

Commencing a small claims lawsuit is as easy as filling in the blanks of a one-page form.

The blanks have such complicated headings as “What Happened” and “How Much.”

There are easy to understand pamphlets explaining straightforward and accessible procedures.

There are two hearings. The first is a an opportunity to resolve the legal dispute at a mini-mediation presided over by a provincial court judge.

If a settlement is not reached, the next and final hearing is the trial.

The trial can be as simple as stepping into the witness box and telling your story, armed with whatever documentation might be relevant to your claim.

If one of the parties chooses to hire a lawyer, the judge is likely to even the playing field by helping the unrepresented party along to the extent possible.

Not only do you avoid the horrendous expense of legal fees to prosecute your case, you also avoid the risk of paying the opposing parties legal fees if you are unsuccessful because legal fees are not claimable in small claims lawsuits.

Unfortunately, the dissatisfied purchasers in the CBC news story cannot currently prosecute their $50,000 case in small claims court.

In 2005, the maximum dollar award in small claims was increased from $10,000 to $25,000. That increase reflected the reality that it made no sense to pay a lawyer to prosecute a claim up to $25,000.

At the time, it was contemplated that the upper limit ought to be increased to $50,000.

I think the time has come to do just that, so that those like the dissatisfied home purchasers can have affordable access to justice.

While I’m at it, I should mention another unfortunate limitation to small claims.

Our current legislation requires builders liens to be enforced in supreme court. The legislation needs to change to allow those liens to be prosecuted in small claims.

As it stands, a construction contractor has to hire a lawyer to enforce a builders lien in supreme court even if the claim is as low as $2,000 to $3,000.

And to tie this into the subject matter of my column, personal injury claims can be pursued in small claims as well.

If there is enough interest, I would be happy to offer free seminars to teach injured victims how to best prosecute a case without a lawyer in small claims. Tell that to the insurance adjuster who low-balls you.

Contact your local MLA and ask that he or she support these and other initiatives that will increase access to justice in this province.

 

 

This column is intended to provide general information about injury claims.  It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. Paul Hergott is a lawyer  at Hergott Law in West Kelowna.

 

paul@hlaw.ca

 

 

Just Posted

Documentary series features local wineries and restaurants

Quest Out West Wild Food launches Jan. 18

West Kelowna looking at three per cent tax increase

Council grapples with 2018 budget, rejects addition of more cops, firefighters

Tech funding announced for Kelowna post-secondary institutions

UBCO and Okanagan College are getting funding to expand their tech programs

Arbitrated settlement for Kelowna jail guards

Details of arbitration settlement in contract dispute not released

Kelowna art exhibition showcases connection to environment

The opening of Blue Renew – art:debris is Jan. 18

The snow capped hills around Carr’s Landing

Andre Paris has posted another drone video showcasing Lake Country’s beauty

Body discovered in burnt out car near Trail

Police report a body was found in the burnt out trunk of a 1999 Honda Civic

UPDATE: Highway reopened following fatal crash south of Armstrong

Highway 97A crash south of Pleasant Valley cross road near Spallumcheen claims a life

VIDEO: B.C. Lions sign defensive back T.J. Lee to contract for upcoming season

The four-year veteran had a team-high four interceptions and 49 tackles last season with B.C.

How an immigrant to Canada helped Donald Trump prove his mental health

Test that cleared Trump was developed by doctor associated with McGill and Sherbrooke universities

Premier touches on multiple topics ahead of Asia trade trip

Housing and childcare are expected to be the focus of the BC NDP’s first budget in February.

UPDATE: Friends mourn boy, 15, killed in Vancouver shooting

John Horgan: ‘No stone is to be left unturned until we find the perpetrator of this heinous crime’

VIDEO: Explorers uncover Canada’s deepest cave in Fernie

The cave, named Bisaro Anima, was confirmed to have broken the record on New Year’s Day

Canadian junior captain returns to Rockets lineup

Dillon Dube will be back in Kelowna’s lineup Wednesday night after world juniors and bout of flu

Most Read