Civil Litigation
What is Civil Litigation?
Civil litigation is the term applied to the court process that is sometimes needed to obtain a legal remedy when a person’s rights have been infringed upon or injury or loss caused to a person by the actions of others, in circumstances where the person from whom a remedy is called for is unwilling to so provide. Court is the forum and the process by which such claims are brought for a vindication of the claimant’s rights
The subject matter of a civil court proceeding can be as varied as the collection of a debt, settlement of a claim against an insurer company for compensation under a policy of insurance, compensation for injuries caused by the negligence of others, the breach of a contract in a business transaction, and so on.
Any set of facts if proven to the satisfaction of the court that the law accepts as an appropriate basis for ordering a remedy from the defendant(s) can be made the subject of a legal action filed in court in which a remedy is sought, whether such is the payment of money, the return of property, or an order that someone refrain from or do some act that the law requires of them.
In addition to the courts, various tribunals and boards have been established under both Federal and Provincial legislation to adjudicate and determine various claims of right, including: appeals of decisions made in relation to entitlement to injured worker’s compensation, appeals of decisions of the Employment Insurance Commission denying benefits, appeals from decisions of government departments such as the Federal department of immigration, and so on. Some rights of appeal of such decisions take place within the government department; in other cases the appeal is to the courts.
In New Brunswick, there are two courts that have jurisdiction to hear civil claims: The Court of Queen’s Bench, Trial Division, which has original jurisdiction to hear any civil claim, regardless of monetary limit, and the Small Claims Court of New Brunswick, whose adjudicators currently heard civil claims for debt or damages the amount of which did not exceed $6,000.00.
The Court of Queen’s Bench, Trial Division, Rules of Court and the Small Claim’s Court Act, and its regulations which include Small Claims Court forms govern the procedures and documents which must be used to commence or defend a claim to a hearing and decision in each of these Courts.
While the Court of Queen’s Bench has the jurisdiction to hear any claim that could be brought in the Small Claim’s Court of New Brunswick, the Rules of the Court of Queen’s Bench create a discretion in that court to deny even a successful party court costs in circumstances where it concludes that the claim should have been brought in the Small Claims Court.
Conversely, any claim, even involving an amount in excess of the $6,000.00 monetary limit of the Court, can be brought in Small Claims Court if the claimant elects to waive any claim of entitlement to any amount in excess of the Court’s $6,000.00 claim limit.
There are certain types of claims, including a claim based on libel or slander, which cannot be brought in Small Claims Court regardless of the amount of compensation that a claimant seeks, with jurisdiction over these claims being reserved exclusively to the Court of Queen’s Bench.
The rules of the Small Claims Court are simplified and the exposure to an award of costs against unsuccessful litigants, whether claimant or defendant, significantly limited. [See section 51 of the regulations.] The Rules of Court of Queen’s Bench, on the other hand, dictate that normally “costs follow the event,” meaning the loser of the case (whether plaintiff or defendant) must pay the winner’s their court costs, which are prescribed under a Tariff of allowable fees and disbursements. [See Rule 59 of the Rules of Court].
Before commencing or defending any legal proceeding, whether in the Court of Queen’s Bench or Small Claims Court of New Brunswick, a consultation with a lawyer is a wise course of action. A lawyer can assist in advising you of your legal rights, evaluating your chances of success, and advising you on practical matters of forms and procedure, even in circumstances where you may thereafter wish to pursue the claim on your own behalf. There is no charge by our office for an initial consultation either as a potential claimant or defendant in a court proceeding.
In addition to a consultation with a lawyer, useful information on small claims practice in New Brunswick can be found on the Public Legal Education Service of New Brunswick (PLEIS).
Recently, the Attorney General for the Province announced his intention to eliminate the New Brunswick Small Claims Court, and have all claims, regardless of their monetary limit revert to the Court of Queen’s Bench, Trial Division. This move is opposed by the New Brunswick Branch of the Canadian Bar Association. To date Bill 66 has been passed to allow this change in jurisdiction to be made, but such legislation has as yet not been proclaimed in force and effect.
The draft of the Proposed Queen’s Bench Rule of Court respecting Small Claims following the proclamation of Bill 66 into law includes such features as an increased monetary jurisdiction for Small Claims to a maximum of $30,000.00, continued relaxation of the rules of evidence pursuant to section 80.18, and appeal to the Court of Appeal with leave and on questions of law only. The current appeal process of a hearing De Novo of appeals by the Court of Queen’s Bench is to be abolished.
Particular Claims
Claims for the repayment of debts or for compensation for injuries suffered through the negligent acts of others (referred to as torts), claims based on a refusal by insurers to pay compensation under policies of insurance for losses suffered, injury and loss resultant from a failure by a party to a contract to perform their obligations under such contract, and other similar violation of legal rights, are the sorts of matters that can be made the subject of a legal proceeding seeking a Court-ordered remedy.
If you believe that your legal rights have been compromised or injured by the actions of others, an initial and complimentary consultation with Dunsmuir Law will permit you to make an informed decision as to your remedies.
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