The Defendant in Small Claims Action

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta.  This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic discusses your options as a defendant in a Small Claims Court action. You are the defendant if you have been served with a civil claim. You have several options to respond to the claim.

First, try to negotiate a settlement with the plaintiff.  If you know you owe money to the other party, called the plaintiff, but not as much as claimed, offer what you think is reasonable. If you are unable to pay it all at once, try to arrange a repayment plan. If you are able to agree on a settlement, notify the Civil Division of the Provincial Court in writing that the matter has been settled or complete and arrange with the plaintiff to file a Notice of Withdrawal.

Second, you can pay the claim and costs to the Court. The clerk will notify the other party that payment was made into Court.  If the plaintiff accepts the payment in full satisfaction of the claim, the clerk shall pay the money accordingly. If you are successful in defeating the claim or the plaintiff is successful but is not awarded as much as you offered to pay, the Judge may order costs to be paid by the plaintiff.  This also applies if you filed a counterclaim for an amount of money.

Third, you can defend against the claim by filing the Dispute Note with the Civil Division Court where the civil claim was filed.  Provide all details in the Dispute Note so that the Court knows your reasons for defending against the claim. This form is available at the Civil Division Claims office.  File the claim by delivering the Dispute Note in person or by mailing it to the Civil Division Courthouse where the action started.  Once the Dispute note is received, the Clerk of the Court will set a mediation date, a pre-trial hearing or a trial date and notify all parties by mail.

The Court may refer the matter 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. 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. The parties involved in the pre-trial hearing must give their consent to have the same Judge hear the trial.

Finally, you could ignore the claim and not respond.  If you ignore the claim, you will be noted in default.  The plaintiff will ask the Court for judgment for the full amount of the claim if the claim is for a debt.  If the claim is to have damages assessed, a date for a hearing will be requested. You will be notified of this date and have 10 days to respond to this hearing.  The Court will set aside or vary the default judgment if requested and the reasons you provide are considered proper. For example, you may have the judgment set aside if you were not properly served.  If the Court agrees to set aside the default judgment, file a certified copy of the Order at the Court of Queen’s Bench to avoid the execution of the Order. If you do not file the Order, your property may be seized or your earnings or bank account may be garnisheed.

The Court may order the claim dismissed if the plaintiff does not appear on the date set for the hearing. If you filed a counterclaim, the counterclaim will be heard at new hearing date.