Small Claims
Slaw readers likely know that there are special courts in Canada that have the jurisdiction to decide many types of civil claims where the monetary value of the claim is considered small. In my jurisdiction, until July 30, 2014 the upper limit for a Provincial Court of Alberta civil claim is $25,000. The upper limit of $25,000 also applies in British Columbia, Nova Scotia, Newfoundland and Labrador, Ontario, and in the Yukon.
The Territorial Court of the Northwest Territories can hear civil disputes up to $35,000. Until August 1, 2014, the NWT has the highest monetary limit in Canada for hearing a small claim. After that date, the highest limit for a small claim will be in Alberta: $50,000.
$50,000 is not really small in my mind. Here is why. Let’s take a salary that is pretty standard across the country for a good frame of reference. A Registered Nurse. For ease of calculation, lets say that an average nurse’s salary is $83,000 per year before tax (this is the higher side of the averages). Consider the average household expenditures (as of 2012 from Statistics Canada) are over $75,000.
When you consider that a nurse making $83,000 per year in Alberta will take home around $60,000 after taxes and benefits, a “small claim” that is a close race with full time professionals annual salary doesn’t seem very small, does it?
Do you think raising the limits in small claims courts will improve access to justice?
The question is, I suggest, ‘small compared to what?’ One relevant answer is ‘compared to what a lawyer can economically represent someone about’. A variant of that is ‘compared to what a lawyer can economically use the usual rules of civil procedure for’.
While the experience in different jurisdictions varies, I suspect that in Alberta (and elsewhere), few lawyers would would want to take on a case worth less than $50,000, especially if bound by the full-scale rules of court.
So yes, raising the limit increases access to justice if it permits parties to be represented by counsel, or to use simpler and more understandable rules of procedure if they need to represent themselves.
As the floor rises on what’s considered feasible for an ordinary track supreme court action, it’s reasonable to expect that something must change to accommodate the underserved gap between modern small claims caps (currently $25k) and the $100k mark. Raising the small claims cap is not the only mechanisms available (the Supreme Court in BC has “Fast Track”simplified procedures for claims under $100k), but I can see how a higher limit improves access to justice in at least three ways:
1. Small claims offers less risks for plaintiffs due to limited costs consequences.
2. Small claims offers more straightforward procedure, which makes self-representing easier.
3. For people who would not prosecute their claim without a lawyer, the higher upside potential, and the still-low downside, might tip the balance in favour of hiring a lawyer for those claims near the new upper limit.
It’s worth considering that the above mostly relate to a single measure of “access to justice”, but there are more ways one can assess. Ensuring meritorious claims are brought forward and not stifled by unintended barriers at the threshold of the courts is an important objective, but it’s mostly an economic objective. Another legitimate objective is that societal stresses are relieved in lawful and timely ways. In my experience diversion to ADR (e.g. small claims courts’ mediation programs) were very effective at increasing access to justice, at least by that measure.
The next frontier in BC at least is the civil resolution tribunals, where it seems that the idea of access to justice will extend more to the later measure, and less so the former. The real question there is whether pulling the lawyers from the equation will foster meaningful access to justice… can you limit access to advocacy and yet obtain greater access to justice?
The small in “small claims” isn’t meant to be an objective assessment of what is or isn’t small. It’s a comparison to the totality of claims in the court system. The limit is meant to place a certain number of claims within the jurisdiction of a simplified court process. As somone who works with the public and self-reps trying to navigate our court system every day, I can say that increasing the number of claims that people can access through that simplified court process will definitely increase access to justice. Will it solve all of the problems? No. But it’s a start.