When the famous horror film director Alfred Hitchcock was asked, “what scares you?”, the scream master replied “being involved in a lawsuit”.
[stextbox id=”alert” bgcolor=”fab504″]A lawsuit can be frightening. With timely, professional legal advice, a lawsuit does not have to scare you. Before making a claim, you will naturally want know what’s involved. You should think about many factors. You will need to gather several pieces of information. Below are some of basic things to consider before you start a claim.[/stextbox]
1. Is there an alternative to starting a lawsuit?
Going to trial to have a judge hear evidence and decide your case may be one of the most expensive and stressful ways to resolve your dispute. Using the courts to resolve a dispute can be not only costly but also slow and time-consuming. You should be clear that you have the money and stamina for it. Before starting a court case you may wish to consider other dispute resolution options, such as Negotiation, Mediation and Arbitration.
2. Whom do you want to sue?
When deciding whom to sue, some of the things you may want to think about include:
If you win, will you be able to collect from the person/business?
Even if you “win” (get a favourable judgment), you may have to enforce the judgment. You might have a hard time collecting any monetary award. For you to collect, the person/business (“the judgment debtor”) must have one of the following:
- assets that can be seized and sold, or
- a debt owed to them by someone else (e.g. bank account, employment income) that can be garnished.
Does the person/business owe others money?
As the plaintiff who is given a monetary award in a court decision, you are a judgment creditor in relation to the defendant, which is a judgment debtor. But there may be other creditors who are already waiting to collect their judgments against the person/business. You may be able to find out by contacting your local credit bureau, enforcement office, land registry office, and/or court offices (a fee may be payable).
Even if the person/business does not have money now, you may be able to collect your judgment in the future. The award does not expire.
Do you know the legal name of the person or business you wish to sue and their current residential or business address?
You will need correct information about whom you are suing to properly prepare and serve your claim, and to enforce a judgment if you are successful.
You might need to search a corporation or registered business name.
3. In what court should you sue?
If your claim is for $25,000 or less or for the return of personal property valued at $25,000 or less, not including interest and costs, you may wish to bring your claim in Small Claims Court.
If the amount of your claim is worth more than $25,000, you can still choose to use Small Claims Court because it is simpler and less expensive. However, if you choose Small Claims Court you cannot claim more than $25,000. You will have to give up any amount over $25,000 and cannot start a claim at a later date for the amount in excess of the $25,000.
If you are proceeding with a claim for more than $25,000, you must start your claim in the Superior Court of Justice. The Superior Court of Justice deals with almost all types of civil cases except:
- Cases where a law says that the matter must go to a special government agency or tribunal. These include labour relations, residential tenancy complaints and workers’ compensation matters.
- Cases where the Federal Court has control. These include federal tax matters, immigration matters, and patents and trademarks.
4. What information do you have to support your claim?
You will have to prove your case on the civil standard; that is, on the balance of probabilities. To do this, you will need evidence. Consider what people can offer supporting evidence as witnesses. Consider what written materials (e.g. correspondence, contacts, invoices, receipts, returned cheques, pay stubs, bank statements) you have to support you. If you have no witnesses or supporting documents, your claim may still be successful. But if it is just your word against the defendant’s, it may be more difficult to prove your case.
You should have a clear recollection of what happened and when. You must include in your statement of claim a summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
The other party will be permitted to respond to your claim (in a statement of defence). He or she may give evidence that will affect the judge’s view of the merits of your claim.
5. When should you sue?
How long ago did the incident take place?
There may be a time limit on how long you can wait before starting a lawsuit, which is set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. In general, the basic limitation period is two years (section 4). If you are uncertain about what limitation period applies to your case, you should consult a lawyer. Don’t delay.
Can you attend at the court office to file documents? Can you attend in court for a case conference, a pre-trial, and a trial?
To pursue your claim you will have to attend court several times. You or someone acting on your behalf must attend the court office to have documents issued. You will also be required to attend court for any case conferences, for a pre-trial and for a trial. This can be a long, protracted process.
6. How much will it cost you to make a claim?
The cost of a lawsuit will vary from case to case. The costs can quickly add up. Costs include court fees for filing a claim and for filing in other steps in a proceeding, such as a motion. For instance, the cost of issuing a statement of claim or notice of action in the Superior Court of Justice is generally $181 (Administration of Justice Act, O. Reg. 293/92, am. O. Reg. 247/12).
If you win, there may be additional fees to enforce (attempt to collect) the judgment. You may also personally incur expenses to enforce a judgment.
Other costs related to your lawsuit might include legal fees (if you hire lawyer), photocopying fees for relevant documents, and fees for expert witnesses.
If you win, the judgment might also include an award of costs.