Things to consider before deciding whether to sue

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The information provided below is offered to help you in your decision to make a claim if you do not have a lawyer. The information provided below is not legal advice, and it may not apply in every situation.

Before making a claim, there are a number of factors you may want to consider, and a number of pieces of information you will need to collect. Here are some of things to consider before you start a claim:

a. 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 ways to resolve your dispute.

Before starting a court case you may wish to consider other options, such as:

  • Negotiation
  • Mediation
  • Arbitration

i. Negotiation

Parties can discuss the steps they could take to resolve their dispute. Negotiation can occur directly between the parties or indirectly through agents acting on behalf of the parties, such as lawyers.

Before you start a claim in court you might consider whether it would help to talk to the other party or send a letter to the other party to let that person know what you are seeking and why you feel they should do or pay what you want.

You may be able to settle your dispute with the other party to avoid the time and expense of going to court. This means that you may need to consider a compromise. Think also about the possibility that you might lose the court case and be ordered to pay the other party's costs.

You may also consider whether a complaint to the appropriate body would be an alternative. For general information about complaints against lawyers, a private bailiff, a judicial official, an insurance company, visit the Justice Ontario website at: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/.

For general information about your rights as a consumer and on complaints processes under the Consumer Protection Act visit the Ministry of Consumer Services website at: http://www.sse.gov.on.ca/mcs/en/Pages/What_Are_My_Rights.aspx.

ii. Mediation

Mediation is another way for people to settle disputes or lawsuits outside of court.

If you and the other party cannot reach an agreement, a mediator may be able to help improve communication and help you reach an agreement.

Mediators are neutral third parties who can help you agree on issues. A mediator helps you to work out a solution with the other party. A mediator will encourage compromise.

What are the benefits of a mediation session?

  • It allows the parties to work out their own solutions.
  • It may be cheaper and faster way to resolve a dispute than going to court.
  • It is a less formal process than court.
  • It is a private process, unlike court.
  • The information shared during a mediation session can be kept confidential and not available to media or other outside parties.
  • It may allow you to maintain your relationship with the other party. It may reduce future conflict by improving parties' communication and problem solving skills.

Will I be forced to attend a mediation session?

Mediation is voluntary if it happens before a court case starts. You and the other party must be willing to try to work out a solution. You must both agree to the mediation.

If you do not mediate at the beginning of your civil dispute and decide to sue in court instead, you could still later participate in a mediation session.

During your court case you might be required to participate in a mediation session. Mediation is mandatory in most civil court cases in Toronto, County of Essex (Windsor) and Ottawa. Mediation is also mandatory in these three regions for contested estates, trusts and substitute decision proceedings. For more information about the Mandatory Mediation Program, visit the Ministry of the Attorney General's website at: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp.

How long is the mediation session?

The length of time of a mediation session, and the number of sessions required, will depend on many factors, such as:

  • Number and type of issues to be mediated
  • Amount of conflict between the parties
  • Degree of communication and cooperation among the parties.

Where is the mediation session held?

The mediation session may be held at any location that is convenient and acceptable to the parties, including the mediator's office and the office of one of the parties or one of the lawyers.

Do we still need lawyers?

The mediator does not take the place of a lawyer. Each party is encouraged to get independent legal advice before and throughout the mediation process.

It is very important for you to know about your legal rights and obligations and how the law affects your issues. Each party should review the final mediated agreement with his or her lawyer before signing.

If you do not reach an agreement during mediation, you can start a court case or continue your court case.

Who attends the mediation session?

All parties should attend the mediation session. If a party is represented by a lawyer, the lawyer must also attend.

What happens during a mediation session?

Before the mediation session begins, the mediator explains the mediation process and reviews the terms of the mediation, which may be set out in a written "agreement to mediate". Although mediation is an informal process, the mediator structures the discussion. All parties have a chance to present their side of the story, to explain what is important to them and to ask questions.

The mediator will help parties to reach a fair and lasting settlement. The mediator does not take sides or make decisions for the parties. Mediators cannot give you legal advice.

Who pays for a mediation session and how much does it cost?

Parties may share the cost of a mediation session. Parties pay mediators directly for their services. A mediation session is generally less expensive than suing in court.

There are special rules that apply to mandatory mediation sessions under the Mandatory Mediation Program (in Toronto, Windsor, Ottawa). For more information visit: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp.

How do we choose a civil mediator?

Generally, everyone involved in the mediation must agree on who the mediator will be.

In Toronto, Ottawa and Windsor, if the parties do not choose a mediator, a mediator may be assigned to certain civil and estates and trust cases under the Mandatory Mediation Program (see: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp)

Mediators come from different professional backgrounds. They may be lawyers, psychologists, or financial professionals, like accountants. Select someone who has the right skills for the issues in your case. You or your lawyer should ask questions to determine if the mediator is right for your situation. The information to ask the mediator includes:

  • Type and amount of mediation training in the area at issue
  • Professional background (for example: law, social work, education, psychology)
  • The mediator's fees and expenses
  • The mediator's references
  • Times and dates that mediation sessions can be scheduled.

How can we find a civil mediator?

Civil mediation services are offered by private practice mediators. A mediator may be a member of one of the following organizations, each of which provides standards of professional conduct and complaints processes:

For a list of civil mediators on the roster of the Mandatory Mediation Program (in Toronto, Ottawa and Windsor) visit: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp.

You should determine whether mediation services are available for the type of dispute at issue. For instance, you can:

Does the civil mediation process apply to family mediation?

No. For information about mediation in family cases (eg. divorce, child custody and access, support), visit: www.attorneygeneral.just.gov.on.ca/english/family/divorce/mediation/.

iii. Arbitration

Arbitrators are neutral third parties.

Parties who arbitrate a case must agree to be bound by any decision made by the arbitrator. A decision made by an arbitrator is legally binding and enforceable against the parties. Arbitration is a less formal process than a trial and many people find it a more comfortable process than going to court.

What are the benefits of arbitration?

  • It can be a fast and effective way to reach a final resolution to a dispute.
  • It allows parties to choose who will decide their case. Parties can choose a decision maker who is an expert in the area at issue.
  • An arbitration hearing can be private and confidential. The parties can agree that the information from an arbitration will not be available to the media or other outside parties.

An arbitrator considers the evidence presented to him or her by the parties. The arbitrator cannot exclude evidence that a court would otherwise admit. Arbitration is governed by the Arbitration Act.

In terms of cost, an arbitration process may be more complicated than a mediation and is generally more expensive than mediation. Arbitration can be faster and be less expensive than suing in court.

How can we find an arbitrator?

Arbitrators may be members of one of the following organizations, each of which provides standards of professional conduct and complaints processes:

You should determine whether arbitration services are available for the type of dispute at issue. For instance, you can:

  • Arbitrate a dispute with an insurance company about auto accident insurance benefits through the Financial Services Commission of Ontario. Visit: http://www.fsco.gov.on.ca/English/insurance/auto/drs/.
  • Arbitrate a dispute with a vehicle manufacturer through the Canadian Motor Vehicle Arbitration Plan (CAMVAP). This organization provides a neutral third party to resolve disputes between consumers and vehicle manufacturers about alleged manufacturing defects or the manufacturer's new vehicle warranty when the vehicle was made in the current or previous four model years. This free service is available across Canada. You can reach CAMVAP toll free at 1-800-207-0685 or www.camvap.ca.

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b. Whom do you want to sue?

Another thing to consider before deciding to start a lawsuit is whom you want 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" (obtain a judgment in your favour), you may have to enforce the judgment. In order for you to collect, the person/business must have one of the following:

  • money
  • 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?

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.

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.

For information about how to search a corporation or registered business name, contact the Companies Helpline, Ministry of Government Services at (416) 314-8880 or toll free in Ontario at (800) 361-3223. You must pay a fee for the search and you must have the exact name of the registered business or corporation or the Ontario corporation number.

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c. Where should you sue?

Another thing to consider before deciding to start a lawsuit is where should you sue? Some of the things you may wish to think about include:

Which is the right court to start your claim?

i. Small Claims Court

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.

For more information about Small Claims Court, visit the Ministry of the Attorney General website at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/.

ii. Superior Court of Justice

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:

Which court location will issue your claim?

Unless a statute or rule directs otherwise, you may commence your proceeding at any court office in Ontario. Note that a defendant may ask the court to have the case transferred to a different court location.

For a list of court addresses, click here or visit: http://www.attorneygeneral.jus.gov.on.ca/english/courts/Court_Addresses/.

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d. What information do you have to support your claim?

Do you have enough evidence to support your claim?

You will have to prove your case. Consider what witnesses and/or documents you have to support you. If you do not have supporting documents (e.g. you entered into a verbal agreement) or witnesses, your claim may still be successful. However, if it is just your word against the other person's, it may be more difficult to prove your case.

Do you have a record of any payments, such as returned cheques or a clear recollection of what happened and when?

You will be required to include in your statement of claim a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.

Remember, the other party is able to respond to your claim and may give evidence that will affect the judge's view of your entitlement.

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e. 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. If you are uncertain about what limitation period applies to your case, you should consult a lawyer.

Can you attend at the court office to file documents and/or attend in court for a trial?

To pursue your claim you must attend court on a number of occasions. You or someone acting on your behalf must attend the court office to have documents issued. For more information on issuing documents, see Bringing a claim. You will also be required to attend court for any case conferences, for a pre-trial and for a trial.

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f. How much will it cost you to make a claim?

Court fees must be paid to file a claim and for most steps in a proceeding, such as filing documents for a motion. These fees are payable to the Minister of Finance and may be paid at the court counter. The number of steps in a proceeding varies from case to case.

If you are successful and are granted a judgment, the judgment may include the Court fees you have paid.

If the debtor refuses to pay even after you have a judgment, additional fees must also be paid to enforce (attempt to collect) the judgment. You may also incur expenses to enforce a judgment.

If you are not able to afford the Court fees, you may be eligible for a Fee Waiver.

You should expect to pay other costs related to your lawsuit as well. These might include fees charged by your lawyer for legal services, photocopying fees for relevant documents, and fees paid to expert witnesses. The cost of a lawsuit will vary from case to case.

For more information on Court Fees and Fee Wavier visit: http://www.attorneygeneral.jus.gov.on.ca/english/courts/default.asp#fees.

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