Things to consider before suing – First Thing’s First
Ensure you are not out of time to sue.
Many parties do not realize that there are time limits on suing in any court, not just the small claims court. In general, under the Limitations Act, parties have until the second anniversary from the date of discovering the claim to commence a lawsuit. For instance, say you last invoiced someone on January 31, 2006 (and discovered you would not be paid then) and you wish to sue for that unpaid invoice, you would have until January 31, 2008 to sue.
Claim for Relief Within the Jurisdiction of the Small Claim Court Only
In the Ontario small claims court people typically claim for monetary damages for unpaid invoices, debt collection, breach of contract, wrongful dismissal, etc. Sometimes, litigants claim for specific property. However, time and again we have seen claims where litigants claim for injunctive relief such as “Make him stop mowing his lawn at one in the morning” However, many people fail to realize that an Order to refrain someone from doing something, is an injunction and injunctions cannot be granted under theSmall Claims Court Rules (subject to some exceptions, the details of which are for a later article). Don’t find yourself at trial being informed by a Judge that you sued in the wrong court, ensure you claim for something that can be awarded in Ontario’s small claim courts.
Ensure You Do Not Attach Any Evidence That Can Hurt Your Case.
It is usually helpful for the judge and advantageous to your small claims case to attach evidence to your claim. After all, the claim is the first document that the small claims judge will look at, so why not put your best foot forward. However, oftentimes we have seen litigants throw in every document but the kitchen sink into their claim without checking if it actually helps their court case. This practice can be disastrous. Say, for instance, you were suing Jim Smith for an unpaid account and you attached an email which states “Jim, you need not pay the entire invoice amount”. Need we say more?
Avoid Typos When Naming The Defendant On Your Plaintiff’s Claim.
Know the name of the person you’re suing. All too often we have seen claims with too many vowels, too few consonants, the wrong name, etc. The ramifications can be awful. For instance, say you wish to sue Christopher Jones (note the “e” in the last name) in the Toronto Small Claims Court. Your Plaintiff’s Claim says “Christopher Jonas” (note the “A” in the last name). The presiding Deputy Judge has no idea you have made a mistake and ultimately you are awarded a small claims judgment. When you try to enforce you are devastated to learn you have sued the wrong party and cannot enforce on your judgment.
The same idea goes for ensuring you have named a corporation correctly. In fact, most lawyers and paralegals will not sue a company without first obtaining a corporate profile report (a.k.a. “corporate search”). The corporate profile report is used primarily for ensuring you have named a corporation correctly but can also be sued for the purposes of ascertaining a proper address for service and the names of the corporation’s directors.
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