Has someone committed a wrong against you? Are you thinking of suing? Here are some issues you should first consider.
1. Does your agreement allow you to sue?
If your dispute concerns a contract, your options for seeking payment for fees may be limited by the contract itself. Some agreements state that any dispute must be dealt with through mediation or arbitrator (who is paid to make a decision) or both before you may go to Court. This means that, rather than filing a lawsuit, you must take the dispute to an independent third party mediator or arbitrator and ask for their assistance in reaching a resolution. The difference between mediation and arbitration is that a mediator can only encourage the parties to negotiate and suggest possible compromises. An arbitrator however, has the power to impose his or her decision on the parties, whether they like it or not. Even if the agreement does provide for mediation or arbitration, you should still consult with a lawyer who can assist you in presenting your case to the mediator/arbitrator and who can advise you as to your options if the outcome of mediation/arbitration is not satisfactory to you.
2. Will you be able to collect?
Suing someone is all very good and well, but if you can’t enforce the judgment you obtain, you’ll be no better off than before. It’s important to understand that even if a judge rules in your favour and orders your opponent to pay compensation to you, it’s your responsibility to actually collect the money from your opponent. The Court do not provide assistance with helping you collect your money. You can do so in a variety of ways including by seizing property your opponent owns and by causing his or her employer to pay a portion of his or wages directly to you. However, before you start the lawsuit, you should investigate to see whether your opponent owns any property. If not, the lawsuit may not be worthwhile. You should consult with a lawyer for guidance on how to determine what property your opponent owns.
3. Have you waited too long to sue?
Ontario law generally requires that you start a lawsuit within two years of having discovered that you were owed money. There are further rules for specific kinds of disputes and there are exceptions to all these rules. If the timing of the lawsuit is a potential issue, you should consult with a lawyer for assistance in understanding these rules.
Waiting too long to start your lawsuit does not mean that you cannot sue. What it means that if you sue, your opponent may request that the court throw out your lawsuit because you sued too late.
4. Do you have enough evidence?
If you are the one suing, it is your responsibility to prove that your opponent has done something wrong and that you have suffered damages as a result. The judge will not simply take your word for it. You will need evidence. Evidence can be documents such as contracts, letters and emails. Evidence can also be presented through the testimony of witnesses. Ideally you should have evidence to back up every aspect of your story that your opponent is likely to dispute. Before you start the lawsuit, you should gather together all of your evidence and see whether it will be sufficient. A lawyer can give you valuable advice with respect to the evidence you require and how you might obtain this evidence.
5. Have you tried to negotiate?
Lawsuits are stressful, time-consuming and expensive. Before you start, you should make one last effort to resolve the situation by negotiating a settlement with your opponent. It may be a good idea to hire a lawyer to send a letter to your opponent. This will demonstrate that you are serious about taking legal action if the dispute cannot be resolved in a satisfactory manner.
As you can see, there is a lot to think about before starting a lawsuit. If you’ve considered the above and you’re still not sure how to proceed, please feel free to give us a call and we’d be more than happy to discuss your options with you.