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| Business |
 Suing
For Damages
- Taking Care of Your Legal IssuesBy Heidi T. Machl Of Paralegal Plus You have suffered damages and resolution is nowhere in sight. Is it time to sue? To sue someone means that you are bringing your problem and issue before a Judge for a legal decision. The Civil Division of Provincial Court is designed for ordinary people to present their legal problems without the need to incur the expense of hiring a lawyer. It is your option to hire a lawyer or a paralegal to assist you as your agent in presenting your case before the Court and to assist you with the procedural steps to prepare your claim. This agent can act on your behalf, question any party, interview any witnesses for you and sum up the case for you. An agent will not be provided by the Court. Before you sue, it is recommended that you make a written demand of the other party for payment by a specific date in the hope that you do not have to take the matter to Court. This formal demand also shows to the Court that you tried to settle matters yourself prior to applying to the Court for a ruling. You can sue for damages up to $25,000.00 in Provincial Court. If your claim is for more than the Civil Claim limit, you can drop the extra amount (this is called “abandonment”) or take your entire claim to a higher Court (Court of Queen’s Bench) to sue for the total amount of the claim. You can start your action in any Provincial Court in Alberta, but there are a few matters that you cannot sue for. These include matters involving ownership of land, matters involving willful and malicious prosecution, matters involving false imprisonment or defamation, libel and slander; or matters involving government. In many cases, you cannot sue after a certain period of time has gone by (this is called the “Limitation Period”). The timing depends on your reason for suing. For example, for general debt such as contracts, loans, damage deposits and rents, you must sue within two years from the time the debt began. An exception to this rule does exist. If it has been stated in writing that the person knows the money is still owed, or if the person had paid a portion of the debt owed, the two year limit starts on the date the debt was last acknowledged by the other party. If you are suing for injuries or damages caused to yourself or your property, you must sue within two years from which the injury or damages occurred. If you wish to sue your own insurance company for failure to pay you as a result of an accident, you must do so within one year. Limitation Periods and the determination of same is a very complex area of law and you should consult a lawyer if there is any doubt of the limitation period affecting your case. Is it worth taking this step? What are my chances of success? Am I better off to “learn from the experience”? Suing will cost you time and money. There are filing fees ($100 for claims up to $7,500 and $200 for claims $7,500 to $25,000 as of the date of writing this article), witness fees, and you cannot sue for wages lost while attending the hearing, usually one morning or afternoon. Also, you will spend some time preparing your claim and obtaining appropriate forms from Provincial Court. You may also incur additional costs to have the defendant served with the Civil Claim, or to serve the witnesses with the Notices to Attend. If you win, your costs will usually be included in the amount the Judge orders the defendant pay you (the “Judgment”). You should also think about the person you want to sue. Do you know where that person is? If you win, will you be able to collect your Judgment? The person may not have money now, but financial situations can change and your Judgment will be valid for ten years. Do you have enough evidence to support your claim? If it is just your word against that of the other person, it may be difficult to prove your case. Any documents, for example, copies of letters, bills, etc., or witnesses may be beneficial in proving your case. Who do you sue? Sometimes people sue the wrong person and as a result, they lose their case and have spent a lot of money, time and effort, without success. As a general rule, you are allowed to sue with one Civil Claim form as many people, companies or firms as are involved in the matter. When suing an individual or a group of individuals, use the last and first name. Do not use initials, as initials do not sufficiently identify the person being sued. If you are suing a business, remember that there are two types of businesses: incorporated and unincorporated. The differences between the two are very important. An incorporated business has limited liability as an incorporated business is a separate legal entity from the owner of the company. An incorporated business can only be sued in the name of the business and the full name of the business must be noted on the Civil Claim. To find out the exact name for an incorporated business or whether a company is incorporated, a Corporate Search should be conducted. Sole proprietors and partnerships are called unincorporated businesses. These businesses must be sued in the name of the owner and you should put the name of the business and the full name of the owner in the Civil Claim. To find out the owner of an unincorporated business and the address of the owner, you should conduct a Trade Name Search. *This article was written with assistance from information provided by the Alberta Courts. It is intended to give information about the Civil Division at Provincial Court and is not intended to give legal advice for which a lawyer should be retained. The law and its interpretation by the Courts frequently change. Heidi of Paralegals Plus & Calgary Divorce Management Services provides paralegal assistance in family law, Incorporation, Wills, Personal Directives & Power of Attorney & Civil Claims. Call 403.668.0397 or visit heidi@www.paralegalsplus.ca |